Mafatlal Naraindas Barot Vs.
Divisional Controller, State Transport Corporation  INSC 294 (13 December
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 1364 1966 SCR (3) 40
R 1971 SC1828 (11) RF 1973 SC 855 (24,26) RF
1975 SC1331 (26,27,31,171,188,189) R 1976 SC 888 (31) R 1980 SC 840 (11) RF
1989 SC 341 (11)
Dismissal-employee absent without leave and
failing to report for duty when directed-Dismissed on payment of two months'
salary in lieu of notice-Regulations governing service condition providing for
opportunity to show cause against proposed punishment not complied
with--Property of dismissal.
The appellant, who was a permanent employee
of the respondent State Transport Corporation, proceeded on 15 days' leave on January 15, 1962 and thereafter applied for an extension of his leave on medical grounds.
This extension was refused and although the appellant was directed to report
for duty immediately, he continued to be absent and wrote to the respondent on
March 3, 1963, intimating him of his inability to join duty as he was still not
well. By an order of the respondent dated March 9, 1962, the appellant's services
were terminated with effect from January 16, 1962 on the ground of long
After his representations and an appeal to
higher authorities in the ;Corporation had been rejected, the appellant filed a
petition for a writ of Certiorari to quash the dismissal order, but this
petition was dismissed in limine.
It was contended on behalf of the appellant
that in accordance with Clauses 4(b), 38 and 40 of Schedule A to the
Regulations governing his service conditions, a charge should have been framed
against him and that be was entitled to an opportunity to show cause against
the proposed 'punishment. On the other hand it was the respondents' contention
that though the order of dismissal referred to long absence as the cause of
termination, the termination itself was not by way of punishment and the only
right of the appellant under Regulation 61 was to two months' notice in lieu of
pay; and that an examination of the correspondence and the circumstances of the
case showed that the appellant had been given to opportunity to show cause and
that there was in fact and in substance compliance with the rules of natural
HELD : The order of termination passed
against the appellant must be quashed as it was bad in law since it contravened
the provisions of cl. 4(b) of the Regulations and also the principles of
natural justice. [44 B] Clauses 38 and 40 provided that absence without leave
and without reasonable cause, and failure, without sufficient cause.. to report
for duty when directed amount to acts of misconduct. Under clause 4(b) it was
therefore obligatory on the part of the respondent to give the appellant a
reasonable opportunity to show cause, by providing him with a copy of the
charge or charges as well as the statement of the allegations that had been
made against him. [43 F] 41
CIVIL APPELLATE JURISDICTION: Civil APPEAL
No. 757 of 1964.
Appeal by Special Leave from the Judgment and
Order, dated the 28th May, 1963 of the Gujarat High Court in Special Civil
Application No. 419 of 1963.
R. Gopalakrishnan, for the appellant.
N. S. Bindra and B. R. G. K. A char, for the
The Judgment of the Court was delivered by
Satyanarayana Raju, J. This appeal, by special leave, is against the judgment
and order of the High Court of Gujarat at Ahmedabad, dated May 28, 1963,
dismissing in limine an application filed by the appellant under Art. 226 of
The facts material for the purposes of this
appeal may be briefly stated. 'Me appellant was a permanent employee of the
State Transport Corporation, Gujarat, hereinafter referred to as the
Corporation. At the material time he was employed as a Writer in the Visnagar
Depot of the Corporation in Mahasana District. On January 15, 1962, the
appellant applied to the Divisional Controller, State Transport, Mahasana, for
leave for 15 days on the ground that he had to attend to his 'personal work. On
January 16, 1962, he was transferred from Visnagar to Ambaji where there was a
vacancy in the office of the Depot Manager. On January 31, 1962, a formal order
transferring the appellant from Visnagar to Ambaji was passed, and he was
directed to join duty at Ambaji.
On that date, the appellant applied for
extension of leave on medical grounds but his request was refused by an order,
dated February 15, 1962. He was directed to report for duty at Ambaji within 48
hours of the receipt of notice failing which, he was warned, he would be
removed from service. On March 3, 1962, the appellant wrote a letter to the
Divisional Controller intimating him of his inability to join duty as he was
still not well. To this letter, he enclosed a medical certificate.
By an order, dated March 9, 1962, the
services of the appellant were terminated with effect from January 16, 1962, on
the ground of long absence. The appellant made a representation to the
Divisional Controller on March 17, 1962 and thereafter preferred an appeal to
the General Manager of the Corporation. Both of them were rejected. A further
appeal preferred by him to the L9SUPCI/66--4 4 2 appellate Committee was also
unsuccessful. The Committee held that the leave applications of the appellant
were made only with a view to evade joining duty at Ambaji.
The appellant applied to the High Court of
Gujarat under Arts. 226 and 227 of the Constitution, impleading the Divisional
Controller as respondent, for the issue of a writ of certriorari to quash the
order of dismissal. His petition was dismissed in limine on May 28, 1963. On
June 17, 1963, the appellant applied for a certificate to appeal to this Court
but it was refused. Thereafter he applied for special leave and that was
granted by this Court.
It may be stated at the outset that the
respondent is an autonomous statutory Corporation formed under the provisions
of the Road Transport Corporations Act, 1950. It is not disputed that the
appellant could not invoke the provisions of Art. 311 of the Constitution.
The short question for determination in the
appeal is whether the appellant was entitled to an opportunity to show cause
against the proposed punishment as required by regulation No. 61 of the
Regulations which govern the service conditions of the employees of the
Corporation. It is admitted that no charge was framed against him nor was he
given an opportunity to show cause.
It is contended for the respondent that
though the order of termination referred to long absence as the cause of
termination, the termination itself was not by way of punishment and the only
right of the appellant was to two months' pay in lieu of notice under
regulation No. 61, that assuming that the termination was by way of punishment,
the appellant, as would be evident from the correspondence and the
circumstances of the case, had been given an opportunity to show cause and that
there was in fact and in substance compliance with the rules of natural
We may, at this stage, read the relevant
regulations which admittedly govern the service conditions of the employees of
the G Corporation. Regulation No. 61 provides as follows :
"The service of an employee, who does
not hold a permanent appointment in State Transport or a lien on a permanent
appointment in any Government Department from which he is transferred, are
liable to be terminated by the Competent Authority by giving a calendar month's
notice or a calendar month's pay in lieu :
43 Provided that the services of casual
workers and part time workers may be terminated without any notice;
Provided further that a permanent employee of
State Transport shall be entitled to 60 days' notice or 60 days' pay in
lieu." Clauses 3 8, 40 and 4 (b) of Schedule A to the Regulations provide:
"38. Irregular attendance, absence
without leave and without reasonable cause and absence without
permission." 40.Failure, without sufficient cause, to report, when
directed, for duty, on the part of an employee to whom the leave he has applied
for is refused." "4(b). A person against whom action is proposed to
be taken for any act of misconduct, shall be provided with a copy of the charge
or charges as well as a statement of allegations that have been made against
him, and over which enquiry is being held." Clause 3 defines two classes
of offences named acts of misconduct and minor lapses and delinquencies,
respectively and sub cl. (ii) of cl. 3 states inter alia that the misconducts
are those specified in Schedule A. Regulations 38 and 40 provide that irregular
attendance, absence without leave and without reasonable cause and failure,
without sufficient cause, to report, when directed, for duty amount to acts of
misconduct. Clause 4(b) is specific and clear. Under that clause, it is
obligatory on the part of the respondent, to give the appellant a reasonable
opportunity to show cause, by providing him with a copy of the charge or
charges, as well as the statement of the allegations that have been made
Admittedly, the respondent did not frame a
charge against the appellant nor conduct any enquiry.
It is true that the respondent may visit the
punishment of discharge or removal from service on a person who has absented
himself without leave and without reasonable cause, but this cannot entail
automatic removal from service without giving such person reasonable
opportunity to show cause why he be not removed. The appellant is entitled to a
reasonable opportunity to show cause which includes an opportunity to deny his
guilt and establish his innocence which he can do, only when he knows what the
charges levelled against him are and the allegations on 44 which such charges
are based. In our judgment the appellant was entitled to an opportunity to show
cause against the action proposed to be taken against him.
The order of termination passed against the
appellant is bad in law since it contravenes the provisions of cl. 4(b) of the
Regulation and also the principles of natural justice.
In all the circumstances of the case, we are
satisfied that the impugned order must be quashed. A writ of certiorari will
accordingly issue quashing the order of dismissal, but this will not preclude
the respondent from making a fresh enquiry against the appellant after giving
him reasonable opportunity to show cause as provided under cl. 4(b) of the
The appeal is accordingly allowed, but there
will be no order as to costs.