Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 1684 (PNJ)

Bhupinder Singh Chahal v. State Of Punjab

2007-09-17

ADARSH KUMAR GOEL, AJAI LAMBA

body2007
Judgment Adarsh Kumar Goel, J. 1. This petition seeks quashing of order dated 29.7.2003 passed by the Punjab State Schools Tribunal. 2. Case of the petitioner is that he was working as S.S. Master in respondent No. 4 School against an aided post. Services of the petitioner were dispensed with vide order dated 8.5.1994 after an enquiry on the seven charges which included the charge that on 29.3.1993, he misbehaved with two lady teachers in an intoxicated condition. The said order was approved by the Director, Public Instructions (Schools) under Section 4 of the Punjab Privately Managed Recognized Schools Employees (Security of Service) Act, 1979 (in short, the Act) on 11.11.1997 with the observations that as per Rule 14 of the Punjab Privately Managed Recognized Schools Employees (Security of Service) Rules, 1981 (in short, `the Rules), the petitioner will be treated to be on suspension and paid subsistence allowance. Operative part of the order is as under : "Approval of the Director of Public Instruction(s) is hereby accorded to dismiss/terminate the services of Sh. Bhupinder Singh, S.S. Master, S.G.A.D. Senior Secondary School (Burj Sahib) Dhariwal. But his intervening period, for which he had been ousted from service, shall be treated as suspension period and he shall be paid subsistence allowance as per provisions of Rule 14 of the Security of Service Rules, 1981." 3. The petitioner preferred an appeal which has been dismissed by the Tribunal on 29.7.2003. It was observed : "The learned counsel of Shri Bhupinder Singh Chahal, the appellant in this case, has not been able to deny the charges levelled against him that he used to come to school in drunkard condition. To suppert his arguments, the learned counsel for the respondent, Shri BPS Virk, produced the photograph of the appellant wherein Shri Chahal has been shown lying in undesirable position in the school premises. The learned counsel for the respondents further stated that the correct laid down procedure was followed in charge-sheeting Mr. Bhupinder Singh Chahal and regular enquiry was conducted by affording him adequate opportunity to defend his case. Through properly passed resolutions, the Managing Committee decided to terminate his services, an action which was approved by DPI(S) as such the appeal deserves to be dismissed. After hearing the arguments of both the learned counsel, I am of the view that personal conduct of Shri Bhupinder Singh Chahal was undesirable. Through properly passed resolutions, the Managing Committee decided to terminate his services, an action which was approved by DPI(S) as such the appeal deserves to be dismissed. After hearing the arguments of both the learned counsel, I am of the view that personal conduct of Shri Bhupinder Singh Chahal was undesirable. He was repeatedly warned but he did not improve and was ultimately dismissed, I find no reasons to differ with the orders of DPI(S)." 4. Contention raised on behalf of the petitioner was that no formal order of dismissal has been passed after grant of approval, which was statutorily required and the petitioner should, therefore, be treated to be continuing in service. The impugned order of grant of approval was illegal to the extent it allowed suspension exceeding six months without prior approval. Reliance has been placed on judgment of this Court in Smt. Kamlesh Kumari v. The State of Punjab and others, 1998(1) PLR 433. 5. Learned counsel for the management-school submitted that order of dismissal had already been passed against the petitioner on 8.5.1994 being Annexure P.5 but by operation of law and by virtue of order of approval, Annexure P.8, the same became operative from the date of approval granted on 11.11.1997 vide Annexure P. 8 and till 11.11.1997, the petitioner was treated to be under suspension and paid subsistence allowance. Questions for consideration are :- (i) Whether an order of dismissal from service could be passed before approval of the Director and its effect. (ii) Whether a formal order of dismissal from service was required to be passed after the grant of approval and its effect. (iii) Whether the direction to treat the petitioner under suspension for the period from 8.5.1994 to 11.11.1997 was in violation of provisions of Section 5 of the Act ? (iv) Whether interference under Article 226 of the Constitution is called for ? It will be appropriate to extract the relevant statutory provisions. Sections 4 and 5 of the 1979 Act read as under : "4. Dismissal, removal etc., of employees - (1) Subject to any rule that may be made in this behalf, no employee shall be dismissed, removed or reduced either in rank or within a time scale nor shall his services be otherwise terminated except with the prior approval of the Director. 2. Dismissal, removal etc., of employees - (1) Subject to any rule that may be made in this behalf, no employee shall be dismissed, removed or reduced either in rank or within a time scale nor shall his services be otherwise terminated except with the prior approval of the Director. 2. Any employee who is dismissed removed or reduced either in rank or within a time scale under sub-section (1) may, within three months from the date of communication to him of the order of such dismissal, removal or reduction, appeal against such order to the School Tribunal. 3. The managing committee aggrieved with the order of the Director may also appeal to the School Tribunal within a period of three months from the date of communication of the order. 5. Suspension of employees - No employee shall be kept under suspension for a period exceeding six months without the prior approval of the Director." Re : (i) 6 In view of statutory provision under Section 4 of the 1979 Act, an order of dismissal could be passed only with prior approval of the Director and no order of dismissal could be passed prior to grant of approval by the Director. 7. However, a tentative/conditional order of dismissal of service to be operative if and when approval is granted could be passed after charges were established and management of the School had taken a decision to dismiss the petition. Further, in such a situation, pending approval of the Director, an Order of suspension could be passed under inherent power of an employer. Such an order may have the effect of temporarily terminating the relationship of master-servant so that such a suspended contract comes to an end on grant of approval and if approval is not granted, the employee gets back all his wages from the date of suspension. Such a course has been approved by the Honble Supreme Court with reference to identical statutory scheme under Section 33 of the Industrial Disputes Act, 1947 (for short `the 1947 Act). 8. Such a course has been approved by the Honble Supreme Court with reference to identical statutory scheme under Section 33 of the Industrial Disputes Act, 1947 (for short `the 1947 Act). 8. Reference may be made to the judgment of the Honble Supreme Court in Hotel Imperial v. Hotel Workers Union, AIR 1959 SC 1342, wherein it was held that pending decision on application for permission under Section 33(3) of the 1947 Act, the employee could be placed under suspension, which was an implied right of the employer on account of statutory requirement to seek permission after holding an enquiry in which misconduct was established. Relevant observations are as under : "19..... We are, therefore, of opinion that the ordinary law of master and servant as to suspension can be and should be held to have been modified in view of the fundamental change introduced by S. 33 in that law and a term should be implied by Industrial Tribunals it the contract of employment that if the master had held a proper enquiry and come to the conclusion that the servant should be dismissed and in consequence suspends him pending the permission required under S. 33, he has the power to order such suspension, thus suspending the contract of employment temporarily so that there is no obligation on him to pay wages and no obligation on the servant to work. In dealing with this point the basic and decisive consideration introduced by must be borne in mind. The undisputed common law right of the master to dismiss his servant for proper cause has been subjected by Section 33 to a ban; and that in fairness must mean that, pending the removal of the said statutory ban, the master can after holding a proper enquiry temporarily terminate the relationship of master and servant by suspending his employee pending proceedings under Section 33. It follows therefore that if the tribunal grants permission, the suspended contract would come to an end and there will be no further obligation to pay and wages after the date of suspension. If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension." (Emphasis supplied). 9. If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension." (Emphasis supplied). 9. The above view was also referred to in Fakirbhai Fulabhai Solanki v. Presiding Officer, AIR 1986 SC 1168, wherein while reiterating the right to place an employee in respect of whom permission was sought, under suspension, it was held that the employee was entitled to subsistence allowance. This view was further reiterated in Ram Lakhan etc. v. Presiding Officer and others, AIR 2000 SC 1946, wherein it was held : "Just as the employer has no control over the disposal of the application under Section 33(1) of the Industrial Disputes Act, so also the employee has no control over the disposal of that application. Whether the employee would be retained in service or removed would be dependent upon the fate of the application. While the Management can afford to wait for the disposal of that application, it would be impossible for an employee who survives only on his salary to wait for the disposal of that application for an indefinite period. It would not be possible for him to sustain himself. It is in this light that the right to receive reduced salary (Subsistence Allowance) for the period of suspension has to be read along with the right of the Management to place the employee under suspension pending disposal of the application under Section 33(1) of the Industrial Disputes Act. Thus, the right of Management to suspend and the right of the employee to receive Subsistence Allowance are intertwined and both must survive together." 10. Section 33(3) of the 1947 Act requiring express permission in writing of the authority where an industrial dispute is pending before taking any action against a protected workman, is as under : "33(3). Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute - (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation - For the purposes of this sub-section a protected workman, in relation to an establishment, means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf." In view of above, view taken in Kamlesh Kumari (supra) cannot be followed being against the observations of the Honble Supreme Court in Hotel Imperial (supra). Re : (ii) 11 In view of observations already made herein above, a formal order of dismissal is required to be passed unless a tentative/conditional order of dismissal has already been passed. 12. However, in the present case, the order of Director dated 1.11.1997, Annexure P. 8 rectified the technical error in passing of order dated 8.5.1994. Approval to dismissal having been granted with a clear stipulation that period from 8.5.1994 to 11.11.1997 will be treated as period of suspension, passing of order of dismissal was mere formality and surplusage and not passing such an order had no effect, as the petitioner could not, thereafter, be treated to be in service. Charges against the petitioner having been proved and approval granted on merits, the employer could not be required to pay and wages beyond subsistence allowance nor to treat the employee in service, in view of observations of the Honble Supreme Court in Hotel Imperial (supra) dealing with an identical situation. 13. In the present case, it has not been contended that any prejudice has been caused to the employee for non-payment of subsistence allowance prior to the passing of the order dated 11.11.1997. We may also refer to the observations of the Honble Supreme Court in Indra Bhanu Gaur v. Committee, Management of M.M.D.C., AIR 2004 SC 248, which are as under : "8.......So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken that because of non-payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. The appellant could not plead or substantiate also that the non-payment was either deliberate or to spite him and not due to his own fault. It is ultimately a question of prejudice. The appellant could not plead or substantiate also that the non-payment was either deliberate or to spite him and not due to his own fault. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot amicus curiae be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non- payment of subsistence allowance amounts to denial of opportunity and vitiated departmental proceedings." Re : (iii) 14 As already observed above, the Honble Supreme Court in Hotel Imperial (supra) held that the employer has inherent common law right to temporarily terminate the relationship of master and servant by suspending the employee pending approval proceedings. Such suspension is different from the concept of suspension under Section 5, which requires prior approval of the Director for suspension beyond six months. 15. As already observed in Ram Lakhan (supra), employer has no control over disposal of application for approval within a particular time-frame. The employers right of suspension cannot, thus, be restricted to a particular period. 16. Concept of suspension in Service Jurisprudence is not limited only to suspension pending enquiry. Concept of inherent right of employer to temporarily terminate relationship of master and servant pending grant of approval, referred to in Hotel Imperial (supra) is different from concept of suspension under section 5 of the Act. Object of limiting period of suspension to six months under section 5 is in respect of such suspension, which is linked to the action within the control of the employer. Concept of suspension has also been gone into by the Honble Supreme Court, inter alia, in L.K. Verma v. HMT Ltd, (2006)2 SCC 269, wherein three kinds of suspensions have been explained by way of punishment, in exercise of inherent right, pending inquiry. Relevant observations made in para. 17 are as under : "17. Suspension is of three kinds. An order of suspension may be passed by way of punishment in terms of the conduct rules. Relevant observations made in para. 17 are as under : "17. Suspension is of three kinds. An order of suspension may be passed by way of punishment in terms of the conduct rules. An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that it may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. An order of suspension can also be passed, if such a provision exists in the rule laying down that in place of the full salary, the delinquent officer shall be paid only the subsistence allowance specified therein." 17. The above observations read with the observations in Hotel Imperial (supra) make it clear that suspension pending approval on account of a statutory ban on order of dismissal is qualitatively different from suspension referred to under Section 5 of the Act. Moreover, concept of deemed suspension is also well known in law. In a situation where it is not desirable to allow the employee to work, such a concept has been referred to, inter alia , in Ranjit Singh v. Union of India, (2006)4 SCC 153, wherein it was observed : "24. We are, therefore, of the opinion that interest of justice will be subserved if the disciplinary authority is directed to consider the matter afresh in the light of the show cause filed by the appellant herein before it. It will be desirable that an opportunity of personal hearing is also given to the appellant herein. We make it clear that although we are setting aside the order of disciplinary authority and consequently an other orders, we direct that the appellant shall be deemed to be under suspension till an appropriate order is passed by the disciplinary authority. The question of payment of back wages, it is directed, would depend upon the ultimate order that may be passed by the disciplinary authority. For the views we have taken, it is not necessary for us to consider the other contentions raised by Mr. Tripathi." 18. In view of above, the contention raised on behalf of the petitioner that suspension having continued beyond six months, was illegal and the petitioner acquired right to be reinstated on that account, cannot be upheld. For the views we have taken, it is not necessary for us to consider the other contentions raised by Mr. Tripathi." 18. In view of above, the contention raised on behalf of the petitioner that suspension having continued beyond six months, was illegal and the petitioner acquired right to be reinstated on that account, cannot be upheld. Re : (iv) 19 Admitted facts show that the employee was guilty of misconduct, which was duly admitted. The order of dismissal has been approved by the approving authority as well as by the appellate authority. For the period after decision to dismiss was taken till the date of grant of approval, subsistence allowance has been paid to the employee. In these circumstances, there is no infirmity in the impugned order. However, it may be necessary to observe that a writ Court is not bound to interfere even where an order is illegal, if such interference causes injustice. In Chandra Singh v. State of Rajasthan, AIR 2003 SC 2889; it was observed : 44. Issuance of a writ of certiorari is a discretionary remedy. (See Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645). The High Court and consequently this Court while exercising its extraordinary jurisdiction under Art. 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Art. 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. (See S.D.S. Shipping Pvt. Ltd. v. Jay Container Services Co. Pvt. Ltd. and others, (2003(4) Supreme 44). Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Art. 142 of the Constitution of India is entitled to pass such order which will be complete justice to the parties." 20. It is also well settled that mere technical violation of procedure is not enough to interfere under Article 226 of the Constitution. This Court also in exercise of its jurisdiction under Art. 142 of the Constitution of India is entitled to pass such order which will be complete justice to the parties." 20. It is also well settled that mere technical violation of procedure is not enough to interfere under Article 226 of the Constitution. In N. Balaji v. Virendra Singh and others, 2004(8) SCC 312, it was observed by the Honble Supreme Court : "10.... With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. It follows from the decision of the Constitution Bench that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice." Thus, all the questions for consideration have to be answered against the petitioner. The writ petition is dismissed.