PETITIONER: HINDUSTAN PAPER CORPN. Vs. RESPONDENT: PURNENDU CHAKROBARTY & ORS. DATE OF JUDGMENT: 30/10/1996 BENCH: B.P. JEEVAN REDDY, K. VENKATASWAMI ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
VENKATASWAMI. J.
Leave granted.
Heard learned counsel for the parties at length.
The appellant-Corporation on January 5, 1989 passed an
order invoking Rule 23(vi) E of the Hindustan Paper
Corporation Conduct Discipline and Appeal Rules (hereinafter
called “the Rules”). That order was to the effect that the
first respondent herein must be deemed to have lost his Lien
on his appointment with the Corporation/Mill.
The first respondent has successfully challenged the
said order of the appellant before the High Court of
Guwahati and thus. the appellant is before us.
The first respondent entered the services of the
appellant as a Fire Fighting Officer and was eventually
promoted on 28.8.1985 as Assistant Manager (Security & Fire-
fighting). On may 26. 1988 the body of one shanti Rani
Chakrabarty, sister-in-law of the first respondent. was
found in the house of the first respondent. On 27.5.1988.
the first respondent applied casual leave. On the next day.
an FIR was lodged aginst the first respondent and others
under Section 302/201 read with Section 34 IPC by Karim Ganj
Police. On 3.6.1988. the first respondent after the expiry
of casual leave sent an application for Earned Leave for 11
days giving the reason ‘personal affair’ and mentioning his
leave address as U/S PWD Dispur, Gauhati. On 6.6.1988 the
Senior Manager of the appellant received a message from the
Police to direct the first respondent to report to the
police station. On 7.6.1988 the Senior Manager informed the
police that the first respondent has sent an application for
Earned Leave. Again the police requested to intimate the
whereabouts of the first respondent. On l4,6.1988 the
appellant informed the police that the whereabouts of the
first respondent not known. However. the permanent address
of the first respondent as available in the official record.
was supplied to the police. Thereafter. the appellant sent
series of leave applications dated 21.6.88. 14.7.88.
l3.9.88. 28.8.88. 13.9.88. 29.9.88. 16.10.88 and 5.11.88
without minding to find out whether previous applications
for leave have been sanctioned or not. These leave
applications initially did not disclose any reason and
subsequently it mentioned `on medical grounds’ without
enclosing any medical certificate and without disclosing his
leave address. The appellant-Corportion again received on
28.11.1988 a communication from the police that the first
respondent was wanted as an accused in a murder case. ln
view of that the Appellant-Corporation by a communication
dated 30.1l.1988 informed the first respondent that his
leave on medical grounds was not sanctioned as his
applications were not supported by medical certificates and
that he was liable to be treated as an unauthorised
absentee. He was. therefore. called upon to submit his
explanation, if any within 15 days of receipt of the letter.
He was also incidentally informed that he was required by
the Superintendent of Police, Karim Ganj in connection with
the murder. In response to the above communication from the
appellant-Corporation. the first respondent submitted his
reply baldly stating that he was suffering from chest pain
for quite some time and that he had consulted specialist
outside HPC for personal reasons and due medical cercificate
Will be produced at the time of joining. He also informed
the Corporation that he knew that he was required to appear
before the Police and that he would report to the police as
per rules. It is under these circumstances that the
appellant-Corporation passed the order dated 5.1.l989
invoking Rule 23 (vi) E the Rules.
The appellant aggrieved by the said order moved the
Guwahati High Court by filing Civil Rule No. 288 of 1992
under Article 226 of the Constitution of India. The learned
Single Judge as well as the Division Bench. on appeal by the
appellant-Corporation, agreeing with the arguments advanced
on behalf of the first respondent set aside the order of the
appellant-Corporation dated 5.1.1989 and directed re-
instatement of first respondent with 50% back wages.
When the Special Leave Petition came up for admission
this Court while issuing notice passed an order in the
following terms:
“In the light of the sub-clause (E)
of Clasue VI of Rule 23. the
validity of which is stated not to
have so far been pronounced upon by
this Court in the context of a
Public Sector Corporation. a notice
shall be issued to the
respondents.”
Before actually going into the validity of the said
Rule it would he beneficial to appreciate the facts little
more critically, which will be helpful to come to the
correct conclusion.
The first respondent is not a workman to avail or
invoke the provisions of the Industrial Disputes Act 1947.
He is governed by the Rules framed by the Corporation in
this regard. We have already noted that in view of the
pendency of criminal case registered against him, the first
respondent without disclosing that fact has been sending
applications for leave commencing from 21.6.1988 ending with
5.11.1988. Copies of the application for leave are tiled in
the paper book along With copies of medical certificates
produced by the first respondent. not before the appellant-
corporation on time. but long subsequently. Initially, as
noticed earlier. the applications for leave did not disclose
any reason. Later on, in the application for leave dated
13.8.1988, the reason given was suffering from heart
disease’. Again in the application dated 13.9.1988. the
reason given was heart disease since long. The same reason
was given in the applications dated 29.9.1988 16.10.1988
and 5.11.1988 It is very relevant to note that according to
the medical certificates, copies of which are now produced
which are dated 4.5.1988 onwards ending with 21.01.89.
nowhere it was stated that he was suffering from heart
disease. Further. nature of the sickness was mentioned in
the certificate and in spite of that the same was not
disclosed correctly in the leave applications. It is also
clear that those certificates were available and inspite of
that not enclosed alongwith the leave applications. From
this one has to draw the inference that either the medical
certificates are not genuine in the sense that they were not
obtained then and there or the first respondent deliberately
did not enclose them along with the leave applications. Even
today no proper explanation is forthcoming from the first
respondent on this aspect. With this background we shall now
set out the relevant rule:-
Rule 23, PENALTIES
The following penalties may be imposed on an employee.
as hereinafter provided. for misconduct committed by
him or for any other good and sufficient reasons.
Minor Penalties
a) censure:
b) withholding of increment(s) of pay with or without
cumulative effect:
c) withholding of promotion;
d) recovery from pay or such other amount as may be due
to him of the whole or part of any pecuniary loss
caused to the Corporation by negligence or breach of
orders.
Major Penalties
e) reduction to a lower grade or post. or to a lower
stage in a time scale:
f) removal from service which shall not be a
disqualification for future employment ;
g) dismissal;
Explanation: The following shall not amount to a
penalty within the meaning of this rule.
i) withholding of increment of an employee on account
of his work being found unsatisfactory or not being of
the required standard. or for failure to pass a
prescribed test of examination:
ii) stoppage of an employee at the efficiency bar in a
time scale, on the ground of his unfitness to cross the
bar:
iii) non-promotion, whether in an officiating capacity
or otherwise , of an employee to a higher post for
which he may be eligible for higher post for which he
may be eligible for consideration but for which he is
found unsuitable after consideration of his case;
iv) reversion to lower grade or post, of an employee
officiating in a higher grade or post, on the ground
that he is considered, after trial, to be unsuitable
for such higher grade or post, or on administrative
grounds unconnected with his conduct;
v) reversion to his previous grade or post, of an
employee appointed on probation to another grade, or
post during of at the end of the period of probation,
in accordance with the terms of his appointment;
vi) TERMINATION OF SERVICE
A) of an employee appointed on probation. during or
at the end of the period of probation. in accordance
with the terms of his appointment:
B) of an employee appointed in a temporary capacity
otherwise than under a contract or agreement. on the
expiration of the period for which he was appointed. Or
earlier in accordance with the terms of his
appointment:
C) of an employee appointed under a contract or
agreement. in accordance with the terms of such
contract or agreement:
D) of any employee on reduction of establishment; and
E) Loss of lien on his appointment by an employee:
1. Proceeding on leave without prior sanction and
remaining unauthorisedly absent for more than 8
consecutive days.
and/or
2. Over-staying his sanctioned leave beyond the period
originally granted or subsequently extended formore
than 8 consecutive days.”
In the light of the above Rule, in particular Rule 23
(vi) E, the appellant-Corporation factually by communication
dated 30.11.1988 informed the first respondent that the
leave applications have not been supported by medical
certificates; that period must be treated as unauthorised
absent’ and if he has got aything to say on that aspect he
has to send the reply within 15 days from the date of
receipt of that letter. His reply was that he was suffering
from chest pain for quite some time and the medical
certificates will be produced at the time of joining. To say
the least, that should not be the attitude of an employee.
First of all. he was expected to take the leave ordinarily
with prior sanction and extend the same after the earlier
one was sanctioned by the appropriate authority. Right from
the beginning his applications were not only not in proper
form but were not supported by any medical certificates to
justify the claim of the first respondent. At least the
first respondent should have replied properly by enclosing
the medical certificates or should have come forward with a
true case. He did neither. lt is in that context that the
appellant-corporation invoked the said Rule. namely. Rule
23(vi) E.
Mr. P P Rao. senior counsel appearing for the
appellant-Corporation fairly in our view rightly conceded
that the Rule. namely. Rule 23(vi) E has to be construed by
reading into it the Principles of natural justice. Otherwise
by reading it literally, it would amount to arbitrary and
unreasonable vesting of authority and liable to be struck
down. According to the learned counsel. if only the first
respondent had properly responded to the show cause notice
the Corporation might not have taken the extreme step of
cutting off the appointment of the first respondent with the
Corporation.
We consider that in view of this concession made by the
learned counsel on behalf of the appellant Corporation that
the said Rule must be read and given effect to. subject to
the compliance of the principles of natural Justice. It
cannot be said that the rule is arbitrary or unreasonable
or ultra vires Article 14 of the Constitution. In other
words, before taking action under the said clause an
opportunity should be given to the employee to show cause
against the action proposed and if the cause shown by the
employee is good and acceptable, it follows that no action
in terms of the said clause will be taken. Understood in
this sense. it can not be said that the said clause is
either unreasonable or voidable of Article 16 of the
constitution.
Mr. Sanjay Parikh. Learned counsel appearing for the
first respondent however. vehemently contended that in view
of the recent judgment of this Court in D.K. Yadav vs. JMA
ndustries Ltd (1993) 3 SCC 259 which has considered number
of earlier judgments of this Court including Hindustan Steel
Ltd. vs. Presiding Officer, Labour Court (1976) 4 SCC 222:
L. Robert D` Souza vs. Executive Engineer. Southern Railway
(1982) 1 SCC 645: Delhi Transport Corpn. V. D.T.C. Mazdoor
Congress 1991 supp (1) SCC 600, the judgment and order of
the High Court cannot be assailed.. According to the Learned
counsel. before passing the impugned order against the first
respondent, the appellant-Corporation should have conducted
a full fledged order. He also invited our attention to the
reasonings given by the Division Bench of the High Court.
The Devision Bench of the High Court by confirming the
order of the learned single Judge appears to have fell into
an error in correct appreciating the scope of Rule 23.
According to the learned Judges of the Division Bench. the
loss of lien is a major penalty and therefore. attracts Rule
25 which provides that no major penalty can be imposed
without holding an inquiry under the Rules. This view of the
Division Bench led them to pass the following observation.
“Admittedly. no inquiry has been
held and the alternative submission
of substantial compliance of the
Rules as already discussed above,
has been held to be illusory. It
cannot therefore be said in absence
of any inquiry whatsoever that the
deliquent writ petitioner
deliberately abstained from duty on
a feigned or pretended ground of
illness. It was a matter of
inquiry..
We have extracted Rule 23 in full. The explanation to
the Rule specifically states that certain items enumerated
thereunder shall not be treated as a penalty at all within
the meaning of Rule 23. For our case the relevant sub
clause is (vi) E which says that proceeding on leave without
Prior sanction and remaining unauthorisedly absent for more
than 8 consecutive days; and/or over-staying his sanctioned
leave beyond the period originally granted or subsequently
extended for more than 8 consecutive days would result in
loss of lien of the appointment of the employee. In this
case we have seen that the first respondent had proceeded on
leave without prior sanction and remained unauthorisedly
absent for more than 6 months consecutively which obliged
the appellant-Corporation to issue communication to the
first respondent calling upon him to explain. Unfortunately.
the first respondent. for reasons best known to him. has not
availed himself of the opportunity as seen earlier but
replied in a half-hearted way which resulted in the impugned
order. Therefore. under the circumstances it cannot be said
that the principles of natural justice have not been
complied with or the circumstances require any enquiry as
contemplated under Rule 25. In the case cited by the learned
counsel for the first respondent. this Court has held “that
the law must. therefore, be now taken to be well-settled
that procedure prescribed tor depriving a person of
livelihood must meet the challenge of Article 14 and such
law would be liable to be tested on the anvil of Article 14
and the procedure prescribed by a statute on statutory rule
or rules or orders affecting the civil rights or result in
civil consequences would have to answer the requirement of
Article 14. So it must be right, just and fair and not
arbitrary, fianciful or oppressive. There can be no
distinction between a quasi-judicial function and an
administrative function for the purpose of principles of
nature justice. The aim of both administrative inquiry as
well as the quasi-judicial inquiry is to arrive at a just
decision and if a rule of natural justice is calculated to
secure justice to put it negatively, to prevent miscarriage
of justice. it is difficult to see why it should be
applicable only to quasi-judicial inquiry and not to
administrative inquiry. It must logically apply to both.”
On a consideration of the entire facts, we are of the
view that the test laid down by this Court, as extracted
above has been satisfied by the appellant-Corporation and
therefore when viewed from the point of Rule 23(vi) E, there
was no good reason for the High Court to interfere with the
impugned order of the appellant-Corporation dated 5.1.1989.
While ordering notice, this court has directed the
appellant to pay 1/5th of the arrears to the first
respondent within 3 months. lt is stated that order has
been complied with. It is also brought to our notice that
the first respondent is due to rctire shortly within few
months. Taking the totality of the facts and circumstances
of the case and having due regard to the services rendered
by the first respondent. the ends of justice would be met if
the appellant-Corporation is directed to give all pensionary
and terminal, benefits to the first respondent treating the
case to the first respondent as compulsory retirement on and
from 5.1.1989. We direct accordingly . the amount already
paid pursuant to the interim direction of this Court is not
liable to be refunded by the first respondent and not to be
adjusted against the terminal benefits payments. if any.
The appeal is accordingly disposed of. However. there
will be no order as to costs.