Hindustan Paper Corpn. Vs. Purnendu Chakrobarty
& Ors [1996] INSC 1360 (30 October 1996)
B.P.
Jeevan Reddy, K. Venkataswami Venkataswami. J.
ACT:
HEAD NOTE:
Leave
granted.
Heard
learned counsel for the parties at length.
The
appellant-Corporation on January
5, 1989 passed an
order invoking Rule 23(vi) E of the Hindustan Paper Corporation Conduct
Discipline and Appeal Rules (hereinafter called "the Rules"). That
order was to the effect that the first respondent herein must be deemed to have
lost his Lien on his appointment with the Corporation/Mill.
The
first respondent has successfully challenged the said order of the appellant
before the High Court of Guwahati and thus. the appellant is before us.
The
first respondent entered the services of the appellant as a Fire Fighting
Officer and was eventually promoted on 28.8.1985 as Assistant Manager (Security
& Fire- fighting). On may 26. 1988 the body of one shanti Rani Chakrabarty,
sister-in-law of the first respondent. was found in the house of the first
respondent. On 27.5.1988. the first respondent applied casual leave. On the
next day.
An FIR
was lodged aginst the first respondent and others under Section 302/201 read
with Section 34 IPC by Karim Ganj Police. On 3.6.1988. the first respondent
after the expiry of casual leave sent an application for Earned Leave for 11
days giving the reason 'personal affair' and mentioning his leave address as
U/S PWD Dispur, Gauhati. On 6.6.1988 the Senior Manager of the appellant
received a message from the Police to direct the first respondent to report to
the police station. On 7.6.1988 the Senior Manager informed the police that the
first respondent has sent an application for Earned Leave. Again the police
requested to intimate the whereabouts of the first respondent. On l4,6.1988 the
appellant informed the police that the whereabouts of the first respondent not
known. However. the permanent address of the first respondent as available in
the official record. was supplied to the police. Thereafter. the appellant sent
series of leave applications dated 21.6.88. 14.7.88. l3.9.88. 28.8.88. 13.9.88.
29.9.88. 16.10.88 and 5.11.88 without minding to find out whether previous
applications for leave have been sanctioned or not. These leave applications
initially did not disclose any reason and subsequently it mentioned `on medical
grounds' without enclosing any medical certificate and without disclosing his
leave address. The appellant-Corportion again received on 28.11.1988 a
communication from the police that the first respondent was wanted as an
accused in a murder case. ln view of that the Appellant-Corporation by a
communication dated 30.1l.1988 informed the first respondent that his leave on
medical grounds was not sanctioned as his applications were not supported by
medical certificates and that he was liable to be treated as an unauthorised
absentee. He was. therefore. called upon to submit his explanation, if any
within 15 days of receipt of the letter.
He was
also incidentally informed that he was required by the Superintendent of
Police, Karim Ganj in connection with the murder. In response to the above
communication from the appellant-Corporation. the first respondent submitted
his reply baldly stating that he was suffering from chest pain for quite some
time and that he had consulted specialist outside HPC for personal reasons and
due medical cercificate Will be produced at the time of joining. He also
informed the Corporation that he knew that he was required to appear before the
Police and that he would report to the police as per rules. It is under these
circumstances that the appellant-Corporation passed the order dated 5.1.l989
invoking Rule 23 (vi) E the Rules.
The
appellant aggrieved by the said order moved the Guwahati High Court by filing
Civil Rule No. 288 of 1992 under Article 226 of the Constitution of India. The
learned Single Judge as well as the Division Bench. on appeal by the
appellant-Corporation, agreeing with the arguments advanced on behalf of the
first respondent set aside the order of the appellant-Corporation dated
5.1.1989 and directed re- instatement of first respondent with 50% back wages.
When
the Special Leave Petition came up for admission this Court while issuing
notice passed an order in the following terms:
"In
the light of the sub-clause (E) of Clasue VI of Rule 23. the validity of which
is stated not to have so far been pronounced upon by this Court in the context
of a Public Sector Corporation. a notice shall be issued to the
respondents." Before actually going into the validity of the said Rule it
would he beneficial to appreciate the facts little more critically, which will
be helpful to come to the correct conclusion.
The
first respondent is not a workman to avail or invoke the provisions of the
Industrial Disputes Act 1947.
He is
governed by the Rules framed by the Corporation in this regard. We have already
noted that in view of the pendency of criminal case registered against him, the
first respondent without disclosing that fact has been sending applications for
leave commencing from 21.6.1988 ending with 5.11.1988. Copies of the
application for leave are tiled in the paper book along With copies of medical
certificates produced by the first respondent. not before the appellant-
corporation on time. but long subsequently. Initially, as noticed earlier. the
applications for leave did not disclose any reason. Later on, in the
application for leave dated 13.8.1988, the reason given was suffering from
heart disease'. Again in the application dated 13.9.1988. the reason given was
heart disease since long. The same reason was given in the applications dated
29.9.1988 16.10.1988 and 5.11.1988 It is very relevant to note that according
to the medical certificates, copies of which are now produced which are dated
4.5.1988 onwards ending with 21.01.89.
nowhere
it was stated that he was suffering from heart disease. Further. nature of the
sickness was mentioned in the certificate and in spite of that the same was not
disclosed correctly in the leave applications. It is also clear that those
certificates were available and inspite of that not enclosed alongwith the
leave applications. From this one has to draw the inference that either the
medical certificates are not genuine in the sense that they were not obtained
then and there or the first respondent deliberately did not enclose them along
with the leave applications. Even today no proper explanation is forthcoming
from the first respondent on this aspect. With this background we shall now set
out the relevant rule:- Rule 23, PENALTIES The following penalties may be
imposed on an employee. as hereinafter provided. for misconduct committed by
him or for any other good and sufficient reasons.
Minor
Penalties
a) censure:
b) withholding
of increment(s) of pay with or without cumulative effect:
c) withholding
of promotion;
d) recovery
from pay or such other amount as may be due to him of the whole or part of any
pecuniary loss caused to the Corporation by negligence or breach of orders.
Major
Penalties
e) reduction
to a lower grade or post. or to a lower stage in a time scale:
f) removal
from service which shall not be a disqualification for future employment ;
g) dismissal;
Explanation: The following shall not amount to a
penalty within the meaning of this rule.
i) withholding
of increment of an employee on account of his work being found unsatisfactory
or not being of the required standard. or for failure to pass a prescribed test
of examination:
ii) stoppage
of an employee at the efficiency bar in a time scale, on the ground of his
unfitness to cross the bar:
iii)
non-promotion, whether in an officiating capacity or otherwise , of an employee
to a higher post for which he may be eligible for higher post for which he may
be eligible for consideration but for which he is found unsuitable after
consideration of his case;
iv)
reversion to lower grade or post, of an employee officiating in a higher grade
or post, on the ground that he is considered, after trial, to be unsuitable for
such higher grade or post, or on administrative grounds unconnected with his conduct;
v) reversion
to his previous grade or post, of an employee appointed on probation to another
grade, or post during of at the end of the period of probation, in accordance
with the terms of his appointment;
vi) TERMINATION
OF SERVICE
A) of
an employee appointed on probation. during or at the end of the period of
probation. in accordance with the terms of his appointment:
B) of
an employee appointed in a temporary capacity otherwise than under a contract
or agreement. on the expiration of the period for which he was appointed. Or
earlier in accordance with the terms of his appointment:
C) of
an employee appointed under a contract or agreement. in accordance with the
terms of such contract or agreement:
D) of
any employee on reduction of establishment; and
E)
Loss of lien on his appointment by an employee:
1.
Proceeding on leave without prior sanction and remaining un authorisedly absent
for more than 8 consecutive days. and/or
2.
Over-staying his sanctioned leave beyond the period originally granted or
subsequently extended formore than 8 consecutive days."
In the
light of the above Rule, in particular Rule 23 (vi) E, the
appellant-Corporation factually by communication dated 30.11.1988 informed the
first respondent that the leave applications have not been supported by medical
certificates; that period must be treated as unauthorised absent' and if he has
got anything to say on that aspect he has to send the reply within 15 days from
the date of receipt of that letter. His reply was that he was suffering from
chest pain for quite some time and the medical certificates will be produced at
the time of joining. To say the least, that should not be the attitude of an
employee.
First
of all. he was expected to take the leave ordinarily with prior sanction and
extend the same after the earlier one was sanctioned by the appropriate
authority. Right from the beginning his applications were not only not in
proper form but were not supported by any medical certificates to justify the
claim of the first respondent. At least the first respondent should have
replied properly by enclosing the medical certificates or should have come
forward with a true case. He did neither. lt is in that context that the
appellant-corporation invoked the said Rule. namely. Rule 23(vi) E.
Mr. P P
Rao. senior counsel appearing for the appellant-Corporation fairly in our view
rightly conceded that the Rule. namely. Rule 23(vi) E has to be construed by
reading into it the Principles of natural justice. Otherwise by reading it
literally, it would amount to arbitrary and unreasonable vesting of authority
and liable to be struck down. According to the learned counsel. if only the
first respondent had properly responded to the show cause notice the
Corporation might not have taken the extreme step of cutting off the
appointment of the first respondent with the Corporation.
We
consider that in view of this concession made by the learned counsel on behalf
of the appellant Corporation that the said Rule must be read and given effect
to. subject to the compliance of the principles of natural Justice. It cannot
be said that the rule is arbitrary or unreasonable or ultra vires Article 14 of
the Constitution. In other words, before taking action under the said clause an
opportunity should be given to the employee to show cause against the action
proposed and if the cause shown by the employee is good and acceptable, it
follows that no action in terms of the said clause will be taken. Understood in
this sense. it can not be said that the said clause is either unreasonable or voidable
of Article 16 of the constitution.
Mr.
Sanjay Parikh. Learned counsel appearing for the first respondent however.
vehemently contended that in view of the recent judgment of this Court in D.K. Yadav
vs. JMA ndustries Ltd (1993) 3 SCC 259 which has considered number of earlier
judgments of this Court including Hindustan Steel Ltd. vs. Presiding Officer, Labour
Court (1976) 4 SCC 222: L. Robert D` Souza vs. Executive Engineer. Southern
Railway (1982) 1 SCC 645: Delhi
Transport Corpn. V. D.T.C. Mazdoor Congress 1991 supp (1) SCC 600, the judgment
and order of the High Court cannot be assailed.. According to the Learned
counsel. before passing the impugned order against the first respondent, the
appellant-Corporation should have conducted a full fledged order. He also
invited our attention to the reasonings given by the Division Bench of the High
Court.
The Devision
Bench of the High Court by confirming the order of the learned single Judge
appears to have fell into an error in correct appreciating the scope of Rule
23.
According
to the learned Judges of the Division Bench. the loss of lien is a major
penalty and therefore. attracts Rule 25 which provides that no major penalty
can be imposed without holding an inquiry under the Rules. This view of the
Division Bench led them to pass the following observation.
"Admittedly.
no inquiry has been held and the alternative submission of substantial
compliance of the Rules as already discussed above, has been held to be
illusory. It cannot therefore be said in absence of any inquiry whatsoever that
the deliquent writ petitioner deliberately abstained from duty on a feigned or
pretended ground of illness. It was a matter of inquiry..
We
have extracted Rule 23 in full. The explanation to the Rule specifically states
that certain items enumerated thereunder shall not be treated as a penalty at
all within the meaning of Rule 23. For our case the relevant sub clause is (vi)
E which says that proceeding on leave without Prior sanction and remaining unauthorisedly
absent for more than 8 consecutive days; and/or over-staying his sanctioned
leave beyond the period originally granted or subsequently extended for more
than 8 consecutive days would result in loss of lien of the appointment of the
employee. In this case we have seen that the first respondent had proceeded on
leave without prior sanction and remained unauthorisedly absent for more than 6
months consecutively which obliged the appellant-Corporation to issue
communication to the first respondent calling upon him to explain. Unfortunately.
the first respondent. for reasons best known to him. has not availed himself of
the opportunity as seen earlier but replied in a half-hearted way which
resulted in the impugned order. Therefore. under the circumstances it cannot be
said that the principles of natural justice have not been complied with or the
circumstances require any enquiry as contemplated under Rule 25. In the case
cited by the learned counsel for the first respondent. this Court has held
"that the law must. therefore, be now taken to be well-settled that
procedure prescribed tor depriving a person of livelihood must meet the
challenge of Article 14 and such law would be liable to be tested on the anvil
of Article 14 and the procedure prescribed by a statute on statutory rule or
rules or orders affecting the civil rights or result in civil consequences
would have to answer the requirement of Article 14. So it must be right, just
and fair and not arbitrary, fianciful or oppressive. There can be no
distinction between a quasi-judicial function and an administrative function
for the purpose of principles of nature justice. The aim of both administrative
inquiry as well as the quasi-judicial inquiry is to arrive at a just decision
and if a rule of natural justice is calculated to secure justice to put it
negatively, to prevent miscarriage of justice. it is difficult to see why it
should be applicable only to quasi-judicial inquiry and not to administrative
inquiry. It must logically apply to both." On a consideration of the
entire facts, we are of the view that the test laid down by this Court, as
extracted above has been satisfied by the appellant-Corporation and therefore
when viewed from the point of Rule 23(vi) E, there was no good reason for the High
Court to interfere with the impugned order of the appellant-Corporation dated
5.1.1989.
While
ordering notice, this court has directed the appellant to pay 1/5th of the
arrears to the first respondent within 3 months. lt is stated that order has
been complied with. It is also brought to our notice that the first respondent
is due to rctire shortly within few months. Taking the totality of the facts
and circumstances of the case and having due regard to the services rendered by
the first respondent. the ends of justice would be met if the
appellant-Corporation is directed to give all pensionary and terminal, benefits
to the first respondent treating the case to the first respondent as compulsory
retirement on and from 5.1.1989. We direct accordingly . the amount already
paid pursuant to the interim direction of this Court is not liable to be
refunded by the first respondent and not to be adjusted against the terminal
benefits payments. if any.
The
appeal is accordingly disposed of. However. there will be no order as to costs.
Back
Pages: 1 2
