ORDER
1. A Junior Assistant, who was working in the Office of the Karnataka Electricity Board (‘Board’ for short), disturbed by the orders made by the employer in terminating his services, without holding an enquiry is before this Court, in a petition filed under Article 226 of the Constitution.
2. Facts may be briefly noticed. They are as under:
The petitioner was working as Junior Assistant in the respondent-Board. While working at Hubli, by an order dated 13-4-1992, he was transferred to Bharamasagar. On a request made, petitioner was re-transferred to Ranebennur, by an order made by the Officer of the Board dated 24-4-1992. The said order was questioned by the petitioner before the Civil Court on various grounds and the petitioner had also sought for an ad interim order of injunction restraining the respondent-authorities not to give effect to the order of transfer. Having failed before the Civil Court in obtaining the relief sought in the application, petitioner had approached this Court in MFA No. 1449 of 1992 and the same came to be rejected by an order made by this Court on 25-9-1992.
3. While proceedings pending before various Civil Courts, the Executive Engineer (Electrical), Karnataka Electricity Board, Haveri, had issued a call notice dated 10-7-1992 directing the petitioner to report for duty in the transferred place, since the employee had not reported for duty, in the transferred place though he was relieved from the post he was holding at Hubli, within the prescribed joining time eligible as per Rules. The call notice had been replied by the employee by bringing to the notice of the employer the pendency of civil proceedings before this Court and also about his ill health. Since the explanation offered was not satisfactory, the employer issued one more recall notice to the employee, directing him to report for duty in the transferred place within 15 days from the date of receipt of the notice. The notice dated 27-11-1992 came to be served on the employee on 30-11-1992 and since petitioner did not report for duty as directed in the recall notice, the disciplinary authority has proceeded to frame the impugned order by exercising his powers under Regulation 9 of Karnataka Electricity Board Employees’ (Classification, Disciplinary Control and Appeal), Regulations, 1987, by dismissing the petitioner from the services of the Board with effect from an anterior date. Thereafter, the appeal to the Appellate Authority as provided under the regulations followed, which came to be rejected by an order dated 6-8-1993. It is these orders which has brought the petitioner before this Court, aggrieved by the same.
4. Respondents’ learned Counsel Smt. Tapsi, besides contesting the petition on merits has raised a preliminary objection to the maintainability of the petition and it is specifically asserted that since the petitioner is a workman, he has to approach the Labour Court, if he is aggrieved by the action of the respondent-Board in terminating his services and in view of the existence of alternate, effective and efficacious remedy, petitioner should not be permitted to invoke discretionary remedy provided under Article 226 of the Constitution. In support of this contention, the learned Counsel strongly relies upon the observations made by this Court in the case of Hariba v Karnataka State Road Transport Corporation . On the merits of the case, learned Counsel would submit that since the petitioner did not report for duty in spite of repeated called notices, respondent authority had no other alternative but to terminate the services of the petitioner. Further, the learned Counsel would submit that in a case of this nature, the question of framing a charge memo and holding an enquiry as required under the Discipline and Control Regulations for the sole reason it would not serve any person. Apart from this, the learned Counsel would contend that if the petitioner raises a dispute before the Labour Court as provided under Industrial Disputes Act (‘Act’ for short), the respondents would be in a position to lead evidence to justify their action in dismissing the petitioner from the services of the Board with retrospective date. Lastly, the learned Counsel submits that in more or less similar cases, this Court has observed – in a case of this nature, no enquiry need be held by the disciplinary authority while imposing a major punishment of dismissal from service. That is how the learned Counsel resists the reliefs sought for by the petitioner and in justification of the impugned order.
5. Sri Raghavendrachar, learned Counsel for the petitioner would contend that since the impugned order has been passed by the respondent-authority without following the prescribed procedure under Discipline and Appeal Regulations of the Board and in violation of principles of natural justice, this Court can entertain the petition, though the petitioner has a remedy before the Labour Court/Industrial Tribunal. In that view of the matter submits, petitioner need not be directed to approach the Labour Court for redressal of his grievances, nearly after five years from the date of entertaining the writ petition by this Court.
6. In Hariba’s case, supra, a workman had approached this Court aggrieved by the order of dismissal by the respondent-Corporation. He had invoked the writ jurisdiction of this Court, after the disciplinary authority had passed an order after holding an enquiry into the allegations made in the charge memo against the workman. In the writ petition, a contention was raised that the enquiry proceedings had not been held in accordance with the procedure prescribed under Discipline and Appeal Regulations and in violation of principles of natural justice. In case of that nature, the Court was pleased to observe that it would be appropriate for the workman to approach the Labour Court for redressal of his grievances as provided under Section 10 of the Act, so that the employer would be in a better position to lead evidence and justify its impugned order.
7. In my view bar of alternative remedy is not an inflexible rule which need to be applied with rigidity in every case which comes before this Court. There are certain exceptions in this regard also. The Supreme Court after referring to its earlier decisions in M/s. Baburam Prakash Chandra Maheshwari v Antarim Zila Parishad, Muzaffarnagar, was pleased to lay down two well recognised exceptions to the doctrine of exhaustion of statutory remedies. In the first place, it is stated that where the proceedings are taken before the Tribunal under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent, without a party being obliged to wait until those proceedings run their full course. Secondly, in a case where the impugned order has been made in utter violation of the principles of natural justice.
8. In A.V. Venkateswaran, Collector of Customs, Bombay v Ramchand Sobhraj Wadhwani and Another, the Apex Court was pleased to observe that complete lack of jurisdiction in any officer or authority to take the impugned action would be a good ground not to insist on the exhaustion of statutory remedies. It was further pointed out that this exception along with the one where an order has been passed in violation of principles of natural justice cannot be regarded as exhaustive of the exceptions, and even beyond them a discretion vests with the High Court to entertain a petition notwithstanding the existence of alternative remedy.
9. In Dr. Smt. Kuntesh Gupta v Management of Hindu Kanya Mahavidyalaya, Sitapur, Uttar Pradesh and Others, the Supreme Court was pleased to observe that an alternative remedy is not an absolute bar to the maintainability of a writ petition and where an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of alternative remedy.
10. In my view, in view of this well settled legal position, since the decision of the disciplinary authority affects the legal right of an individual which is arrived at by a procedure which offends the principles of natural justice, this Court can entertain this petition notwithstanding the existence of an alternative remedy.
11. Now coming to the merits of the case, the disciplinary authority has imposed a major penalty of dismissal from service on the petitioner without holding any enquiry whatsoever as required and prescribed under the Board’s regulations and in total violation of principles of natural justice. For arriving at the conclusion to remove petitioner’s services from the Board, the disciplinary authority in his order dated 16-4-1993 has observed as under:
“Sri S.R, Lalmiya, Junior Assistant, O&M Sub-Division II, KEB, Hubli, who was transferred to Ranebennur Sub-Division (Haveri Division) is dismissed from services with effect from 25-4-1992”.
12. A reading of the conclusion arrived at by the disciplinary authority would demonstrate that the impugned order and the punishment has been imposed on the delinquent by the disciplinary authority is for the reason that the employee did not report for duty in the transferred place in spite of long lapse of time and repeated call notices and therefore the employee has no interest in continuing in the Board’s service. Secondly, the non-reporting for duty and approaching the Courts questioning the orders of the transfers would amount to misconduct. In my opinion, whatever may be the reasons for taking such a drastic action against the Board’s employee, the disciplinary authority before imposing any major penalty should have held an enquiry by affording a reasonable opportunity of making his defence. The right to be heard has been accepted by all civilised countries as part of the due process of law where questions affecting the rights, privileges or claims of persons are considered or adjudicated. The principle that no man should be condemned unheard is fundamental to justice and is a basic concept of natural justice. In Charan Lal Sahu v Union of India, the pervasiveness of this rule was indicated by stating “No man or no man’s right should be affected without an opportunity to ventilate his views. We are conscious that justice is a psychological yearning in which men seek acceptance of their view point by having an opportunity of vindication of their view point before the forum or the authority enjoined or obliged to take a decision affecting their right”.
13. Having noticed the importance of affording an opportunity of hearing in matters falling within the range of some misconduct alleged against a person, let me advert to the issues canvassed by the learned Counsels for the parties. This is a case where a permanent employee has been removed from service summarily without issuing a notice and without holding any enquiry whatsoever whether this can be done, whether the action of the respondents violates the principles of natural justice is the prime issue to be considered in this case. It is not in dispute nor can it be disputed that the disciplinary authority has imposed the extreme penalty of dismissal from service without notice and without holding any enquiry and without following the rules of natural justice on the ground as contended by learned Counsel for respondents that issuing notice of enquiry on the employee would not have served any purpose since he was avoiding the service of recall notices also. In support of that contention reliance is strongly placed on the observations made by this Court in A.M. Eshwarachar v Executive Engineer (Electrical), Karnataka Electricity Board and Others. In the said decision, a contention had been raised by the learned Counsel for the petitioner that the respondent-Board could not have terminated the services of a permanent employee without holding any enquiry. This Court after noticing the fact situation was pleased to observe “This is one of the grievances made in the present petition, namely the technical plea that an order of dismissal could not have been passed in absentia. In law this submission is quite untenable, insofar as if the errant employee virtually disappears and if after all reasonable steps have been taken, he is not traceable. It would be absurd to insist on the officers of the Board, going through the empty exercise of holding an enquiry against a person, who is virtually non-existent at that enquiry. The procedure adopted by the Board in this circumstance was perfectly justified”. A reading of the above passage from the judgment would clearly indicate that the petitioner/delinquent employee was not traceable and virtually had disappeared from the scene. In such a situation, Court must have felt that no useful purpose would be served if a show-cause notice or a charge memo is issued against a disappeared employee. Therefore, Court was of the view that the domestic enquiry proceedings and the punishment is not vitiated for non-observance of principles of natural justice and not holding any enquiry before an order of termination was passed against the Board’s employee. In my view, the decision of this Court would not assist the respondents for more than one reason. Firstly, petitioner was very much available and he had not disappeared from the scene and secondly, merely because petitioner was avoiding the recall notice, it does not follow that the rules of natural justice need not be followed. Even in a case where facts had been admitted, the Supreme Court in the case of S.L. Kapoor v Jagmohan and Others, was pleased to observe:
“The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced.
Whereon the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed”.
14. If the principles laid down by the Supreme Court has been followed in this case, there cannot be any doubt that even though the petitioner was not answering the recall notices, enquiry has to be conducted by the respondents. In the instant case, petitioner’s services have been terminated by the disciplinary authority on the sole ground that petitioner did not report for duty within the time prescribed in the rules and in spite of repeated recall notice. In fact to one such notice, petitioner had replied by stating that he is awaiting results of the appeal filed by him in this Court against the order of the Civil Court, which refused to grant an ad interim injunction restraining the respondents to give effect to the order of transfer, posting the petitioner to Ranebennur Sub-Division. Therefore, this is not one of those cases where the employee had disappeared from the scene and the respondent-authorities could not have served the show-cause notice or the charge-sheet on the employee of the Board making it clear, their intention to hold domestic enquiry for the alleged lapses and misconduct on the part of the delinquent. In my view, if an employee does not go and report for duty at the directions of the employer, it may amount to misconduct, for the reason, it would he disobedience of lawful orders of the appointing authority. For imposition of any punishment for the acts of omissions and commissions which may amount to misconduct, the employer is obliged to hold an enquiry, by affording a reasonable opportunity to the accused person for offering his defence. In my view, the employer without even holding a summary enquiry against an errant employee cannot come to a conclusion that the employee has disobeyed the lawful orders of the employer and therefore, his services are required to be terminated. If that is allowed to happen, then, no employee can survive in an organisation. In view of that, the orders made by the disciplinary authority and confirmed by the Appellate Authority requires to be set aside by this Court.
15. In the result, petition is allowed. Rule made absolute. The impugned order dated 10-4-1993 passed by the disciplinary authority and confirmed by the Appellate Authority by his order dated 6-9-1993 are set aside. Liberty is reserved to the respondent-Board to proceed with the matter, if they so desire from the stage the defects are noticed by this Court.
16. Since the orders framed by the disciplinary authority are set aside, a direction requires to be issued to the respondent-Board to reinstate the petitioner into service and proceed with the matter, if they desire, either by placing the petitioner under suspension or continuing him in service. The backwages and other service benefits from the date of dismissal till the date of reinstatement into service will depend on the final outcome of the inquiry. If the respondent-Board intends to hold any enquiry against the petitioner, they shall do so within three months from the date of receipt of a copy of this Court’s order and complete such proceedings within six months thereafter.
17. With these observations and direction, petition is disposed off. No order as to costs.