Atul Krishna Kundu v. Union of India — 1994 DIGILAW 144 (CAL)

JUDGMENT In this writ application the petitioner has challenged the validity of an order of removal dated 27th August, 1979 being annexure 'A' to the writ application and also certain subsequent orders being annexures 'D', 'G', 'H' and 'P' to the writ application. 2. Shortly stated, the facts are, as follows :– The petitioner, a qualified Civil Engineer, joined the Hindustan Steel Limited on 15th November, 1971 and was posted to its Central Engineering Design Bureau at Ranchi as a Design Engineer. On 6th May, 1972 the petitioner was transferred to the System Engineering Section of the Central Engineering Design Bureau. 3. On 31st March, 1973, Central Engineering Design Bureau of Hindustan Steel Limited was segregated from Hindustan Steel Limited and a new body viz. Metullurgical & Engineering Consultants (India) limited, a Government of India Undertaking, was formed with its Headquarter at Ranchi. All the persons who were in the employment in Central Engineering Design Bureau were transferred to the said Metullurgical & Engineering Consultants (India) Ltd. (hereinafter referred to as Mecon, for short). 4. Mecon is a State within the meaning of Article 12 of the Constitution and the respondents have not denied about the status of Mecon as aforesaid. Mecon framed its service rules and conditions which came into force on 1st April, 1973. 5. Pursuant to an Office Order dated 24th February, 1979, the petitioner was promoted to the post of Senior Design Engineer in the office of Mecon with effect from 1st March, 1979 with condition that the petitioner will remain on probationary period for a period of six months. Pursuant to the said order of promotion the petitioner assumed the charge in the post of Senior Design Engineer on 1st March, 1979. 6. It appears that due to personal difficulties and ailments, the petitioner proceeded on leave with effect from 5th March, 1979 and remained on leave up to 31st March, 1979. Thereafter the petitioner prayed for extension of leave time to time and he was on leave upto 4th August, 1979. 7. After expiry of the leave on 4th August, 1979, the petitioner made a further application praying for extension of leave and also for grant of special leave upto 31st August, 1979. 8. Thereafter the petitioner prayed for extension of leave time to time and he was on leave upto 4th August, 1979. 7. After expiry of the leave on 4th August, 1979, the petitioner made a further application praying for extension of leave and also for grant of special leave upto 31st August, 1979. 8. By a letter dated 7th August, 1979 issued by Mecon the petitioner was advised to report for duties immediately indicating that no further extension of leave would be granted to him. So far as the prayer for special leave was concerned, Mecon did not accede to the said request. 9. It is alleged by the petitioner that by an order dated 27th August, 1979 the Senior Personnel Officer purported to removed the petitioners from service. The order dated 27th August, 1979 being annexure 'A' to the writ application is reproduced hereinbelow:– "OFFICE ORDER Shri A.K. Kundu, Sr. Design Engineer, has been absenting from duty without any information and prior sanction of leave with effect from 5th August, 1979 Despite letter No. 11.73 1.1611 PA 5203 dated 7th August, 1979 requiring him to report for duty immediately, he failed to report for duty. Accordingly Shri A.K. Kundu, Sr. DE is deemed to have left the services of the company on his own accord. Accordingly, his name stands removed from the rolls of the company with effect from 27th August, 1979. This issues with the approval of the Competent authority. Sd/- D. D. Khanna, Sr. Personnel Officer." 10. On receiving the order of removal the petitioner made representations dated 10th September, 1979 and 26th October, 1979 to the Chairman-cum-Managing Director of Mecon requesting the said authority to recall the order of removal and to reinstate him in service. 11. The Chairman-cum-Managing Director of Mecon, considering the representations issued a fresh letter of appointment re-appointing the petitioner in Mecon in the post of Senior Design Engineer which he was holding earlier. It is stated that the said letter of appointment was issued on certain terms and conditions and the said letter of reappointment dated 27th October, 1979 is annexure 'C' to the writ application. By a letter dated 26th October, 1979, the petitioner conveyed his acceptance of the offer of appointment as Senior Design Engineer at Mecon. 12. It is stated that the said letter of appointment was issued on certain terms and conditions and the said letter of reappointment dated 27th October, 1979 is annexure 'C' to the writ application. By a letter dated 26th October, 1979, the petitioner conveyed his acceptance of the offer of appointment as Senior Design Engineer at Mecon. 12. On joining at Mecon en the basis of the said letter of appointment dated 26.10.79, the petitioner made representations to the authority with two-fold prayers. The first prayer was that the period from 1.8.79 to 26.10.79 be regularised by granting leave and the second prayer was that after granting leave he should be given continuity in service. 13. On receipt of the said representation the authorities of Mecon informed the petitioner by letters dated 22.12.79 (annexure D), 7.2.83 (Annexure 'G') and 31.12.83 (Annexure 'H'), that the prayer for regularising the period from 1.8.79 to 26.10.79 and the other prayer about continuity of service could not be allowed and the said prayers were rejected and the said orders are also subject matter of the writ application. 14. On 27.6.88 the petitioner was promoted to the post of Specialist and he was asked to remain on probation for six months. 15. The petitioner has also challenged the Office Order dated 6th June, 1987 issued by the Personnel Officer whereby Mecon has informed him that the performance of the petitioner in the post of Specialist having not been found to be satisfactory, the said period of probation was extended for a further period of six months with effect from 27.12.86. 16. On 16th November, 1987 the petitioner took out the present writ application challenging the validity of the order of removal dated 20th August, 1979 being annexure 'A' to the writ application. The petitioner has also challenged the validity of the orders being annexures 'D', 'G', 'H' and 'P' and the nature of these orders has been indicated in the foregoing paragraph. 17. Mr. P. K. Chatterjee, learned Advocate appearing on behalf of the petitioner, has challenged the legality of the order of removal and further submitted that the period from 1.8.79 to 26.10.79 ought to have been regularised by way of granting leave. 17. Mr. P. K. Chatterjee, learned Advocate appearing on behalf of the petitioner, has challenged the legality of the order of removal and further submitted that the period from 1.8.79 to 26.10.79 ought to have been regularised by way of granting leave. The learned Advocate has further contended that in the event of regularisation of the said period he would have got the privilege of rendering past service and since the continuity in service has not been restored the petitioner has lost various service benefits. 18. Mr. Chatterjee first of all placed rule 8.1.5 of the Mecon. Rule 8 1 5 of the said service regulation is reproduced hereinbelow :– "8.1.5 UNAUTHORISED ABSENCE An employee who remain absent without authority for a period of 10 (ten) days either beyond the period of leave originally granted in his favour, or otherwise, shall be presumed to have left the service of the company on his own accord without notice and in that event his service shall be liable to termination on the expiry of ten day period. This shall, however, be without prejudice to the right of the Company to take any other action against the defaulter as per the terms and conditions of service." 19. Mr. Chatterjee first submitted that the service regulations provide that there is automatic termination of service on overstay but still removal from service without giving an opportunity to show cause is illegal. Mr. Chatterjee placed reliance on (1) Jaisankar v. State of Rajasthan, AIR 1966 SC 492 . In the case Supreme Court observed that the removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority. "A discharge from service of an incumbent by way of punishment amounts to removal from service and the constitutional protection of Article 311 cannot be taken away from him contending that under the service regulations the incumbent himself gives up the employment and all that the Government does not to allow the person to be reinstated. "A discharge from service of an incumbent by way of punishment amounts to removal from service and the constitutional protection of Article 311 cannot be taken away from him contending that under the service regulations the incumbent himself gives up the employment and all that the Government does not to allow the person to be reinstated. It is true that there is compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal and one circumstance deserving removal may be overstaying one's leave. But a person is entitled to continue in service if he wants until his service is terminated in accordance with law. It is true that the regulation speaks of reinstatement; but what it really amounts is that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. No doubt the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but it cannot order a person to be discharged from service without at least telling him that they proposed to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done, the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount so saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the regulation describes it." 20. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the regulation describes it." 20. In the case of (2) Deokinandan Prasad v. The State of Bihar, reported in AIR 1971 SC 1409 , the Supreme Court held that although Rule 76 of Bihar Service Code, 1952 prescribes automatic termination of service for continuous absence for five years, an order passed to that effect without giving opportunity to Government servant offends Article 311 of the Constitution. 21. In the case of (3) The State of Assam v. Akshaya Kumar Deb, reported in AIR 1976 SC 37 , the Supreme Court in similar circumstance held that the Government servant should have been given an opportunity to show cause against the termination of service of the service by application of fundamental rule 18. Supreme Court held that the same was a requirement of natural justice. In the absence of such opportunity the termination was illegal. 22. Although the petitioner was not a civil servant but was an employee under an authority and although the provisions of Article 311 or the Constitution will not apply in the instant case, but there is no debate that the principles of natural justice will not apply. 23. Mr. Chatterjee submitted that in the instant case prior to issuance of the order of removal from service which is annexure 'A' to the writ application, the petitioner was not served with any show cause notice, there was no chargesheet, there was no personal hearing and the authorities of Mecon in removing the petitioner from service with effect from 27th August, 1979 in exercise of the powers conferred under regulation 8.1.5 as aforesaid. Mr. Chatterjee submitted that such an action is not permissible having regard to the principles laid down in the case of Jaisankar(supra). The petitioner was condemned unheard and the order was in fact a punishment. Mr. Chatterjee submitted that although regulation 8.1.5 of the service regulation does not postulate and pre-decisional hearing but even then the petitioner cannot be removed from service without giving him an opportunity of showing cause which was clearly laid down by the Supreme Court in the said case of Jaisankar (supra). 24. Secondly, Mr. Mr. Chatterjee submitted that although regulation 8.1.5 of the service regulation does not postulate and pre-decisional hearing but even then the petitioner cannot be removed from service without giving him an opportunity of showing cause which was clearly laid down by the Supreme Court in the said case of Jaisankar (supra). 24. Secondly, Mr. Chatterjee submitted that by issuing a fresh letter of appointment dated 26th October, 1979 the respondents sought to forfeit the past service of the petitioner and decided that the period from 1.8.79 to 26.10.79 could not be regularised by way of granting of leave and the rejection of the prayer of continuity in service being annexures 'D', 'G' and 'H' to the writ application, according to Mr. Chatterjee could not be sustained inasmuch as non-observance of the principles of natural justice. In support of such contention Mr. Chatterjee placed reliance on the case of (4) Shivsankar v. Union of India reported in AIR 1985 SC 514 . In the said case of the railway men participated in an illegal strike and were absenting themselves from duty without authority. In exercise of the powers conferred under paragraphs 1301 and 1304 of the Railway Establishment Manual, the Divisional Railway Manager, Western Railway, Ratlam Division, passed an order to the effect that there was a break in the service of the petitioners from the dates showing against each of them as they participated in an illegal strike and absented themselves from duty without authority. The Supreme Court struck down the order complained of holding that the aforesaid paragraphs 1301 and 1304 of the Railway Establishment Manual did not exclude the observance of the principles of natural justice either expressly or by necessary implication and accordingly the order of forfeiture of past service of the railway employees was set aside on the ground that they were not heard or showed cause against the proposed action. 25. Relying upon the aforesaid decision Mr. Chatterjee submitted that mecon has not assigned any reason whatsoever why the prayer for regularization of the period from 1.8.79 to 26.10.79 could not be acceded to and why the prayer of continuity in service could not be acceded, were rejected and from the orders being annexures 'D', 'G' and 'H' to the writ application were passed that the petitioner was never heard. 26. Mr. 26. Mr. Chatterjee on the question of continuity in service cited the case of (5) Ram Chandra Jadav v. State of Bihar & Others reported in 1988 (Supplementary) S. C. Cases 779. In the said case Supreme Court allowed the prayer of continuity of service but directed that the petitioner would not be entitled to any back wages for the interregnum in view of the circumstances of the case and in view of the fact that the appellant therein approached the court after considerable time lag. 27. Mr. Chatterjee submitted that the order being annexure 'D' to the writ application whereby the probationary period was extended for another six months was punitive in character. Mr. Chatterjee finally submitted that if the period from 1.8.79 to 26.10.79 would have been regularised by way of granting special leave then the petitioner would have gone in a more higher position in his service career since his juniors were given higher promotion before the petitioner. 28. Mr. P. P. Ginwala, learned Senior Advocate, appearing on behalf of the respondents Nos. 2 to 7 raised a preliminary objection about the maintainability of the writ application Mr. Ginwala submitted that the prayer for continuity of service by way of granting leave for the period 1.8.79 to 26.10.79 was dismissed by orders dated 7.2.83 and 31.12.83 whereas the petitioner preferred the writ application on 16.11.87. According to Mr. Ginwala, the writ application deserves dismissal because of delay and laches on the part of the petitioner. 29. It appears from the records of this particular case that when the writ application was moved on 16.10.87 the respondents did not raise such objection and allowed this court to entertain the petition and to hear the matter on merits. When the matter comes up for final hearing on merits after the expiry of a substantial period of time the respondents took up the primary point that since the petitioner did not move the petition earlier, the court should dismiss the petition on the ground of laches. 30. In the case of (6) Hriday Narain v. Income-Tax Officer, Bareilly, reported in AIR 1971 SC 33 a question was raised about the maintainability of the writ application at the hearing stage on the ground that the petitioner did not avail of the alternative remedy. 30. In the case of (6) Hriday Narain v. Income-Tax Officer, Bareilly, reported in AIR 1971 SC 33 a question was raised about the maintainability of the writ application at the hearing stage on the ground that the petitioner did not avail of the alternative remedy. It was submitted that the High Court erred in law by entertaining the petition and hearing the matter on merits. The Supreme Court held that the petition cannot be rejected on the ground that the statutory remedy was not exhausted inasmuch as the High Court entertained the petition and heard the matter on merits. 31. In the instant case the respondents never raised the objection of delay and laches that the petition was filed on 16.11.87 and kept the mailer pending for a 1ong time and therefore, at the final hearing stage, in my opinion, the preliminary objection has no substance and in view of the principles laid down in the Hriday Narain's case, the preliminary objections stand overruled. 32. On the question as to whether the order of removal was rightly issued under regulation 8. l. 5 of the service regulations, Mr. Ginwala submitted that by taking such action against the petitioner there was no breach of Article 14 of the Constitution or any breach of law and the action was not arbitrary or discriminatory since the petitioner absented himself for a specified period, it would be presumed that he has left the service out of his own accord and volition. 33. In support of such contention Mr. Ginwala cited the following decisions :– (7) Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee and Others, 1978 (1) LLJ 1 ; (8) The Management of Hamdard Dawakhana (Wakf) Delhi v. D. D. Gupta, 1985 Labour Industrial Cases 325 ; (9) Baba Saheb Devgonda Patil v. The Managing Director, Panchgonda Sahakari Shakhar Karkhana Ltd., 1988 Labour Industrial Cases 1282 (10) Parthasarathy Mitra v. Union of India, 1992(1) Cal LJ 399. Let me examine now the aforesaid contentions of Mr. Ginwala in the light of the decisions placed by him. 34. In the case of Delhi Cloth & General Mills Ltd. reported in 1978 (1) LLJ 1 , the workman absented himself for eight days. The management struck off the name of the workman from the rolls. The said action was challenged by the workman. Ginwala in the light of the decisions placed by him. 34. In the case of Delhi Cloth & General Mills Ltd. reported in 1978 (1) LLJ 1 , the workman absented himself for eight days. The management struck off the name of the workman from the rolls. The said action was challenged by the workman. At all levels i.e. Labour Court, Writ Court and the Division Bench the workman succeeded. In the said case Supreme Court held that striking off the name of the workman amounted to termination and retrenchment. On facts, it was held by the Supreme Court that the workman was not absent for eight consecutive days. In paragraphs 15 and 16 of the said judgment the Supreme Court observed as follows :– “15. Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S. 2(oo) of the Act. There is nothing to show that the provisions of S. 25F (a) and (b) were complied with by the management in this case. The provisions of S. 25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid. 16. We do not find any merit in this appeal which is dismissed with costs. 35. It appears that the management lost the case and the action of the management striking off the name of the workman from its rolls on 24th August, 1965 was found to be erroneous. The principles laid down by the Supreme Court in the said case is against the respondents herein because the Supreme Court did not approve the action of the management in striking off the name of the workman from the rills and on the contrary held that such termination from service was retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. Supreme Court further held that the provisions of Section 25F (a) and (b) of the Industrial Disputes Act were not also complied with by the management. 36. Supreme Court further held that the provisions of Section 25F (a) and (b) of the Industrial Disputes Act were not also complied with by the management. 36. The Principles of the Management of Hamdard Dawakhana (Wakf) Delhi v. D. D. Gupta, reported in 1985 Labour Industrial Cases 325, Baba Saheb Devgonda Patil, reported in 1988 Labour Industrial Cases 1282 and Parthasarathy Mitra v. Union of India, do not apply in the facts and circumstances of the present case inasmuch as the facts of those cases are not similar. In the case of Baba Saheb Devgonda Patil, 1988 Labour Industrial Cases 1282 the petitioner was absent in the office for a period of almost three years and there the Bombay High Court held that the long and continuous absence for years together without any reason or justification whatever and without anything more can, as in this case, give rise to an inference of abandonment as drawn by the authorities below and accepted by the learned single Judge. In view of the factual position that the employee was absent for a number of years, the Court held that the deletion of his name was rightly done and the facts and circumstances of that case did not warrant for attraction of Section 25F of the Industrial Disputes Act. 37. So far as the case of the Management of Hamdard Dawakhana (Wakf) Delhi and the case of Parthasarathy Mitra (supra) it appears that the attention of the learned single judge of Delhi and of this Court was not drawn to the principles laid down by the Supreme Court in the case of Jaisankar. In my view, the judgment delivered by Manoranjan Mallick, J. in Parthasarathi Mitra reported in 1992(1) CLJ (supra) is a judgment "per incuriam" inasmuch as the learned Judge has not considered the case of Jaisankar in his judgment. It further appears that the judgment of Manoranjan Mallick, J. is in direct conflict with the decision of the Supreme Court delivered in the case of Jaisankar. 38. It appears from the principles laid down by the Supreme Court in the case of Jaisankar, AIR 1966 SC 492 , the said judgment is an authority on the proposition that when the service regulations provide that there will be automatic termination or service on overstay but still removal from service without giving an opportunity to show cause is illegal. 39. 39. After hearing the respective submissions of Mr. Chatterjee and Mr. Ginwala, I am of the view that the order of removal dated 27th August, 1979 being annexure 'A' to this application cannot be sustained inasmuch as the petitioner was not given a minimum personal hearing prior to removal from service and the respondents did not issue any chargesheet. The respondents did not issue any show cause notice whatsoever and the petitioner was condemned unheard. Regulation 8.1.5 of the service regulations never excluded the application of the principles of natural justice. In view of the principles laid down by the Supreme Court in the case of Jaisankar, I am of the view that the order of removal was unjustified and was issued illegally inasmuch as the petitioner was not given any hearing and thus the principles of natural justice were completely given a go-bye and thus the order of removal being annexure 'A' to the writ application including the orders being annexures 'A', 'D', 'G', 'H' and 'P' to the writ application cannot be sustained. In the result the said orders are liable to be quashed and set aside. 40. Considering the facts and circumstances of this particular case and the factual matrix, I dispose of the writ application with the following directions :– 1) the orders being annexures 'A', 'D', 'G', 'H' and 'P' to the writ application are set aside and quashed; 2) the order of removal dated 27th August, 1979 issued by the Senior Personnel Officer, Metullurgical & Engineering consultants (India) Ltd., is set aside and quashed; 3) the respondents are directed to regularise the period from 1.8.79 to 26.10.79 by way of granting special leave and it is made clear that the petitioner will not be entitled to any back salary and/or wages for this period; 4) since the order of removal dated 27th August, 1979 is set aside, there will be continuity of service althroughout ; 5) the petitioner will also be entitled to promotion to such higher post at Mecon which was offered to the junior employees of the petitioner and the petitioner will be entitled to service and consequential service benefits on such promotion. The writ application is thus disposed of. There will be no order as to costs. The writ application is thus disposed of. There will be no order as to costs. Let a plain copy of this order be given to the learned Advocates duly countersigned by the Assistant Registrar (Court) with the usual undertaking to apply for and obtain certified copies of the same.