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2014 DIGILAW 1226 (AP)

M. Gopal v. Presiding Officer, Labour Court-I

2014-09-25

CHALLA KODANDA RAM, L.N.REDDY

body2014
JUDGMENT : L. Narasimha Reddy, J. 1. This case can be in a way taken as reincarnation of Ridge v. Baldwin (1964) A.C. 40, which became the watermark for the principles of natural justice, in the field of administrative law. 2. Both the appeals arise out of the order, dated 27.09.2013, passed by the learned Single Judge in W.P. No. 22773 of 2000. For the sake of convenience, the parties are referred to as arrayed in the writ petition. 3. Briefly stated, the facts are that; the petitioner was engaged as a Sweeper on daily wage basis, by the respondent-institute from 31.10.1983 onwards. Thereafter, he has been appointed on regular basis in that post in the pay scale of Rs. 196-3-220, through order dated 14.11.1983 issued by the 2nd respondent. The District Employment Officer, Hyderabad is said to have addressed a letter dated 24.01.1984 to the 1st respondent, stating that he did not sponsor the name of the petitioner and accordingly, the services of the petitioner are liable to be terminated. That was reiterated through another letter dated 13.04.1984, addressed by the District Employment Officer. The 1st respondent issued proceedings dated 19.06.1984 terminating the services of the petitioner, in terms of Rule 5(1) of the Central Civil Services (Temporary Services) Manual, 1965. 4. Aggrieved by the order of termination dated 19.06.1984, the petitioner filed I.D. No. 201 of 1990 before the Labour Court-I, Hyderabad (for short, 'the Labour Court'). The Labour Court dismissed the I.D. through its award dated 23-08-1996. Challenging the same, the petitioner filed Writ Petition No. 22773 of 2000. He pleaded that the order of termination is contrary to the provisions of the Industrial Disputes Act, 1947 apart from being violative of principles of natural justice and that there was total non-application of mind on the part of the 1st respondent. The writ petition was opposed by the respondents by filing a detailed counter affidavit. 5. Through the order under appeal, the learned single Judge has set aside the award passed by the Labour Court and remanded the matter to it for examining the plea as to whether there was any justification for terminating the services of the petitioner without conducting departmental enquiry and without affording opportunity of being heard. The petitioner as well as the respondent are dissatisfied with the said order. The petitioner as well as the respondent are dissatisfied with the said order. While the petitioner filed Writ Appeal (SR) No. 154603 of 2014, the respondent filed Writ Appeal (SR) No. 6226 of 2014. 6. Sri P. Sridhar Rao, learned counsel for the petitioner submits that on being appointed on regular basis through order dated 14-11-1983, the petitioner became a member of service and his services could have been terminated only by initiating disciplinary proceedings. He contends that the respondents have not even issued a show cause notice, before passing the order of termination against the petitioner, let alone framing of charges and conducting of departmental enquiry. He submits that the order of termination is passed in violation of the principles of natural justice. He further submits that the 1st respondent has abdicated his power and has virtually acted to the dictates of the District Employment Officer and thereby a serious legal flaw has crept into the proceedings. According to him, once it is not disputed that no departmental or domestic enquiry was conducted, the learned single Judge ought to have set aside the order of termination and left the matter at that, and there was no necessity to remit the matter to the Labour Court. 7. Sri Ramakanth Reddy, learned counsel for the respondents on the other hand submits that the appointment of the petitioner was on the basis of sponsoring through employment exchange and once it emerged that he was not sponsored, there is no alternative for them, except to issue orders of termination. He submits that the facts of the case are so clear and unambiguous that hardly there existed any necessity to issue any charge sheet or to conduct departmental enquiry. He submits that the learned single Judge ought to have dismissed the writ petition and upheld the award passed by the Labour Court. It is also urged that the petitioner approached the Labour Court with a delay of about four years. 8. The entry of the petitioner into the service of the respondents was, as a daily wage employee. That arrangement was in force hardly for about one and half months and on 14-11-1983, he was appointed on regular basis in a pay scale. All the steps that are required for regular appointment, including the causing of police verification were taken. 8. The entry of the petitioner into the service of the respondents was, as a daily wage employee. That arrangement was in force hardly for about one and half months and on 14-11-1983, he was appointed on regular basis in a pay scale. All the steps that are required for regular appointment, including the causing of police verification were taken. A clause was added in the order of appointment to the effect that the temporary appointment will be converted into permanent appointment after the police verification is found satisfactory. The option of the petitioner was sought, and the same was furnished on 21-11-1983, the translated form of the order of appointment reads: "Sri M. Gopal has been appointed in Kendriya Hindi Sansthan, Hyderabad centre on 31.10.83 in the pay scale of Rs. 196-3-220-bar efficiency-3-232 on basic pay of Rs. 196/- as Sweeper in Temporary post on ad hoc and totally temporary basis till further orders. He will be paid the allowances given time to time by Central Government and Mandal. He will be governed by temporary service rules. Witness form sent on 03.11.83 for filling up. After the form is received the letter will be written to police for police verification. After receiving the report of verification, joining letter will be given on the condition that, if the report of Police verification is not satisfactory, he will be immediately terminated from services. It is also informed to Mr. M. Gopal that his temporary appointment will be converted into permanent appointment after the police verification report is found satisfactory. If Sri M. Gopal is willing to work on ad hoc basis in Kendriya Hindi Sansthan, Hyderabad Centre, give the assent to the undersigned through the Centre Incharge, Hyderabad Centre." 9. However, the appointment of the petitioner was terminated on 19-06-1984 by the 1st respondent. The translated form of the order of termination reads: "According to Rule 5(1) of Central Civil Service (Temp. Services) Manual, 1965, which is applicable on Central Institute of Hindi also, the services of Sri M. Gopal, Sweeper, Central Institute of Hindi, Hyderabad Centre are being terminated with immediate effect. He will be paid salary and allowances in lieu of one month's notice." 10. The basis for this is said to be two communications received from the District Employment Officer, Hyderabad. He will be paid salary and allowances in lieu of one month's notice." 10. The basis for this is said to be two communications received from the District Employment Officer, Hyderabad. Those two letters read: "Letter dated 24.01.1984 I am in receipt of your letter cited through which Employment registration cards of Smt. Yadamma and Sri M. Gopal and a duplicate copy of the list sent to this office. In this connection, I am to request you to terminate the services of Sri M. Gopal, as this office has not sponsored his name for your interview and selection. Further I am to state that this office has sent only Two lists dated 11-3-83, 18-4-83 each list consist (7) names i.e., this office has sponsored only (14) candidates in total. The list dated 17.5.83 received by you and the registration of M. Gopal is bogus one. Kindly intimate the action taken in the matter at an early date for this office record. Letter dated 13.04.1984 Kindly refer to your letter 3rd cited, in this connection I would like to inform you that the matter regarding bogus list of male candidates dated 17.5.83 has already been referred to the Commissioner of Police, Hyderabad, Andhra Pradesh for investigation purpose. In view of the above I once again request you kindly to terminate the services of Sri M. Gopal who was not sponsored by this exchange." 11. The copies of letters, if any, addressed by the respondent to the employment exchange are not made available. Feeling aggrieved by the order of termination, the petitioner started the pursuit of remedies under the Industrial Disputes Act, 1947. He filed an industrial dispute under Section 2-A(2) of the said Act. He deposed as WW 1 and filed Exs. W-1 to W-15. On behalf of the respondents, MWs 1 and 2 were examined and Exs. M-1 to M-33 were filed. An objection was raised as to the maintainability of the industrial dispute on the ground that the 1st respondent is a central government organisation and the dispute cannot be raised before the Labour Court. That objection was overruled by the Labour Court. However on the ground that the name of the petitioner was not sponsored by the employment exchange, the industrial dispute was dismissed. That objection was overruled by the Labour Court. However on the ground that the name of the petitioner was not sponsored by the employment exchange, the industrial dispute was dismissed. Repelling the contention that the dismissal from service was without conducting any enquiry, the Labour Court observed that the necessity to conduct enquiry would arise if only any acts of misconduct are alleged, and since no such charges are framed, there was no necessity to conduct any enquiry. 12. On dismissal of the industrial dispute, the petitioner approached this Court by filing the writ petition. The discussion undertaken by the learned single Judge, after taking note of the facts, is contained in para 4. It reads: "The Labour Court extracted the oral and documentary evidence and ultimately an award was passed rejecting the request of the petitioner by order dated 23-08-1996. For coming to the said conclusion, the Labour Court opined that the petitioner should have impleaded the Employment Exchange and negatived the plea of the petitioner that no enquiry was conducted and no notice was issued before terminating his services, the Labour Court said that since the petitioner was not removed from service for the reason of committing misconduct so as to afford an opportunity of submitting explanation and his removal was passed on the letter issued by the Employment Exchange, the action of the respondents cannot be faulted. This reasoning adopted by the Labour Court is wholly erroneous since the petitioner was removed from service and no enquiry was conducted before such removal. Even a formal show cause notice has not been given to the petitioner before removing him from service. This basic principle of natural justice has been overlooked by the Labour Court. Hence, the award of the Labour Court is unsustainable in law. Accordingly the award dated 23-08-1996 of the Labour Court is set aside and the matter is remanded to the Labour Court for considering the matter afresh after affording reasonable opportunity to both the parties in accordance with law. The Labour Court shall dispose of the matter as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order." 13. The Labour Court shall dispose of the matter as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order." 13. From this it is clear that a definite, clear and unequivocal finding was recorded to the effect that the order of termination was passed without conducting enquiry and in utter violation of principles of natural justice. Once, such a finding was recorded, there was no necessity to remand the matter to the Labour Court. The defect pointed out was serious, and incurable at any stage of the proceedings. It is not as if such a domestic enquiry could have been conducted before the Labour Court for the first time, or a show cause notice could have been issued. We therefore agree with the learned counsel for the petitioner that remanding the matter to the Labour Court by the learned single Judge was unnecessary and not required under law. 14. Coming to the merits of the matter, two aspects become relevant. The first is about the observance of principles of natural justice in the context of terminating the petitioner from service; and the second is about the factors that weighed with the respondents in passing the order of termination. 15. The text of the order of termination has already been extracted. It cannot be gain said that, on being placed in a pay scale, the employee becomes a member of service, subject to of course, confirmation. Service rules are so clear that (a) if an employee who is appointed on regular basis is to be imposed any punishment including one of termination, regular departmental enquiry must be conducted after framing charges and (b) if the employee is on probation, the probation can be extended if the performance is not found satisfactory, and failure to declare the probation may bring about cessation. 16. In the instant case, it was not even mentioned that the petitioner was put on probation, or that his probation was extended. On being placed in a scale of pay, he acquired valuable rights and he could have been terminated from service only as a sequel to (a) issuance of a charge sheet; (b) conducting of departmental enquiry; (c) proof of acts of alleged gross misconduct and (d) application of mind by the disciplinary authority, in taking into account the explanation that may be submitted by the employee. Not even a single step in this direction, was taken. 17. Apart from the requirement under the service rules, the necessity arises under the principles of natural justice. If the employer has any information which, according to him, would constitute a justification to dispense with the services of the employee, he must put him on notice. It is only when the explanation is found not satisfactory, that the punishment proportionate to the proved acts of misconduct can be imposed. 18. At the threshold of our judgment, we made a mention of the judgment in Ridge v. Baldwin (supra). That was in deed, a turning point in emphasising the principles of natural justice. Briefly stated, the facts were that, Ridge, a Chief Constable of Brighton was subjected to some criminal proceedings, and though they ended in acquittal, comments were made about his leadership of the force. Taking those observations into account, the Watch Committee decided to dismiss Ridge from service, by taking recourse to Section 191(4) of the Municipal Corporation Act, 1982. Accordingly an order of dismissal was passed. Departmental appeal proved futile and the matter ultimately reached the House of Lords. Lord Reid, laid a solid foundation for the principles of natural justice in the later years to come, through his analytical and incisive approach. The relevant portion reads. "The Appellant's case is that in proceeding under the Act of 1882 the Watch Committee were bound to observe what are commonly called the principles of natural justice. Before attempting to reach any decision they were bound to inform him of the grounds on which they proposed to act and give him a fair opportunity of being heard in his own defence. The authorities on the applicability of the principles of natural justice are in some confusion, and so I find it necessary to examine this matter in some detail. The principle audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of judges of the highest authority. In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the Courts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a Minister ought to do in considering objections to a scheme may be very different from what a Watch Committee ought to do in considering whether to dismiss a Chief Constable." 19. It is too well known that the principles of natural justice as enunciated in that judgment got so firmly embedded in the field of administrative law, that hardly there existed any second opinion about that, since then. The application of the principles by the Indian Courts is also almost with religious spirit. Many a time, the grave consequences that may result in setting at naught, the orders which are found to be violative of principles of natural justice were even ignored. In Olga Tellis vs. Bombay Municipal Corporation (1985) 3 SCC 545 , the Supreme Court took the view that an administrator cannot plead an excuse that even if a show cause notice is issued, the concerned person may not have any plausible explanation. The deviation if at all was only as to whether the order found to have been passed in violation of principles of natural justice can be declared as void and the matter be left at that; or the concerned authority can be permitted to take steps in accordance with law, after the order is set aside. Beyond that, no substantial inroads were made into the principle. 20. The case on hand provides a better example than the one in Ridge v. Baldwin (supra). Beyond that, no substantial inroads were made into the principle. 20. The case on hand provides a better example than the one in Ridge v. Baldwin (supra). At least, in that case there existed a provision which enabled the authority to pass orders straightaway, legality of it, apart. In this case, no such provision exists. It is beyond any pale of doubt that the order of termination was passed without issuance of any show cause notice and without conducting enquiry. The inescapable conclusion is that the order is violative of not only the principles of natural justice but also, of Article 309 of the Constitution of India. On that short ground, it is liable to be set aside. 21. The second aspect is about the decision making process. In this context, let it be assumed that there is no procedural irregularity or infirmity in the matter. The examination is as to whether the 1st respondent passed the order in true exercise of powers, conferred upon him. 22. Being an appointing authority, the 1st respondent is conferred with the power to remove an employee. This becomes clear whether one goes by the concerned service rules or the provisions of the General Clauses Act. However, the action against the employee must be taken on his own accord and satisfaction. It is a different matter that the necessary facts that lead to his conclusion can emanate from various sources. The decision however must be taken by the appointing authority, himself. 23. At no point of time, the 1st respondent felt like terminating the services of the petitioner. After the candidates were selected and appointed to the post of Sweeper, the orders of appointment were forwarded to the employment exchange, obviously for information. The record is not clear as to whether the candidature for appointment to the post of Sweeper was confined to only those candidates who were sponsored through employment exchange or whether it was treated as one of the sources. This fact becomes relevant from the point of view that the petitioner was already holding the post, on daily wage basis. It is also not clear as to whether the case of the petitioner was considered on the assumption that he was sponsored by employment exchange, or on account of his submission of application, more so, already being in service, albeit on daily wages. 24. It is also not clear as to whether the case of the petitioner was considered on the assumption that he was sponsored by employment exchange, or on account of his submission of application, more so, already being in service, albeit on daily wages. 24. On receipt of the list of selected candidates, the District Employment Officer appears to have noted that though the petitioner was not sponsored by him, he has been appointed. If that were to be so, his duty would have ended by putting the record straight. He crossed the barriers of propriety and legality when he required the 1st respondent to remove the petitioner from service just because he did not sponsor his name. Obviously, on being well advised, the 1st respondent did not take the first exhortation from the District Employment Officer, seriously. However, when a second letter with the same tone and tenor dropped in from the District Employment Officer, the 1st respondent scrupulously obeyed it and issued the impugned order. 25. Wherever an authority is conferred with power, he is supposed to exercise the same independently. Surrender of such power to the dictates of others would vitiate the very exercise of it. Two events come into picture. The first is abdication of power by one in whom it is conferred and, the second is the usurpation of the power, by the one who is totally unrelated to the matter. On both counts, the impugned order tests positive. While the 1st respondent has abdicated his power and surrendered it to the District Employment Officer, the latter has usurped the power of the former. There is plethora of authorities on this and it is needless to refer to them. The administrative law recognises such a serious lapse as one of the bases to set at naught, the result of such improper exercise of powers. 26. In the result, W.A. (SR) No. 154603 of 2014 is allowed and the impugned order is set aside. The respondents are directed to reinstate the petitioner forthwith. However, the 2nd respondent need not pay the back wages, in case the petitioner is reinstated into service within six weeks from today. In default, they shall be under obligation to pay 50% of the back wages, in addition to the consequence that may flow from this judgment. The respondents are directed to reinstate the petitioner forthwith. However, the 2nd respondent need not pay the back wages, in case the petitioner is reinstated into service within six weeks from today. In default, they shall be under obligation to pay 50% of the back wages, in addition to the consequence that may flow from this judgment. The petitioner shall be placed in the pay scale by taking into account, the continuity of service but without any past financial obligation. W.A. (SR) No. 6226 of 2014 is dismissed. 27. The miscellaneous petition filed in these appeals shall also stand disposed of. There shall be no order as to costs. Appeal Partly Allowed