{"id":218869,"date":"2011-08-30T00:00:00","date_gmt":"2011-08-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-p-arya-vs-union-of-india-ors-on-30-august-2011"},"modified":"2015-05-18T11:49:51","modified_gmt":"2015-05-18T06:19:51","slug":"s-p-arya-vs-union-of-india-ors-on-30-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-p-arya-vs-union-of-india-ors-on-30-august-2011","title":{"rendered":"S.P. Arya vs Union Of India & Ors. on 30 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
S.P. Arya vs Union Of India & Ors. on 30 August, 2011<\/div>\n
Author: S. Muralidhar<\/div>\n
           IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n                                        W. P. (C) 4170\/1999\n\n                                                         Reserved on: August 11, 2011\n                                                         Decision on: August 30, 2011\n\n        S.P. ARYA                                                         ..... Petitioner\n                                  Through: Mr. R.K. Saini with\n                                           Mr. Sitab Ali Chaudhary, Advocates.\n\n                         versus\n\n\n        UNION OF INDIA & ORS.                                .....Respondents\n                         Through: Mr. Kamal Mehta, Advocate for\n                                  R-3\/LIC of India.\n                                  None for R-1\/UoI.\n\n         CORAM: JUSTICE S. MURALIDHAR\n\n          1.    Whether Reporters of local papers may be\n                allowed to see the judgment?                            No\n          2.    To be referred to the Reporter or not?                  Yes\n          3.    Whether the judgment should be reported in Digest?      Yes\n\n                                   JUDGEMENT\n<\/pre>\n
                                    30.08.2011<\/p>\n
1. The Petitioner challenges an Award dated 16th June 1990 passed by the Central
\nGovernment Industrial Tribunal (\u201eCGIT\u201f) in ID No. 112 of 1990 upholding the validity
\nof the action of Respondent No. 3, Life Insurance Corporation of India (\u201eLIC\u201f), in
\nremoving the Petitioner from service with effect from 11th August 1980.\n<\/p>\n
2. The Petitioner joined the services of the LIC on 4th December 1963 as an Office
\nAssistant. The service conditions of the Petitioner were covered by the Life Insurance
\nCorporation of India (Staff) Regulations 1960 (\u201eStaff Regulations\u201f) framed under
\nSection 49 (2) (b) and (bb) of the Life Insurance Corporation of India Act, 1956 (\u201eLIC
\nAct\u201f). The Petitioner states that he was an active trade union member and the General
\nSecretary of the Meerut Division of the Insurance Employees Union. He was also at one
\ntime its President. The Petitioner states that in April 1975 while he was Joint Secretary
\nof the Central Zone Insurance Employees Federation he brought to the notice of the
\nZonal Manager (\u201eZM\u201f) certain irregularities and abuse of authority by the then<\/p>\n
W. P. (C) 4170 of 1999                                                        Page 1 of 9<\/span>
\n Divisional Manager (\u201eDM\u201f). The dismissal of the Petitioner after a show cause notice-
\ncum-charge sheet issued by the DM was revoked in 1977 and the Petitioner was
\nreinstated with consequential benefits. In June 1977, the Petitioner went on a hunger
\nstrike protesting against the excesses of the management in suspending a number of
\nother officers and workmen. Subsequently the cases against the workmen were
\nwithdrawn. According to the Petitioner the agitation annoyed the management.\n<\/p>\n
3. In 1978 there were massive floods in north India. On account of the management not
\nacceding to the demand of the LIC employees for flood advance, a \u201ework to rule\u201f was
\nobserved by the workmen and various unions for two days in the first week of
\nNovember 1978. The Petitioner states that he played an important role in this agitation
\nas a trade union activist. The Petitioner states that as a result he was arbitrarily
\ntransferred from Meerut to Mhow in Madhya Pradesh by an order dated 27th November
\n1978. Seven employees who happened to be the office bearers of the trade union,
\nexcluding the Petitioner, were issued charge sheets on 28th November, 1978 and were
\nplaced under suspension. The Petitioner states that he had gone on casual leave in the
\nfirst half of 27th November 1978 and then from 28th November to 2nd December 1978.
\nHe claims to have been undergoing medical treatment on account of which he had to get
\nhis leave extended. Consequently, he was not able to receive the transfer order and
\nlearnt of it from a newspaper report of 13th December 1978 while he was still bedridden.
\nThe Petitioner maintains that he was not officially conveyed the orders of the
\nmanagement that he should report for duty at Mhow in Madhya Pradesh. He claims to
\nhave been sending the management the medical certificates justifying his seeking leave
\non medical grounds.\n<\/p>\n
4. The case of the LIC is that the Petitioner did not comply with the repeated orders
\nissued by the Divisional Office at Meerut asking him to join duties at the branch office
\nat Mhow before 30th December, 1978. LIC maintains that the Petitioner came to know
\nof the transfer order on 27th November 1978 itself but left the office by submitting a
\nleave application for half a day thus avoiding service of the transfer order on him. He
\nextended his leave up to 2nd December, 1978. However, he kept visiting the office,
\naddressing meetings and organising demonstrations. At 4 pm on 29th November 1978
\nthe Petitioner along with an advocate met the DM and pressed him for withdrawal of the
\ntransfer order. When the DM did not agree he was threatened with dire consequences<\/p>\n
W. P. (C) 4170 of 1999                                                    Page 2 of 9<\/span>
\n including physical injury to him personally and to the members of his family. On the
\nsame day at about 7 pm the Branch Manager (C&S) was sought to be manhandled but
\nsomehow the situation was averted by the arrival of a police mobile van. Thereafter two
\ncommunications were sent to the Petitioner’s residential address by the LIC by
\nregistered post. These were returned by the postal authorities undelivered with the
\nremark “avoided to take”. The orders were also displayed on the notice board of the
\nDivisional Office on 2nd December, 1978 in accordance with the procedure prescribed in
\nthe Staff Regulations. The DM published the information about the transfer of the
\nPetitioner in the daily newspaper. By a letter dated 22nd December, 1978 the Petitioner
\nwas directed to join duty at the branch office at Mhow before 30th December, 1978. The
\nsame letter made it clear to the Petitioner that if he failed to join as directed he would
\nexpose himself to disciplinary action. This letter was received by the Petitioner on 24th
\nDecember, 1978. However, he did not comply with the order and kept addressing leave
\napplications to the Divisional Office at Meerut. The DM addressed letters dated 30th
\nDecember, 1978 and 25th January 1979 directing the Petitioner to address leave
\napplications to the DM at Indore where his services had been transferred. Nevertheless,
\nthe Petitioner continued addressing leave applications to the DM at Meerut. Another
\nregistered letter was addressed to the workman on 5th February 1979 asking him to join
\nduty at Mhow. This letter was received by the Petitioner on 9th February 1979 but he did
\nnot comply with the order. Another letter was issued to them on 21st August 1979 which
\nwas received by the Petitioner on 22nd September, 1979 but he continued to defy the
\norders.\n<\/p>\n
5. Since the Petitioner was pleading illness, the DM at Indore constituted a panel of
\nmedical examiners headed by Dr RK Aggarwal of the Medical College Meerut to
\nexamine the Petitioner. By letter dated 15th February 1980 he directed the Petitioner to
\nappear before the said panel on 17th March 1980. The Petitioner by his letter dated 23rd
\nMarch, 1980 claimed that he had received the information only on 19th March, 1980 and
\ntherefore could not appear before the panel. Dr Aggarwal again fixed the date of
\nmedical examination as 11th April 1980 and informed the Petitioner of that date both by
\ntelegram and by a letter dated 31st March 1980. This was received by the Petitioner, but
\nhe challenged the constitution of the panel and refused to appear before it.\n<\/p>\n
W. P. (C) 4170 of 1999                                                         Page 3 of 9<\/span><\/p>\n
 6. The ZM by order dated 26th April 1980 modified the transfer order and asked the
\nPetitioner to report for duty at Panipat, a place nearer to Meerut. However even this
\nmodified order was not complied with by the Petitioner. By letter dated 15th May 1980
\nthe Petitioner was directed to report for duty at Panipat within seven days. He was
\nalternatively asked to get in touch with Dr Aggarwal for medical examination if he was
\nstill pleading sickness. The Petitioner did neither. He instead resorted to a hunger strike
\nand submitted a fitness certificate dated 21st May 1980.\n<\/p>\n
7. A detailed order was passed by the ZM on 21st June 1980 concluding that it was not
\nreasonably practicable to follow the procedure laid down in Regulation 39 of the Staff
\nRegulations and to hold an enquiry. He accordingly ordered that a charge sheet-cum-
\nshow cause notice should be issued to the Petitioner proposing the penalty of removal
\nfrom service under Regulation 39 (1) (f). The charge sheet stated that the Petitioner had
\ncommitted gross breach of discipline, defied office orders, disobeyed lawful orders of
\ncompetent authorities, knowingly done things detrimental to the interests of the LIC and
\nacted in a manner prejudicial to good conduct thereby violating the provisions of
\nRegulations 21 and 39 (1) of the Staff Regulations. The Petitioner was asked to reply to
\nthe show cause notice within ten days. The Petitioner kept seeking time to reply to the
\nshow cause notice which time was extended periodically. Despite numerous
\nopportunities the Petitioner did not file any reply. By a letter dated 23rd July, 1980 he
\nsought time till 16th August, 1980 and asked for a copy of the establishment manual,
\ncopies of the circulars regarding transfers and a copy of the report of Dr Aggarwal.
\nThese documents were not relevant for the Petitioner to file his reply. Moreover since
\nthe Petitioner had not appeared before Dr Aggarwal\u201fs panel there was no question of
\ngiving him a copy of any report of such panel.\n<\/p>\n
8. By the impugned order dated 11th August 1980 the ZM, after discussing the charges
\nand the documents in support thereof, imposed on the Petitioner the punishment of
\nremoval from service under Regulation 39 (1) (f) of the Staff Regulations. On 10th
\nOctober 1980 the Petitioner preferred an appeal against the said order. The Managing
\nDirector of LIC, after considering the Petitioner\u201fs appeal, dismissed it by a speaking
\norder dated 20th June 1981. The Petitioner then preferred a memorial to the Chairman on
\n8th July, 1981 in which he inter alia prayed for a lenient view to be taken and undertook
\n“to completely eschew violence of any sort and intimidating tactics even as part of my<\/p>\n
W. P. (C) 4170 of 1999                                                      Page 4 of 9<\/span>
\n association with trade union activities or otherwise.” In a further letter dated 23rd
\nSeptember 1991 the Petitioner tendered his apology for the incident and assured to
\nmaintain discipline in the office.”\n<\/p>\n
9. Initially, against the order dated 10th August, 1980 the Petitioner filed a writ petition
\nin the Allahabad High Court. Against the dismissal of the said writ petition the
\nPetitioner filed a Special Leave Petition (\u201eSLP\u201f) in the Supreme Court. While
\ndismissing the SLP the Supreme Court gave liberty to the Petitioner to seek a fresh
\nreference of the dispute to the Labour Court. It appears that thereafter the Petitioner
\ninvoked the processes under the Industrial Disputes Act, 1947 (\u201eID Act\u201f) and a reference
\nwas made to the CGIT. The impugned Award dated 16th June 1998 of the CGIT was
\nchallenged in the present petition in which this Court issued rule on 28th January 2000.
\nSubsequently, the writ petition was permitted to be amended.\n<\/p>\n
10. Mr RK Saini learned counsel for the Petitioner first assailed the transfer order dated
\n27th November 1978 as being mala fide and issued only with a view to punish the
\nPetitioner for espousing the just causes of the workmen. This plea was examined by the
\nCGIT and found to be without substance. The narration of facts shows that the
\nmanagement was in fact not rigid about the place of transfer. After unsuccessfully trying
\nto get the Petitioner to comply with the transfer order dated 27th November 1978 the ZM
\nissued another order on 26th April 1980 asking the Petitioner to report at the Panipat
\noffice of the LIC which was nearer to Meerut. This effectively negates the plea that the
\ntransfer of the Petitioner was actuated by malice. On the other hand, there was sufficient
\nmaterial on record before the CGIT to show that the Petitioner deliberately avoided
\nservice of the transfer order dated 27th November 1978. Later, he kept sending
\nrepresentations to the DM at Meerut and defied the orders of transfer. When a medical
\nboard was constituted, the Petitioner failed to appear before it despite the dates being
\nfixed twice. The Petitioner thus failed to avail of the opportunity to establish his medical
\ncondition, which was the principal reason pleaded by him for not complying with the
\ntransfer order. When later he was transferred to Panipat he continued to remain absent
\nwithout justification. He was given one more chance at that stage to get in touch with Dr
\nAggarwal for medical examination. This too he did not do. In fact he himself produced a
\nfitness certificate and yet did not report for duty at Panipat. This court finds no error in
\nthe analysis of the evidence by the CGIT and its conclusions on this aspect. The<\/p>\n
W. P. (C) 4170 of 1999                                                       Page 5 of 9<\/span>
\n Petitioner has been unable to offer any satisfactory explanation for his inability to report
\nfor duty, during the period of two years after 27th November 1978, either at Mhow or at
\nPanipat. This brazen defiance of the orders issued to the Petitioner to report for duty was
\na gross act of indiscipline. The Petitioner had sufficient opportunity even before the
\nCGIT to produce medical certificates to justify his staying away from the enquiry. He
\nappears to have not been successful in proving that case before the CGIT. This Court
\nobviously cannot re-appreciate the evidence. On this aspect the impugned Award cannot
\nbe said to be perverse or contrary to the evidence on record.\n<\/p>\n
11. Mr Saini fervently urged that a major penalty like removal of an employee from
\nservice could not have been awarded without a proper enquiry. He assailed the order
\ndated 21st June 1980 passed by the ZM opining that it was not reasonably practicable to
\nhold an enquiry in terms of Regulation 39 (4) (ii). Relying on the decisions of the
\nSupreme Court in Union of India v. Tulsi Ram Patel AIR<\/a> 1985 SC 1416 and Satyavir
\nSingh v. Union of India AIR<\/a> 1986 SC 555, it was submitted that the reasons adduced
\nby the ZM for dispensing with the enquiry were not justified or reasonable. He
\nsubmitted that the ZM had cited the very reasons for removal of the Petitioner from
\nservice as the reasons for not holding the enquiry and therefore the requirement of
\nRegulation 39 (4) was not satisfied. Further, it was incumbent on the ZM to consider
\nwhether in the circumstances where the Petitioner was unable to report for duty on
\naccount of his medical condition, an enquiry could be held even at a later point in time
\nwhen he was found medically fit. Mr Kamal Mehta learned counsel for the LIC on the
\nother hand referred to the order dated 21st June, 1980 and the finding of the CGIT
\nthereon and submitted that the ZM was justified in his conclusion that it was not
\nreasonably practicable to hold an enquiry in terms of the procedure under Regulation 39.\n<\/p>\n
12. Regulation 39 of the Staff Regulations reads as under:\n<\/p>\n
             “Penalties 39. (1) Without prejudice to the provisions of other
\n             regulations, [any one or more of] the following penalties for
\n             good and sufficient reasons, and as hereinafter provided, be
\n             imposed [by the disciplinary authority specified n Schedule] on
\n             an employee who commits a breach of regulations of the
\n             Corporation, or who displays negligence, inefficiency or
\n             indolence or who knowingly does anything detrimental to the
\n             interest of the Corporation, or conflicting with the instructions or<\/p>\n
W. P. (C) 4170 of 1999                                                        Page 6 of 9<\/span>
\n              who commits a breach of discipline, or is guilty of any other act
\n             prejudicial to good conduct –\n<\/p><\/blockquote>\n
             (a)         censure;\n             (b)         withholding of one or more increments either\n                         permanently or for a specified period;\n             (c)         recovery from pay or such other amount as may be\n                         due to him of the whole or part of any pecuniary loss\n                         caused to the Corporation by negligence or breach of\n                         orders;\n             (d)         reduction to a lower service, or post, or to a lower\n                         time-scale, or to a lower stage in a time-scale;\n             (e)         compulsory retirement;\n             (f)         removal from service which shall not be a\n                         disqualification for future employment;\n             (g)         dismissal.\n\n\n             (2) No order imposing on an employee of any of the penalties\n<\/pre>\n
             specified in clauses (b) to (g) of sub-regulation (1) supra, shall be
\n             passed by the disciplinary authority specified in Schedule
\n             without the charge or charges being communicated to him in
\n             writing and without his having been given a reasonable
\n             opportunity of defending himself against such charge or charges
\n             and of showing cause against the action proposed to be taken
\n             against him.\n<\/p><\/blockquote>\n
             (3) The disciplinary authority empowered to impose any of the
\n             penalties, (b), (c), (d), (e), (f) or (g) may itself enquire into such
\n             of the charges as are not admitted or if it considers it necessary
\n             so to do, appoint a board of enquiry or any enquiry officer for the
\n             purpose.\n<\/p><\/blockquote>\n
             (4) Notwithstanding anything contained in sub-regulations (1)
\n             and (2) above-\n<\/p><\/blockquote>\n
             (i) where a penalty is imposed on an employee on the grounds of
\n             conduct which had led to a conviction on a criminal charge; or\n<\/p><\/blockquote>\n
             (ii) where the authority concerned is satisfied for reasons to be
\n             recorded in writing, that it is not reasonably practicable to follow
\n             the procedure prescribed in this regulation; or\n<\/p><\/blockquote>\n
             (iii)      where an employee has abandoned his post, the
\n             disciplinary authority may consider the circumstances of the case
\n             and pass such orders .\n<\/p><\/blockquote>\n
W. P. (C) 4170 of 1999                                                          Page 7 of 9<\/span><\/p>\n
              Explanations 1: For the purpose of this regulation, an employee
\n             shall be deemed to have abandoned his post if he absents himself
\n             from duty without leave or overstays his leave for a continuous
\n             period of ninety days without any intimation therefor in writing.\n<\/p><\/blockquote>\n
             2. All communications under this regulation and copies of orders
\n             passed thereunder may be delivered personally to the employee if
\n             he is attending office; otherwise they shall be sent by registered
\n             post to the address noted in the service record. Where such
\n             communications or copies of orders cannot be served on him
\n             personally or by registered post, copies thereof shall be affixed
\n             on the notice board of the office in which the employee is
\n             employed, and on such affixing such communications and orders
\n             shall be deemed to have been properly served on him.”\n<\/p><\/blockquote>\n
13. The requirement under Clause (2) of Regulation 39 is that before imposing any
\npenalty on an employee under sub-clauses (b) to (g) of Clause (1) of Regulation
\n39,which includes removal from service, the employee should be communicated the
\ncharges in writing and be given a reasonable opportunity of defending himself against
\nthe charges. He has also to be issued a show cause against the action proposed to be
\ntaken against him. This in effect would mean two show cause notices; one prior to the
\ncommencement of the enquiry and the second prior to the imposition of the penalty. The
\nexception to the above requirement is Clause (4) of Regulation 39, in terms of which the
\nauthority can dispense with the holding of the enquiry provided he records reasons in
\nwriting that it is not reasonably practicable to follow the procedure under Regulation 39
\n(1) read with Regulation 39 (2).\n<\/p>\n
14. The narration of events indicates that numerous attempts were made by the LIC to
\nget the Petitioner to comply with its orders of transfer. These attempts for over a period
\nof eighteen months from 27th November 1978 till 21st June 1980 were unsuccessful. The
\nPetitioner was refusing to even submit to any medical examination. The general attitude
\nof the Petitioner was that of defiance. He simply was not prepared to comply with any
\norder whatsoever that was issued by the LIC. The decision to dispense with the holding
\nof an enquiry was not taken in a hurry. It is only after waiting for more than eighteen
\nmonths and after complete frustration with every attempt at making the Petitioner report
\nfor duty that the ZM concluded that it was not reasonably practicable to hold an enquiry.
\nWhile this also constituted the reason for the Petitioner\u201fs ultimate removal from service,
\nit certainly was a valid consideration for the decision to dispense with the holding of an
\nenquiry. Without the participation of the charged employee the holding of an enquiry<\/p>\n
W. P. (C) 4170 of 1999                                                      Page 8 of 9<\/span>
\n would be a futile exercise. This Court concurs with the CGIT that the order dated 21st
\nJune 1980 passed by the ZM was valid.\n<\/p>\n
15. Mr Saini submitted that the impugned order of dismissal was passed by the ZM
\nwhereas the Petitioner\u201fs disciplinary authority was the Divisional Manager. The ZM, he
\npointed out, was the Appellate Authority (\u201eAA\u201f). It is submitted that with the AA
\nhimself passing the order of removal, the Petitioner was effectively denied one tier of
\nappeal. Apart from the fact that this plea does not appear to have been urged before the
\nCGIT, this Court finds that against the order of removal the Petitioner preferred an
\nappeal to the Managing Director. It cannot therefore be said that the Petitioner was
\ndeprived of any right of appeal. In any event, the Petitioner had a full innings before the
\nCGIT as well. There is therefore no merit in this submission either.\n<\/p>\n
16. Mr Saini ultimately submitted that the punishment of removal from service was too
\nharsh in the facts and circumstances of the case. This Court is unable to agree. This is
\nindeed an extraordinary case where an employee has defied the orders of transfer as well
\nas the orders to report for duty. He also did not comply with the orders to appear before
\na medical board to prove his medical condition. Even after proclaiming that he was
\nmedically fit the Petitioner continued to defy the transfer order. The LIC obviously was
\nleft with no other option but to remove him from service for this gross act of
\nindiscipline. The punishment awarded by the LIC, which has been upheld by the CGIT,
\ndoes not call for interference.\n<\/p>\n
17. For all the aforementioned reasons this Court finds no ground having been made out
\nfor grant of any of the reliefs prayed for by the Petitioner. The writ petition is dismissed,
\nbut in the circumstances, with no order as to costs.\n<\/p>\n
                                                                S. MURALIDHAR, J
\nAUGUST 30, 2011<\/p>\n
W. P. (C) 4170 of 1999                                                        Page 9 of 9<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court S.P. Arya vs Union Of India & Ors. on 30 August, 2011 Author: S. Muralidhar 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-218869","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nS.P. 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