Drugs & Pharmaceuticals Ltd. & Anr Vs. R.K. Shewaramani  Insc 383
(3 August 2005)
Pasayat & H. K. Sema Arijit Pasayat, J.
of the judgment rendered by a Division Bench of the Delhi High Court is
questioned by the appellants.
Court held that the termination of services of respondent by order dated
8.1.1991 was illegal.
basic facts in a nutshell are as under:
respondent-employee was at the relevant point of time working as a medical
representative of appellant No.1- company which undisputedly is
"State" within the meaning of Article 12 of the Constitution of
India, 1950 (in short the 'Constitution'). He was transferred from Delhi to Eluru in the State of Andhra Pradesh by order dated 17.6.1989.
that the respondent-employee had not joined the transferred post a charge sheet
was issued on 27.9.1989.
was another set of charges and the charge sheet was issued on 12.12.1989. While
these two charges were pending consideration in departmental proceedings, action
in terms of Rule 30A of the Industrial Drugs and Pharmaceutical Ltd.
Discipline and Appeal Rules, 1978 (in short the 'Rules') was taken. A
show-cause notice was issued requiring the respondent to show cause as to why
his services shall not be terminated on account of unauthorized absence from
duty exceeding 30 days. Rule 30(A) was introduced by way of an amendment w.e.f.
30th March, 1990 on the basis of a decision taken by
the Board of Directors on 24.4.1990. On receipt of the show cause notice the
respondent-employee took the stand that he had already been charge sheeted and
enquiry was going on and, therefore, the employer cannot be permitted to turn
around and by-pass the enquiry and take action on the basis of alleged amended
Rule 30(A). Company has realized that it cannot prove the charges in the
enquiry and, therefore, the enquiry was being by-passed. He wanted a copy of
the approval of the Board of Directors for amending the Rule 30(A) as done on
30.3.1990. The order of termination was passed keeping in view the unauthorized
absence and unsatisfactory reply to the show cause notice.
Screening Committee after assessing the materials on record came to the
conclusion that the services of the respondent were to be terminated with
immediate effect under Rule 30(A).
order of termination was questioned by filing a writ petition before the Delhi
High Court. Validity of amended Rule 30(A) was challenged in addition to taking
the stand that the authorities have found it inconvenient to establish the
earlier charges and, therefore, have by-passed them and taken resort to amended
Rule 30(A) with mala fide intents. Present appellants rebutted the stand and
supported the action impugned in the order.
High Court allowed the writ petition primarily on two grounds; firstly it was
noted that there was no material to show that in the last show-cause notice it
was indicated that the earlier departmental proceedings were dropped and
secondly, in the notice it was not indicated that the same was in terms of the
amended Rule 30(A) of the Rules and was not in continuation of the earlier
charge sheets. Even after service of the last show-cause notice, the respondent
had been served minutes of charge sheets dated 27.9.1989 and 12.12.1989 of the
proceedings held on 30.7.1990. He was also asked to attend enquiry on certain
dates. The High Court, therefore, held that the impugned order cannot be said
to have been passed bona fide. Rule 30(A) of the Rules had no application as
the two departmental proceedings were already pending and those related to
periods prior to coming into effect of Rule 30(A) which cannot be said to have
any retrospective effect. Accordingly, the writ petition was allowed and the
order of termination was set aside. Liberty was however given to the employer for proceedings further with the
departmental proceedings against the respondent.
support of the appeal, learned counsel submitted that the approach of the High
Court is clearly erroneous.
is no requirement in law that when a fresh enquiry is commenced, the earlier
proceedings should be given a go by.
factually also it is not correct as held by the High Court that the show cause
notice was not in terms of Rule 30(A). In any event, the respondent himself
knew that the action had been taken under Rule 30(A). There was no mala fide
involved as erroneously observed by the High Court.
response, learned counsel for the respondent- employee submitted that because
of trade union activities the respondent was made a victim. When two
proceedings were already in progress, there was no necessity to take resort to
Rule 30(A) and that too in a hurried manner without proper opportunity being
granted to the respondent to place his side of the case. Therefore, the High
Court was justified in interfering with the order of termination.
30(A) reads as follows:
Notwithstanding anything contained to the contrary in any other rules, the
services of any employee shall be terminated by the Company if:- (a) his post
is declared on medical ground to be unfit for service in the Company, or (c) he
remains on unauthorized absence for thirty days or more.
a case of (a) & (b) above, the services shall be terminated after giving
three months' notice to a permanent employee and one months' notice to a
temporary employee or pay in lieu thereof in both the cases;
the case of (c) above, services of any employee shall be terminated if he fails
to explain his conduct satisfactorily within 15 days from the date of receipt
of the Show Cause Notice by him. The Management shall be empowered to take a
decision without resorting to further enquiries.
decision in case of (c) above would be taken only with the prior approval of a
Screening Committee of 2 Directors/Executive Director to be constituted for
this purpose by the Chairman & Managing Director.
The reasons for the decision would be recorded in writing.
rules are made effective with effect from 30th March, 1990." At this juncture, it is to
be noted that the validity of a Rule similar to Rule 30(A) was considered by
this Court in Pyare Lal Sharma v. Managing Director and Ors. (1989(3) SCC 448).
In that case after having held that the concerned rule was intra-vires, on the facts
of the case it was held the amended rule could not operate retrospectively and
could operate only from the date of amendment and, therefore, on the facts of
that case it was held that for a period prior to the introduction of the
amended provision, action cannot be taken. In the instant case, the period of
absence to which reference has been made by the appellants clearly related to a
period subsequent to the date of introduction of the amended provision. That
being so, the High Court has rightly not led any stress on that plea though
urged by respondent-employee before the High Court.
brings us to the crucial question as to whether the High Court's view is
sustainable on the facts of the case.
is no requirement in law that for continuing with fresh proceedings the charge
sheet issued must indicate that the previous proceedings pending have been
given a go by.
employer is free to proceed in as many as departmental proceedings as it
considers desirable. Even in a hypothetical case in two of the departmental
proceedings the finding is in favour of the delinquent employee, yet in another
departmental proceeding finding adverse to the delinquent officer can be
recorded. Merely because the two proceedings were pending, that did not in any
way stand on the way of the employer to initiate another departmental
proceeding and that too on the basis of an amended provision which came into
effect after initiation of the previous departmental proceeding. The High
Court's view therefore is clearly unsustainable. The High Court had also
observed that in the show cause notice there was no reference to Rule 30(A).
This is not factually correct. As the records reveal clear reference was made
to IDPL Corporate Office letter No.IDP/7/32/Estt/90 dated 24.9.1990. This
related to the amendment of Rule 30(A). Additionally, the respondent- employee
was not taken to surprise and no prejudice was caused to him by not mentioning
of Rule 30(A) specifically.
other hand, from his reply dated 22.6.1990 it is clearly revealed that he knew
that the proceeding was in terms of the amended Rule 30(A). His specific stand
as is revealed from reply to the show-cause notice is that the company having
become realized that it will not be in a position to establish the allegations
forming foundation of the two departmental proceedings, has resorted to Rule
30(A). That being so, the High Court was not justified in drawing an adverse
inference by concluding that non mention of Rule 30(A) specifically in the show
cause notice vitiate the proceedings. There is no dispute that factors
necessary to bring in application of Rule 30(A) existed. The High Court was
also not justified in coming to the conclusion that the action of the
authorities in initiating the proceedings in terms of Rule 30(A) is not bona
at from any angle, the High Court's order is indefensible and is set aside. The
appeal succeeds but without any order as to costs.