IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (C) 4170/1999
Reserved on: August 11, 2011
Decision on: August 30, 2011
S.P. ARYA ..... Petitioner
Through: Mr. R.K. Saini with
Mr. Sitab Ali Chaudhary, Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Kamal Mehta, Advocate for
R-3/LIC of India.
None for R-1/UoI.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGEMENT
30.08.2011
1. The Petitioner challenges an Award dated 16th June 1990 passed by the Central
Government Industrial Tribunal („CGIT‟) in ID No. 112 of 1990 upholding the validity
of the action of Respondent No. 3, Life Insurance Corporation of India („LIC‟), in
removing the Petitioner from service with effect from 11th August 1980.
2. The Petitioner joined the services of the LIC on 4th December 1963 as an Office
Assistant. The service conditions of the Petitioner were covered by the Life Insurance
Corporation of India (Staff) Regulations 1960 („Staff Regulations‟) framed under
Section 49 (2) (b) and (bb) of the Life Insurance Corporation of India Act, 1956 („LIC
Act‟). The Petitioner states that he was an active trade union member and the General
Secretary of the Meerut Division of the Insurance Employees Union. He was also at one
time its President. The Petitioner states that in April 1975 while he was Joint Secretary
of the Central Zone Insurance Employees Federation he brought to the notice of the
Zonal Manager („ZM‟) certain irregularities and abuse of authority by the then
W. P. (C) 4170 of 1999 Page 1 of 9
Divisional Manager („DM‟). The dismissal of the Petitioner after a show cause notice-
cum-charge sheet issued by the DM was revoked in 1977 and the Petitioner was
reinstated with consequential benefits. In June 1977, the Petitioner went on a hunger
strike protesting against the excesses of the management in suspending a number of
other officers and workmen. Subsequently the cases against the workmen were
withdrawn. According to the Petitioner the agitation annoyed the management.
3. In 1978 there were massive floods in north India. On account of the management not
acceding to the demand of the LIC employees for flood advance, a „work to rule‟ was
observed by the workmen and various unions for two days in the first week of
November 1978. The Petitioner states that he played an important role in this agitation
as a trade union activist. The Petitioner states that as a result he was arbitrarily
transferred from Meerut to Mhow in Madhya Pradesh by an order dated 27th November
1978. Seven employees who happened to be the office bearers of the trade union,
excluding the Petitioner, were issued charge sheets on 28th November, 1978 and were
placed under suspension. The Petitioner states that he had gone on casual leave in the
first half of 27th November 1978 and then from 28th November to 2nd December 1978.
He claims to have been undergoing medical treatment on account of which he had to get
his leave extended. Consequently, he was not able to receive the transfer order and
learnt of it from a newspaper report of 13th December 1978 while he was still bedridden.
The Petitioner maintains that he was not officially conveyed the orders of the
management that he should report for duty at Mhow in Madhya Pradesh. He claims to
have been sending the management the medical certificates justifying his seeking leave
on medical grounds.
4. The case of the LIC is that the Petitioner did not comply with the repeated orders
issued by the Divisional Office at Meerut asking him to join duties at the branch office
at Mhow before 30th December, 1978. LIC maintains that the Petitioner came to know
of the transfer order on 27th November 1978 itself but left the office by submitting a
leave application for half a day thus avoiding service of the transfer order on him. He
extended his leave up to 2nd December, 1978. However, he kept visiting the office,
addressing meetings and organising demonstrations. At 4 pm on 29th November 1978
the Petitioner along with an advocate met the DM and pressed him for withdrawal of the
transfer order. When the DM did not agree he was threatened with dire consequences
W. P. (C) 4170 of 1999 Page 2 of 9
including physical injury to him personally and to the members of his family. On the
same day at about 7 pm the Branch Manager (C&S) was sought to be manhandled but
somehow the situation was averted by the arrival of a police mobile van. Thereafter two
communications were sent to the Petitioner’s residential address by the LIC by
registered post. These were returned by the postal authorities undelivered with the
remark “avoided to take”. The orders were also displayed on the notice board of the
Divisional Office on 2nd December, 1978 in accordance with the procedure prescribed in
the Staff Regulations. The DM published the information about the transfer of the
Petitioner in the daily newspaper. By a letter dated 22nd December, 1978 the Petitioner
was directed to join duty at the branch office at Mhow before 30th December, 1978. The
same letter made it clear to the Petitioner that if he failed to join as directed he would
expose himself to disciplinary action. This letter was received by the Petitioner on 24th
December, 1978. However, he did not comply with the order and kept addressing leave
applications to the Divisional Office at Meerut. The DM addressed letters dated 30th
December, 1978 and 25th January 1979 directing the Petitioner to address leave
applications to the DM at Indore where his services had been transferred. Nevertheless,
the Petitioner continued addressing leave applications to the DM at Meerut. Another
registered letter was addressed to the workman on 5th February 1979 asking him to join
duty at Mhow. This letter was received by the Petitioner on 9th February 1979 but he did
not comply with the order. Another letter was issued to them on 21st August 1979 which
was received by the Petitioner on 22nd September, 1979 but he continued to defy the
orders.
5. Since the Petitioner was pleading illness, the DM at Indore constituted a panel of
medical examiners headed by Dr RK Aggarwal of the Medical College Meerut to
examine the Petitioner. By letter dated 15th February 1980 he directed the Petitioner to
appear before the said panel on 17th March 1980. The Petitioner by his letter dated 23rd
March, 1980 claimed that he had received the information only on 19th March, 1980 and
therefore could not appear before the panel. Dr Aggarwal again fixed the date of
medical examination as 11th April 1980 and informed the Petitioner of that date both by
telegram and by a letter dated 31st March 1980. This was received by the Petitioner, but
he challenged the constitution of the panel and refused to appear before it.
W. P. (C) 4170 of 1999 Page 3 of 9
6. The ZM by order dated 26th April 1980 modified the transfer order and asked the
Petitioner to report for duty at Panipat, a place nearer to Meerut. However even this
modified order was not complied with by the Petitioner. By letter dated 15th May 1980
the Petitioner was directed to report for duty at Panipat within seven days. He was
alternatively asked to get in touch with Dr Aggarwal for medical examination if he was
still pleading sickness. The Petitioner did neither. He instead resorted to a hunger strike
and submitted a fitness certificate dated 21st May 1980.
7. A detailed order was passed by the ZM on 21st June 1980 concluding that it was not
reasonably practicable to follow the procedure laid down in Regulation 39 of the Staff
Regulations and to hold an enquiry. He accordingly ordered that a charge sheet-cum-
show cause notice should be issued to the Petitioner proposing the penalty of removal
from service under Regulation 39 (1) (f). The charge sheet stated that the Petitioner had
committed gross breach of discipline, defied office orders, disobeyed lawful orders of
competent authorities, knowingly done things detrimental to the interests of the LIC and
acted in a manner prejudicial to good conduct thereby violating the provisions of
Regulations 21 and 39 (1) of the Staff Regulations. The Petitioner was asked to reply to
the show cause notice within ten days. The Petitioner kept seeking time to reply to the
show cause notice which time was extended periodically. Despite numerous
opportunities the Petitioner did not file any reply. By a letter dated 23rd July, 1980 he
sought time till 16th August, 1980 and asked for a copy of the establishment manual,
copies of the circulars regarding transfers and a copy of the report of Dr Aggarwal.
These documents were not relevant for the Petitioner to file his reply. Moreover since
the Petitioner had not appeared before Dr Aggarwal‟s panel there was no question of
giving him a copy of any report of such panel.
8. By the impugned order dated 11th August 1980 the ZM, after discussing the charges
and the documents in support thereof, imposed on the Petitioner the punishment of
removal from service under Regulation 39 (1) (f) of the Staff Regulations. On 10th
October 1980 the Petitioner preferred an appeal against the said order. The Managing
Director of LIC, after considering the Petitioner‟s appeal, dismissed it by a speaking
order dated 20th June 1981. The Petitioner then preferred a memorial to the Chairman on
8th July, 1981 in which he inter alia prayed for a lenient view to be taken and undertook
“to completely eschew violence of any sort and intimidating tactics even as part of my
W. P. (C) 4170 of 1999 Page 4 of 9
association with trade union activities or otherwise.” In a further letter dated 23rd
September 1991 the Petitioner tendered his apology for the incident and assured to
maintain discipline in the office.”
9. Initially, against the order dated 10th August, 1980 the Petitioner filed a writ petition
in the Allahabad High Court. Against the dismissal of the said writ petition the
Petitioner filed a Special Leave Petition („SLP‟) in the Supreme Court. While
dismissing the SLP the Supreme Court gave liberty to the Petitioner to seek a fresh
reference of the dispute to the Labour Court. It appears that thereafter the Petitioner
invoked the processes under the Industrial Disputes Act, 1947 („ID Act‟) and a reference
was made to the CGIT. The impugned Award dated 16th June 1998 of the CGIT was
challenged in the present petition in which this Court issued rule on 28th January 2000.
Subsequently, the writ petition was permitted to be amended.
10. Mr RK Saini learned counsel for the Petitioner first assailed the transfer order dated
27th November 1978 as being mala fide and issued only with a view to punish the
Petitioner for espousing the just causes of the workmen. This plea was examined by the
CGIT and found to be without substance. The narration of facts shows that the
management was in fact not rigid about the place of transfer. After unsuccessfully trying
to get the Petitioner to comply with the transfer order dated 27th November 1978 the ZM
issued another order on 26th April 1980 asking the Petitioner to report at the Panipat
office of the LIC which was nearer to Meerut. This effectively negates the plea that the
transfer of the Petitioner was actuated by malice. On the other hand, there was sufficient
material on record before the CGIT to show that the Petitioner deliberately avoided
service of the transfer order dated 27th November 1978. Later, he kept sending
representations to the DM at Meerut and defied the orders of transfer. When a medical
board was constituted, the Petitioner failed to appear before it despite the dates being
fixed twice. The Petitioner thus failed to avail of the opportunity to establish his medical
condition, which was the principal reason pleaded by him for not complying with the
transfer order. When later he was transferred to Panipat he continued to remain absent
without justification. He was given one more chance at that stage to get in touch with Dr
Aggarwal for medical examination. This too he did not do. In fact he himself produced a
fitness certificate and yet did not report for duty at Panipat. This court finds no error in
the analysis of the evidence by the CGIT and its conclusions on this aspect. The
W. P. (C) 4170 of 1999 Page 5 of 9
Petitioner has been unable to offer any satisfactory explanation for his inability to report
for duty, during the period of two years after 27th November 1978, either at Mhow or at
Panipat. This brazen defiance of the orders issued to the Petitioner to report for duty was
a gross act of indiscipline. The Petitioner had sufficient opportunity even before the
CGIT to produce medical certificates to justify his staying away from the enquiry. He
appears to have not been successful in proving that case before the CGIT. This Court
obviously cannot re-appreciate the evidence. On this aspect the impugned Award cannot
be said to be perverse or contrary to the evidence on record.
11. Mr Saini fervently urged that a major penalty like removal of an employee from
service could not have been awarded without a proper enquiry. He assailed the order
dated 21st June 1980 passed by the ZM opining that it was not reasonably practicable to
hold an enquiry in terms of Regulation 39 (4) (ii). Relying on the decisions of the
Supreme Court in Union of India v. Tulsi Ram Patel AIR 1985 SC 1416 and Satyavir
Singh v. Union of India AIR 1986 SC 555, it was submitted that the reasons adduced
by the ZM for dispensing with the enquiry were not justified or reasonable. He
submitted that the ZM had cited the very reasons for removal of the Petitioner from
service as the reasons for not holding the enquiry and therefore the requirement of
Regulation 39 (4) was not satisfied. Further, it was incumbent on the ZM to consider
whether in the circumstances where the Petitioner was unable to report for duty on
account of his medical condition, an enquiry could be held even at a later point in time
when he was found medically fit. Mr Kamal Mehta learned counsel for the LIC on the
other hand referred to the order dated 21st June, 1980 and the finding of the CGIT
thereon and submitted that the ZM was justified in his conclusion that it was not
reasonably practicable to hold an enquiry in terms of the procedure under Regulation 39.
12. Regulation 39 of the Staff Regulations reads as under:
“Penalties 39. (1) Without prejudice to the provisions of other
regulations, [any one or more of] the following penalties for
good and sufficient reasons, and as hereinafter provided, be
imposed [by the disciplinary authority specified n Schedule] on
an employee who commits a breach of regulations of the
Corporation, or who displays negligence, inefficiency or
indolence or who knowingly does anything detrimental to the
interest of the Corporation, or conflicting with the instructions orW. P. (C) 4170 of 1999 Page 6 of 9
who commits a breach of discipline, or is guilty of any other act
prejudicial to good conduct –
(a) censure;
(b) withholding of one or more increments either
permanently or for a specified period;
(c) 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;
(d) reduction to a lower service, or post, or to a lower
time-scale, or to a lower stage in a time-scale;
(e) compulsory retirement;
(f) removal from service which shall not be a
disqualification for future employment;
(g) dismissal.
(2) No order imposing on an employee of any of the penalties
specified in clauses (b) to (g) of sub-regulation (1) supra, shall be
passed by the disciplinary authority specified in Schedule
without the charge or charges being communicated to him in
writing and without his having been given a reasonable
opportunity of defending himself against such charge or charges
and of showing cause against the action proposed to be taken
against him.
(3) The disciplinary authority empowered to impose any of the
penalties, (b), (c), (d), (e), (f) or (g) may itself enquire into such
of the charges as are not admitted or if it considers it necessary
so to do, appoint a board of enquiry or any enquiry officer for the
purpose.
(4) Notwithstanding anything contained in sub-regulations (1)
and (2) above-
(i) where a penalty is imposed on an employee on the grounds of
conduct which had led to a conviction on a criminal charge; or
(ii) where the authority concerned is satisfied for reasons to be
recorded in writing, that it is not reasonably practicable to follow
the procedure prescribed in this regulation; or
(iii) where an employee has abandoned his post, the
disciplinary authority may consider the circumstances of the case
and pass such orders .
W. P. (C) 4170 of 1999 Page 7 of 9
Explanations 1: For the purpose of this regulation, an employee
shall be deemed to have abandoned his post if he absents himself
from duty without leave or overstays his leave for a continuous
period of ninety days without any intimation therefor in writing.
2. All communications under this regulation and copies of orders
passed thereunder may be delivered personally to the employee if
he is attending office; otherwise they shall be sent by registered
post to the address noted in the service record. Where such
communications or copies of orders cannot be served on him
personally or by registered post, copies thereof shall be affixed
on the notice board of the office in which the employee is
employed, and on such affixing such communications and orders
shall be deemed to have been properly served on him.”
13. The requirement under Clause (2) of Regulation 39 is that before imposing any
penalty on an employee under sub-clauses (b) to (g) of Clause (1) of Regulation
39,which includes removal from service, the employee should be communicated the
charges in writing and be given a reasonable opportunity of defending himself against
the charges. He has also to be issued a show cause against the action proposed to be
taken against him. This in effect would mean two show cause notices; one prior to the
commencement of the enquiry and the second prior to the imposition of the penalty. The
exception to the above requirement is Clause (4) of Regulation 39, in terms of which the
authority can dispense with the holding of the enquiry provided he records reasons in
writing that it is not reasonably practicable to follow the procedure under Regulation 39
(1) read with Regulation 39 (2).
14. The narration of events indicates that numerous attempts were made by the LIC to
get the Petitioner to comply with its orders of transfer. These attempts for over a period
of eighteen months from 27th November 1978 till 21st June 1980 were unsuccessful. The
Petitioner was refusing to even submit to any medical examination. The general attitude
of the Petitioner was that of defiance. He simply was not prepared to comply with any
order whatsoever that was issued by the LIC. The decision to dispense with the holding
of an enquiry was not taken in a hurry. It is only after waiting for more than eighteen
months and after complete frustration with every attempt at making the Petitioner report
for duty that the ZM concluded that it was not reasonably practicable to hold an enquiry.
While this also constituted the reason for the Petitioner‟s ultimate removal from service,
it certainly was a valid consideration for the decision to dispense with the holding of an
enquiry. Without the participation of the charged employee the holding of an enquiry
W. P. (C) 4170 of 1999 Page 8 of 9
would be a futile exercise. This Court concurs with the CGIT that the order dated 21st
June 1980 passed by the ZM was valid.
15. Mr Saini submitted that the impugned order of dismissal was passed by the ZM
whereas the Petitioner‟s disciplinary authority was the Divisional Manager. The ZM, he
pointed out, was the Appellate Authority („AA‟). It is submitted that with the AA
himself passing the order of removal, the Petitioner was effectively denied one tier of
appeal. Apart from the fact that this plea does not appear to have been urged before the
CGIT, this Court finds that against the order of removal the Petitioner preferred an
appeal to the Managing Director. It cannot therefore be said that the Petitioner was
deprived of any right of appeal. In any event, the Petitioner had a full innings before the
CGIT as well. There is therefore no merit in this submission either.
16. Mr Saini ultimately submitted that the punishment of removal from service was too
harsh in the facts and circumstances of the case. This Court is unable to agree. This is
indeed an extraordinary case where an employee has defied the orders of transfer as well
as the orders to report for duty. He also did not comply with the orders to appear before
a medical board to prove his medical condition. Even after proclaiming that he was
medically fit the Petitioner continued to defy the transfer order. The LIC obviously was
left with no other option but to remove him from service for this gross act of
indiscipline. The punishment awarded by the LIC, which has been upheld by the CGIT,
does not call for interference.
17. For all the aforementioned reasons this Court finds no ground having been made out
for grant of any of the reliefs prayed for by the Petitioner. The writ petition is dismissed,
but in the circumstances, with no order as to costs.
S. MURALIDHAR, J
AUGUST 30, 2011
W. P. (C) 4170 of 1999 Page 9 of 9