SAT PAL v. H. P. UNIVERSITY — 1993 DIGILAW 58 (HP)

JUDGMENT Devinder Gupta, J.—The petitioner in this writ petition has sought the quashing of order Annexure P-5 dated 29th July, 1986 passed by the second respondent dispensing with the services pf the petitioner. 2. It is the petitioners case that he was engaged as a daily waged electric helper in the Construction Division of respondent No. 1-University on 4th May, 1976. After putting in about 2-1/2 years service, he was brought on work charged establishment through an order Annexure P-l passed on 4th December, 1978 by respondent No. 2. Till passing of the impugned order, he had completed about eight years of service on the work charged establishment of respondent No. 1-University, during which period his work and conduct had been satisfactory, but due to his trade union activities, the respondents have victimised him. It is alleged by him that he was active worker of the Himachal Pradesh University Class IV and Technical Workers Union affiliated to Northern India Colleges and Universities Employees Federation. On 31st October, 1985, he was elected as its Assistant Finance Secretary and since then had been in the forefront of all the activities of the Union. 3. In or about second week of July, 1986, certain appointments/ promotions were made on a regular establishment out of the workers on work-charged establishment for which workers of electricity wing were not considered. As a result of this, there was unrest amongst the workers of the Construction Division. On 21st July, 1986, the petitioner alongwith other office bearers and workers of the Union met respondent No. 2 and on his suggestion approached the Registrar in his office. Instead of patiently listening to their grievances, the Registrar rebuked them and refused to have a talk. The workers of the Construction Division became agitated, raised slogans and sat on Dharna outside the office of the Registrar. The office bearers thereafter met the Vice-Chancellor and on his assurance, Dharna was removed. It is further alleged that on 23rd July, 1986, memorandum Annexure P-3 was served upon him and he was asked to explain his position within three days, failing which disciplinary action was threatened for misconduct. The explanation sought for was that on 21st July, 1986, the petitioner bad neglected official duties as Beldar by remaining absent and instead he led an unruly gathering of labour in the University, which created an objectionable situation. The explanation sought for was that on 21st July, 1986, the petitioner bad neglected official duties as Beldar by remaining absent and instead he led an unruly gathering of labour in the University, which created an objectionable situation. To this, the petitioner sent his reply Annexure P-4 on 25th July, 1986 controverting the charge of misconduct and indiscipline. The Registrar of the University thereafter, as is alleged, got the petitioners services terminated, for which respondent No. 2 on 29th July, 1986 issued an order Annexure P-5. It is this order, which is under challenge. 4. The grounds to challenge the order are that after having put in 10 years of service in the University, his services have been terminated by an innocuous order, which on the face of it castes a stigma. Before passing such an order, it was necessary for the respondents to have held a proper enquiry by affording to him a reasonable opportunity of being heard. The order of termination is malafide and is the result of revenge full and vindictive attitude of the Registrar of the University, who was annoyed with the petitioner after the incident of 21st July, 1986. In the absence of any enquiry, show cause notice and a reasonable opportunity of being heard, the order is violative of the principles of natural justice. It is contended by the petitioner that he has accepted the cheque of Rs. 1,767.70 paise towards his pay and allowances for the period from 1st July, 1986 to 29th July, 1986 and in lieu of one months notice subject to his rights and contentions to challenge the order. 5. The writ petition has been contested by the respondents. Reply has been filed on the affidavit dated 28th August, 1986 of Mr A. R. Chauhan, Registrar of the Himachal Pradesh University. It is pleaded by the respondents that there was no such Union, formally recognised by the University, as is contended by the petitioner However, the University authorities have been listening to the so called union of the petitioner as also the other employees concerning their welfare. No such grievance, according to the respondents, relating to the appointments and promotions on the regular establishment was ever made either through a notice or through any communication, prior to 21st July, 1986. Such a defence was created or set up subsequent to the incident, which happened in the office of the Registrar. No such grievance, according to the respondents, relating to the appointments and promotions on the regular establishment was ever made either through a notice or through any communication, prior to 21st July, 1986. Such a defence was created or set up subsequent to the incident, which happened in the office of the Registrar. The petitioner instead of representing and expressing his grievances through legal and democratic means resorted to mussle power w. e. f. 21st July, 1986 by instigating other law abiding employees of the University on the pain of assaults and led them to the office of the Executive Engineer. Not only the Executive Engineer was gheraod, but he was humiliated, abused, insulted and intimidated. The petitioner alongwith his associates shouted obscene slogans not only against the Executive Engineer, but also against the Registrar of the University in person as well as other University functionaries. The Executive Engineer alongwith the other staff came to the office of the Registrar to explain the matter. In the meanwhile, most of the agitators, headed by the petitioner, entered the office of the Registrar forcibly and gheraod not only the Registrar, but also the Deputy Registrar, Public Relation Officer, Executive Engineer, Construction Division, Section Officer of the Construction Division and of the Registrars Office etc. The petitioner and his associates misbehaved, used obscene language and threatened that they would stop the functioning of the whole University. When the situation became unruly and out of control, the matter had to be reported to the police through complaint Annexure R-l. 6. It is alleged that at the intervention of the police, situation was brought under control. The agitators were forced to go out of the premises, where they continued shouting slogans and using obscene language The petitioner made provocative speeches, instigating all University employees to bring the functioning of the University to a standstill. It is alleged that at the intervention of the police, situation was brought under control. The agitators were forced to go out of the premises, where they continued shouting slogans and using obscene language The petitioner made provocative speeches, instigating all University employees to bring the functioning of the University to a standstill. As a result of this, important functions in the University like declaration of results, preparations for the pre-medical test, preparation for M B A. entrance test had to be postponed Other employees had to be pacified and precautions had to be taken to see that no unto ward incident should take place till 22nd July, 1986, which happened to be an Anniversary Day of the University, which was also disrupted besides the functions which were held in the University Auditorium, when the agitators did not allow the functionaries to take part in the function. 7. When all efforts failed, to pacify the petitioner and others, there was no option left with the Registrar but to issue a memorandum to the petitioner dated 23rd July, 1986 with the sole object in mind that this attempt might help in bringing about normalcy, but it also yielded no results. The acts of insubordination on the part of the petitioner and his associates continued vigorously, which act and conduct was not within the legitimate field of trade union activities. After the memorandum dated 23rd July, 1986 had been served, it was the petitioner who brought the working of the entire Construction Division almost to a standstill. Various complaints and reports about the tampering with essential services like water supply and electricity were received. All out efforts had to be made to keep the essential services in order, but the situation started taking abnormal turn day after day. The Executive Engineer, who as the disciplinary authority of the petitioner thereafter thought that the only method to bring about normalcy and discipline was to terminate the services of the petitioner forthwith, who was the main person behind the problem. It was the Executive Engineer, who satisfied himself that it was not possible to resort to detailed disciplinary enquiry against the petitioner, the exigency of this grave situation compelled that the detailed enquiry be dispensed with in the interest of the University and discipline. It was the Executive Engineer, who satisfied himself that it was not possible to resort to detailed disciplinary enquiry against the petitioner, the exigency of this grave situation compelled that the detailed enquiry be dispensed with in the interest of the University and discipline. Consequently, the order passed on 29th July, 1986 is claimed and sought to be justified by saying that a rational decision was taken by the Execu tive Engineer that it was not considered fit to resort to a detailed enquiry as the same would not have been conducive to the situation prevailing in the University. The services as such were rightly dispensed with within the frame work of the contract, under which the petitioner had been engaged by respondent No. 2, which is perfectly legal and valid 8. The writ petition was admitted on 22nd April, 1987. We have heard the learned Counsel for the parties and also have gone through the entire record, which was made available for our perusal by Mr. Jishtu, learned Counsel for the respondents. 9. When the case came up for arguments before us on 14th December, 1992, we noticed that against the impugned order passed on 29th July, 1986, the petitioner had preferred a representation to the Vice-Chancellor on 4th August, 1986. Mr Jishtu was not in a position to state as to whether the representation had actually been considered or any decision arrived at thereupon Consequently, we directed that let an appropriate decision be taken by the respondents on the petitioners representation, if not already taken, within a period of four weeks, and in case it is deemed proper, the petitioner may also be heard by respondent No. 1. We have been informed by Mr. Jishtu that the Vice-Chancellor has now considered the representation of the petitioner and rejected the same. 10. Learned Counsel for the petitioner has contended that the order is bad in law since it is not a simpliciter order of termination, but it castes a stigma. No enquiry was held and no opportunity afforded to the petitioner. The order, as such, is bad in law. On the other hand, the learned Counsel for the respondents has, as noticed above, urged that an appropriate authority rightly took a decision to dispense with the holding of fulfledged enquiry in the facts and circumstances. 11. Most of the facts are not in dispute. The order, as such, is bad in law. On the other hand, the learned Counsel for the respondents has, as noticed above, urged that an appropriate authority rightly took a decision to dispense with the holding of fulfledged enquiry in the facts and circumstances. 11. Most of the facts are not in dispute. It is not disputed that some incident did take place on 21st July, 1986, as a result of which on 23rd July, 1986, memorandum Annexure P-3 was served upon the petitioner pointing out that he had been negligent in the performance of his duties and had led unruly gathering of labour in the University, which created an objectionable situation, as a result of which official business of the University was obstructed. The petitioner was called upon to explain his position within three days, failing which disciplinary proceedings were threatened against him under the disciplinary rules. Annexure P-4 is the reply, which the petitioner submitted to this memorandum. On 29th July, 19fc6, impugned order Annexure P-5 was passed dispensing with the petitioners services with immediate effect under Clause (8) of the appointment order. 12. Admittedly, no disciplinary enquiry was held and in addition to Annexure P-3, no other notice was served upon the petitioner. Three additional grounds are mentioned in Annexure P-5, as acts amounting to misconduct in addition to the grounds which were stated in the memorandum Annexure P-3. The service of the petitioner was dispensed with on the grounds of misconduct for which it was necessary to hold a proper enquiry under the relevant disciplinary Rules, but it will be noticed that while passing the impugned order, regular enquiry was dispensed with; 13. The legal position is not now capable of any dispute that no civil servant can be dismissed, removed or reduced in rank until after an enquiry in which he has been informed of the charges against him and after he has been given a reasonable opportunity of being heard in respect of those charges. Article 311 (2) of the Constitution gives a constitutional mandate to the principles of natural justice. Article 311 (2) of the Constitution gives a constitutional mandate to the principles of natural justice. It has also been held in the case of Union of India v. Tutsi Ram Patel, AIR 1985 SC 1416 that the second proviso to Article 311 (2) carves out an exception to the above principle where the authority empowered to dismiss or remove the civil servant or reduce him in rank is satisfied that for some reasons to be recorded by it in writing, it is not reasonably practicable to hold such an enquiry. The a pex Court has explained the purport of this exception by saying J "Very often a situation which makes it not reasonably practicable to hold an enquiry is of the creation of the concerned government servant himself or of himself acting in concert with others or of his associates. It can even be that he himself is not a party to bringing about that situation. In all such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned government servant. It should also be borne in mind that in the case of a serious situation which renders the holding of an inquiry not reasonably practicable, it would be difficult to foresee how long the situation will last and when normalcy would return or be restored. It is impossible to draw the line as to the period of time for which the suspension should continue and on the expiry of that period action should be taken under clause (b) of the second proviso. Further, the exigencies of a situation may require that prompt action should be taken and suspending the government servant cannot serve the purpose. Sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrollable. Not taking prompt action may also be construed by the trouble-makers and agitators as a sign of weakness on the part of the authorities and thus encourage them to step up the tempo of their activities or agitation It is true that when prompt action is taken in order to prevent this happening, there is an element of deterrence in it but that is an unavoidable and necessary concomitance of such an enquiry resulting from a situation which is not of the creation of the authorities. After all, clause (b) is not meant to be applied in ordinary, normal situations but in such situations where it is not reasonably practicable to hold an inquiry." 14. Whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. The Court in Tulsi Ram Patel’s case (supra) further held that it is not total or absolute impracticability, which is required by clause (b). What is requisite is that the holding of the enquiry is not practicable, in the opinion of a reasonable man taking a reasonable view of the prevailing situation. The reasonable practicability of holding enquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is for this reason that Clause (3) of Article 311 makes the decision of disciplinary authority on this question final. The judgment in Tulsi Ram Patel’s case (supra) was followed in Satyavir Singh and others v. The Union of India and others, 1986 (1) Services Law Reporter 255, and in Jaswant Singh v. State of Punjab and others, AIR 1991 SC 385. 15. It is also the settled proposition of law that the decision to dispense with the departmental enquiry cannot be rested solely on the ipsedixit of the concerned authorities. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. 16. In the light of the aforementioned principles, on perusal of the record in this case, we find that after the incident of 21st July, 1986 and after memorandum Annexure P-3 had been duly served upon the petitioner, the situation in the University campus further deteriorated. Complaints were received by the University authorities from the Construction Wing. The Assistant Engineer (Electrical) was informed by the staff that the electricity supply had been disrupted from the main control room located in the Science Block. Another report was made to the Executive Engineer (Construction) in the morning hours of 24th July, 1986 about the electrical sabotage noticed near the main control room of Guest House. There was tampering with the electrical system. Another report was made to the Executive Engineer (Construction) in the morning hours of 24th July, 1986 about the electrical sabotage noticed near the main control room of Guest House. There was tampering with the electrical system. It was found to be the work of some mischievious element. On 28th July, 1986, another report was received on the strength of the information of the security staff that some short circuit has intentionally been made to disrupt the lighting system. The record further reveals that on receipt of the complaints, which were received earlier, an action was intended to be taken against the petitioner for which he was asked through Annexure P-3 to explain his position. On 24th July, 1986, disruption of electrical supply to the pump house feeding the main water supply of Guest House was observed. On 28th July, 1986, disruption of street lights towards the Cheriton Estate was noticed It was reported that the petitioner and another skilled helper were not found in the complaint room. On the same day, on perusing the reports, the Executive Engineer decided to himself visit the sites to assess the entire situation. A detailed note dated 29th July, 1986 has been recorded by the Executive Engineer referring to various material on record. It was noticed by him that the acts of disrupting electrical installations and electric supply to the Pump House feeding the main Guest House were at the behest of the petitioner being a ring leader, who had already given an alarm in that behalf. It is further observed that if timely action had not been taken to rectify the disruption, these might have proved fatal or in any case caused a serious fire to the buildings especially Guest House. After recording these observations, the Executive Engineer found that all these acts amounted to indiscipline and misconduct on the part of the petitioner, which were detailed in his note and he recorded his satisfaction, looking to the deteriorating situation that the enquiry is not practicable at all against the petitioner as the same was likely to unnecessary delay and further aggravating the situation and in the interest of discipline as also in the interest of University and to maintain the normal functions9 petitioners services stand terminated forthwith as the same were not required by the University. 17. 17. We may also notice that these acts on the part of the petitioner about disruption in electrical system in the University and that it was he, who was responsible were specifically stated by the respondents in the reply-affidavit filed on 29th August, 1986. The writ petition was admitted thereafter on 22nd April, 1987. The petitioner had thereafter ample opportunity and time to supplement his pleadings, but on effort was made by him to controvert the positive assertions made by the respondents in the reply that the situation was such, which prompted the Executive Engineer to take a decision to dispense with the requirement of giving opportunity to the petitioner of being heard before terminating his services Application for early hearing was made by the petitioner on 2nd September, 1991. At that stage also, the petitioner could have filed affidavit-in-rejoinder by controverting the stand of the respondents. Even at the stage of hearing final arguments, when the petitioner was informed that his representation had been rejected by the Vice-Chancellor, no effort was made by him to refute the allegations. 18. In Tulsi Ram Patel’s case (supra), the Court observed that whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. What is requisite is that the holding of the enquiry is not practicable in the opinion of a reasonable man taking a reasonable stock of the then prevailing situation. 19. In Jaswant Singhs case (supra), the Court held that the decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. 20. It is not disputed that the situation, after the petitioner had been served with notice Annexure P-3, did not aggravate or that the acts as noticed by the Executive Engineer were not committed, namely, disruption in the electrical system. It was, as we have noticed on perusal of the record that the Executive Engineer on the basis of the situation prevailing then took a decision. It was, as we have noticed on perusal of the record that the Executive Engineer on the basis of the situation prevailing then took a decision. It was not his ipse dixit, but a decision arrived at after taking stock of the entire situation prevailing then for which there is sufficient and independent material available on record. We are satisfied that the decision of the Executive Engineer taken in the situation prevailing then, is in writing and is based on material on record. 21. Learned Counsel for the petitioner contended that the impugned order is bad inasmuch as it nowhere records that the competent authority had recorded satisfaction as to the dispensation of enquiry and in addition thereto, the petitioner was not informed that such a decision has been taken to dispense with the holding of disciplinary enquiry. Both these submissions deserve to be negatived in view of what has been held in Tutsi Ram Patel’s case (supra) that the competent authority, must record its reasons in writing for his satisfaction that it was not reasonably practicable to hold the enquiry. Reasons so recorded need not contain the detailed particulars but there is no obligation to communicate the reasons to the Government servant though the Court said that it would, however, be better that reasons are communicated so as to enable the employee to challenge the decision by filing petition in the High Court or in the Supreme Court of India, and if reasons are not communicated and matter comes before the Court, the Court can direct the reasons to be produced and also furnished to the employee and if the same are not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order stand vitiated. In the instant case, reasons were communicated but in its return, the University gave the reasons before the Court and on perusal of record, we are satisfied that the reasons were so recorded by the competent authority will satisfied itself that it was not reasonably practicable to hold enquiry. It was not incumbent on the University to have communicated the reasons on the petitioner. 22. The learned Counsel for the petitioner also contended that the impugned order was otherwise bad. It was not incumbent on the University to have communicated the reasons on the petitioner. 22. The learned Counsel for the petitioner also contended that the impugned order was otherwise bad. While terminating the services, the petitioner was offered only one months salary in lieu of notice but retrenchment compensation was not paid and it was in violation of section 25 (f) of the Industrial Disputes Act. We are afraid that this submission, we cannot accept, firstly for the reason that no such case has been made out in the petition and secondly we have found that the petitioners services were terminated, in accordance with the service contract and it is not retrenchment within the ambit of section 25 (f). No other point was urged. 23. In view of the above, we have no hesitation in holding that there is no force in the writ petition, which is dismissed, leaving the parties to bear their respective costs. Petition dismissed.