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Rajasthan High Court · body

1999 DIGILAW 436 (RAJ)

Union of India. v. Tulsi Das

1999-03-31

A.S.GODARA, SHIVARAJ V.PATIL

body1999
Honble PATIL, CJ.–This appeal is by the respondents in S.B. Civil Writ Petition No. 4965/90 filed aggrieved by the order dated 7.5.1997 made by the learned Single Judge in S.B. Civil Writ Petition No. 4965/90. The respondent herein filed the said writ petition challenging the order dated 13.10.1989 passed by the appellant no.3 discharging him from service and for quashing the same. Further the respon- dent sought for reinstating him in service with back wages and all other consequential benefits. The said writ petition was disposed of on 3.11.1995 by the learned Single Judge placing on record that the learned counsel for the respondent made a statement on his behalf that he did not want back wages and that he was mainly concerned with the pensionary benefits; that the learned counsel for the appellants tried to support the impugned order, but the same was not pressed much and it was left to the Court to pass an appropriate order. In that view, the learned Single Judge set aside the impugned order dated 13.10.1989 and directed that the respondent be treated as retired from service with effect from 28.2.1993 on completing 20 years of service. But, no other benefits of service including back wages etc. were granted. However, the appellants challenged the said order of the learned Single Judge in D.B. Civil Special Appeal No. 387/96 and which appeal was allowed by the Division Bench on 8.1.1997 (1) and the matter was remanded with a direction to re-hear the writ petition on merits and to decide the same in accordance with law, preferably within three months from the date of the order. After remand, the lear- ned Singh Judge, by the impugned order in this appeal, allowed the writ petition and set aside the order dated 13.10.1989 discharging the respondent from service. The learned Single Judge taking note of the fact that the respondent had already completed 20 years of service on 28.2.1993 did not give direction for reinstatement, but directed the appellants to treat the respondent as retired from service with eff- ect from 28.2.1993 and to grant him full back wages till that date and other consequential benefits of service as if his services were never terminated. The learned Single Judge further directed the appellants to continue to pay the pensionary benefits to the respondent which they were paying till January, 1997. The learned Single Judge further directed the appellants to continue to pay the pensionary benefits to the respondent which they were paying till January, 1997. The learned Single Judge also imposed exemplary cost of Rs. 10,000/- on the appellants. Hence, the appellants aggrieved by the said order of the learned Single Judge dated 7.5.1997 (2) are before this Court in this appeal. (2). The learned counsel for the appellants contended that (1) even though the order of discharge did not contain reasons, but it was the one, passed after perusal of th reply given by the respondent to the show cause notice, which is evi- dent from the records; in a case like this recording detailed reasons relating to the members of the Air Force, was not at all required; however, no prejudice was shown to have been caused to the respondent by the order of discharge as he was a habitual offender having had four red marked entries, which entries had become final, inasmuch as, the respondent had not challenged those entries under Rule 33; (2) the new amended policy dated 18.12.1996 was not at all applicable to the case of the respondent and the learned Single Judge committed an error in holding that the new amended policy dated 18.12.1996 is applicable to the case of the respondent; a plain reading of the new amended policy dated 18.12.1996 (Annex. R/3 to the appeal) itself shows that it did not apply to the proceedings pending before the Courts; it applies only to the cases which were under process before the concerned authorities of the Air Force; and (3) the learned Single Judge was not right in awarding exemplary cost of Rs. 10,000/- to be recovered from the concerned officers, inasmuch as, the earlier order passed by the learned Single Judge in the same writ petition was set aside by the Division Bench of this Court while allowing the appeal; having regard to the new amended policy Annex.R/3 and taking note of the fact that the respondent did not challenge the red entries against him under Rule 33, it could not be said that the appellants took up a frivolous litigation so as to impose exemplary cost of Rs. 10,000/- (3). On the other hand, the learned counsel for the respondent argued justifying the order of the learned Single Judge. 10,000/- (3). On the other hand, the learned counsel for the respondent argued justifying the order of the learned Single Judge. He submitted that there was absolutely nothing to show that before the impugned order of discharge was passed, there was consideration of the reply given by the respondent to the show cause notice; there was not even reference to the reply in the impugned order of discharge and that no material whatsoever was placed before this Court to show that the impugned order of discharge was supported by the reasons found on the records. The zerox extract filed at Annex. R/4 to the appeal to show that there were reasons to support the impugned order of discharge, cannot be accepted at this stage in this appeal and even otherwise it does not show that there was application of mind by the competent authority and that the reply given by the respondent to the show cause notice, was considered. (4). The learned counsel for the respondent also contended that the respondent belongs to the Scheduled Caste and was working as Class IV servant as Safaiwala with the Air Force; all that he wanted was pensionary benefits; he even gave up all other claims including back wages except the pensionary benefits before the learned Single Judge; he reiterated before us, the same submissions that the respondent will be satisfied if only pensionary benefit is allowed to him and he does not claim back wages or any other benefits. He asserted that the new amended policy Annex. R/3 did apply to the case of the respondent, relying on clause 11 of the said new amended policy. (5). We have carefully considered the submissions made by the learned cou- nsel for the parties. (6). The facts not in dispute are that the respondent earned four red ink entries in the conduct sheet. The first offence was committed on 12.12.1974 and the last one was dated 7th May, 1988. He was given a show cause notice dated 4.8.1989. He submitted his reply to the said show cause notice in August, 1989. Thereafter, he was found unsuitable for further retention in service and discharge order was passed on 6.10.1989. The said order was issued on 13.10.1989 and actually the respondent was discharged from service on 4.11.1989. The writ petition was filed by the respondent in the year 1990 challenging the order of discharge dated 13.10.1989. Thereafter, he was found unsuitable for further retention in service and discharge order was passed on 6.10.1989. The said order was issued on 13.10.1989 and actually the respondent was discharged from service on 4.11.1989. The writ petition was filed by the respondent in the year 1990 challenging the order of discharge dated 13.10.1989. The learned Single Judge had allowed the said writ petition on 3.11.1995 observing that the learned counsel for the respondent did not want back wages; he wanted the impugned order of discharge to be set aside so that the respondent might get pension because he had been discharged from service after putting in more than 16 years of service; the learned counsel for the appellants initially tried to argue that the impugned order of discharge was valid, but he did not press much to go the merits of the case. In that view, the learned Single Judge allowed the writ petition and quashed the impugned order of discharge observing that the respondent came from a lower strata of society. He directed that the respondent should be treated as retired from service on 28.2.1993 to give pension while denying back wages and there was no question of reinstatement into service. This order of the learned Single Judge was challenged by the appellants before the Division Bench of this Court in D.B. Civil Special Appeal No. 387/96. The Division Bench of this Court allowed the said appeal and remanded the case to the learned counsel for the parties. After remand, the learned Single Judge has passed the impugned order allowing the writ petition on two grounds; (1) that the impugned order of discharge was passed in clear violation of the principles of natural justice; and (2) that the new amended policy circulated by letter dated 18.12.1996 (Annex. R/e to the appeal) was applicable to the case of the respondent, inasmuch as, there was a gap of 8 years between the two punishing and the first punishment of 1974 could not be counted having regard to the new amended policy Annex. R/3; if that be so, the impugned order of discharge could not be passed against the respondent. The learned Single Judge also found that the appellants engaged in vexatious litigation and the poor respondent was unnecessarily troubled and, as such, exemplary cost of Rs. 10,000/- was awarded against the appellants to be paid to the respondent. (7). R/3; if that be so, the impugned order of discharge could not be passed against the respondent. The learned Single Judge also found that the appellants engaged in vexatious litigation and the poor respondent was unnecessarily troubled and, as such, exemplary cost of Rs. 10,000/- was awarded against the appellants to be paid to the respondent. (7). In the light of the rival submissions of the learned counsel for the parties and looking to the impugned order of the learned Single Judge, the following points arise for our consideration:- ``(1) Whether the new amended policy dated 18.12.1996 (Annex. R/3 to the appeal) is applicable to the case of the respondent; (2) Whether the impugned order of discharge dated 13.10.1989 is unsustainble on account of violation of the principles of natural justice; and (3) Whether the order of the learned Single Judge imposing exemplary cost of Rs. 10,000/- on the appellants on the ground that they en- gaged in vexatious litigation is justified in the facts and circumstances of the case. Point No.1 (8). The order of discharge was passed on 6.10.1989. It is issued on 13.10.1989 and the respondent was actually discharged from service on 4.11.1989. The new amended policy Annex. R/3 is dated 18th December, 1996. Annex. R/3 does not indicate that it is made retrospective in its application. It is addressed to seven Commands from the Air Headquarters. As can be seen from paragraph-1 of Annex. R/3, the aim of the said letter is to apprise seven Headquarters Commands regarding the modifications introduced in the earlier policy on Habitual Offenders and to issue consolidated guidelines to process such cases. Clause 9 of the said letter Annex. R/3 reads: ``Guidelines. Consolidated procedural guidelines for actions necessary at various stages/levels while processing a case under Habitual Offenders Policy are enclosed as Appendix to this letter. (9). This clause shows that while processing a case under Habitual Offender were to be processed only by the authorities at various stages and levels keeping in view the procedural guidelines. (10). Clause 11 of the said new amended policy Annex. R/3 reads: ``11. Pending Cases. All the cases pending till date at any stage/level shall be cleared as per the modified policy. (12). Clause 11 only says that all the pending cases till date at any stage/level shall be cleared as per the modified policy. The said modified policy Annex. (10). Clause 11 of the said new amended policy Annex. R/3 reads: ``11. Pending Cases. All the cases pending till date at any stage/level shall be cleared as per the modified policy. (12). Clause 11 only says that all the pending cases till date at any stage/level shall be cleared as per the modified policy. The said modified policy Annex. R/3 could not give any direction to the Courts to clear pending cases. Annex. R/3 was addressed to 7 Commands, as already stated above, and clause 9 indicated the pro- cedural guidelines to be followed and Clause 11 directed the authorities to clear all the cases pending till date as per the modified policy. By reading Annex. R/3 in its entirety there can be no doubt that it was addressed to the officers of the Air Force to follow the particular procedure in the cases of habitual offenders in the matter of discharge and that it could be applied to all the pending cases at any sta- ge/level before the officers for clearing. As already stated above, Annex. R/3 is not made retrospective in its application. It is not stated in it that in regard to cases pending before the Courts, the said new amended policy Annex. R/3 shall apply. Thus, we have no hesitation to hold that the new amended policy Annex. R/3 could not be applied to the case of the respondent pending in the Court. We are unable to agree with the conclusion arrived at by the learned Single Judge in this regard. Point No.2 (13). It is not disputed that a show cause notice dated 4th August, 1989 (Ex.9 to the writ petition) was issued to the respondent before passing the impugned order of discharge against him. In the said show cause notice, various instances relating to the conduct of the respondent are mentioned. At the end of the notice, he was asked to show cause why he should not be discharged from service within ten days, failing which it shall be presumed that he had nothing to urge in his defence against the discharge from service and further action would be taken acc- ordingly. Looking to the purpose and tenor of the show cause notice, it is obvious that an opportunity was intended to be given to the respondent to explain as to why action for discharging from service should not be taken. Looking to the purpose and tenor of the show cause notice, it is obvious that an opportunity was intended to be given to the respondent to explain as to why action for discharging from service should not be taken. In other words, he was given an opportunity to defend himself. The respondent did reply to the show cause notice, but there is nothing in the impugned order of discharge to show that the re- ply given by the respondent to the show cause notice was considered before passing the impugned order of discharge. Leave aside the reasons fro not agreeing with the reply, but even there is no reference to the reply. The learned counsel for the appellants tried to support the impugned order of discharge on the ground that the reasons are recorded in the file and the file disclose that the reply of the respon- dent was considered by the concerned authorities. The files were not produced before the learned Single Judge though the proceedings were pending for quite a long time. A zerox copy of two sheets is produced as Annex. R/4 in the appeal. On the first page (typed as page 10), there were five paragraphs where there is a reference to the reply given by the respondents and no accepting the reasons given in the reply. The second page reads: ``6. Submitted. Sd/- (SM Sharma) Sqn Ldr O i/c P1 03 Oct 89 Exth.....520 OHg. CPSO Sd/-03/10 SOA Para 5 is recommended. Sd/-04/x AOC-IN-C Para 5 approved. Sd/-6/10 11 1. Refer Note-10. 2. Please issue necessary discharge orders in respect of 800318 NC (E) Tulsidas Safaiwala of 5 FBSU under Rule 15(2) (k) of AF Rules 1969 - ``HIS SERVICES NO LONGER REQUIRED - UNSUITABLE FOR RETETION IN THE AIR FORCE. Sd/ (SM Sharma) sqn Ldr o i/c P3O i/c p1 11 Oct 89 Extn. 520 (14). Even reading of these two pages clearly shows that the Approving Authority has simply stated that para 5 is approved. Under the circumstances, it is difficult to accept the case of the appellants that the reply given by the respondent to the show cause notice was considered before passing the impugned order of discharge. The original files were not produced before the learned single Judge. By Annex. Under the circumstances, it is difficult to accept the case of the appellants that the reply given by the respondent to the show cause notice was considered before passing the impugned order of discharge. The original files were not produced before the learned single Judge. By Annex. R/4 itself as produced in this appeal containing two pages, it is not possible for us to accept the case of the appellants that the reply given by the respondent to the show cause notice was considered and that the impugned order was supported by reasons. The argument of the learned counsel for the appellants is that the order of discharge need not contain reasons by itself if it is otherwise shown that the rea- sons are found in the file supporting the order and that no prejudice was shown to have been caused to the respondent in passing the order of discharge when it was passed after considering the reply; according to him, in this view, there was no violation of the principles of natural justice in passing the impugned order of discharge. We do not accept this argument. The show cause notice, as already sta- ted above, intended to give an opportunity to the respondent to explain his defence before passing the order of discharge; non-consideration of the reply given by the respondent to the show cause notice, in our view, has seriously prejudiced the case of the respondent and the impugned order of discharge was clearly in violation of the principles of natural justice. On this ground, the impugned order of discharge cannot be sustained. In the normal course, we would have quashed the impugned order of discharge cannot be sustained. On this ground, the impugned order of discharge cannot be sustained. In the normal course, we would have quashed the impugned order of discharge cannot be sustained. In the normal course, we would have quashed the impugned order of discharge and remanded the case to the concerned authorities to pass a fresh order after considering the reply given by the respondent to the show cause notice, but we do not propose to adopt such a course in this case for the reasons that the impugned order is dated 13.10.1989; the proceedings are pending in this Court for about 9 years; the respondent had put in 16 years of service on the date of passing the impugned order of discharge; he could complete 20 years of service on 28.2.1993 in order to be eligible for earning pension; the respondent as stated by his learned counsel, is prepared to give up his claim including the back wages except the pension; the respondent is only a Class IV servant `Safaiwala and he belongs to Scheduled Caste; after the order of the learned Single Judge dated 3.11.1995 allowing the writ petition, the authorities started paying pension to the respondent; subsequently it was stopped when the Division Bench of this Court on earlier occasion set aside the said order of the learned Single Judge and remanded the case for a fresh disposal; this is a second time that the matter is coming up before us in appeal. (15). Under the circumstances, we think it just and appropriate to set aside the impugned order of discharge dated 13.10.1989 and direct the appellants to treat the respondent as retired from service with effect from 28.2.1993 and pay him pen- sion accordingly. Point No.3 (16). From what is stated above while discussing the points no.1 and 2, it is not possible for us to accept the view taken by the learned Single Judge that the appellants were engaged in vexatious litigation so as to trouble the respondent. This being the position, the cost of Rs. 10,000/- awarded by the learned Single Judge as exemplary cost to be paid by the appellants to the respondent cannot be sustained. (17). We do not think it necessary to refer to the decisions cited by the learned counsel for the parties on the settled principles of law in the light of our findings on the facts found. (18). 10,000/- awarded by the learned Single Judge as exemplary cost to be paid by the appellants to the respondent cannot be sustained. (17). We do not think it necessary to refer to the decisions cited by the learned counsel for the parties on the settled principles of law in the light of our findings on the facts found. (18). In the result, we dispose of this appeal with the following order:- ``(1) We set aside the impugned order of discharge dated 13.10.1989 and direct the appellants to treat the respondent as retired from service with effect from 28.2.1993 on which date he would have com- pleted 20 years of service and as the question of his reinstatement in service does not arise and to pay him pension accordingly including the arrears. (2) We set aside the order of the learned Single Judge impugned in this appeal in all other respects. This appeal stands disposed of accordingly. No order as to costs.