{"id":235750,"date":"1996-10-30T00:00:00","date_gmt":"1996-10-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hindustan-paper-corpn-vs-purnendu-chakrobarty-ors-on-30-october-1996"},"modified":"2018-01-12T05:40:10","modified_gmt":"2018-01-12T00:10:10","slug":"hindustan-paper-corpn-vs-purnendu-chakrobarty-ors-on-30-october-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hindustan-paper-corpn-vs-purnendu-chakrobarty-ors-on-30-october-1996","title":{"rendered":"Hindustan Paper Corpn vs Purnendu Chakrobarty & Ors on 30 October, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hindustan Paper Corpn vs Purnendu Chakrobarty & Ors on 30 October, 1996<\/div>\n
Author: Venkataswami.<\/div>\n
Bench: B.P. Jeevan Reddy, K. Venkataswami<\/div>\n
           PETITIONER:\nHINDUSTAN PAPER CORPN.\n\n\tVs.\n\nRESPONDENT:\nPURNENDU CHAKROBARTY & ORS.\n\nDATE OF JUDGMENT:\t30\/10\/1996\n\nBENCH:\nB.P. JEEVAN REDDY, K. VENKATASWAMI\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\n     VENKATASWAMI. J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     Heard learned counsel for the parties at length.
\n     The appellant-Corporation\ton January 5, 1989 passed an
\norder  invoking\t  Rule\t23(vi)\tE  of  the  Hindustan  Paper
\nCorporation Conduct Discipline and Appeal Rules (hereinafter
\ncalled “the  Rules”). That  order was to the effect that the
\nfirst respondent herein must be deemed to have lost his Lien
\non his appointment with the Corporation\/Mill.\n<\/p>\n
     The first\trespondent has\tsuccessfully challenged\t the
\nsaid order  of\tthe  appellant\tbefore\tthe  High  Court  of
\nGuwahati and thus. the appellant is before us.\n<\/p>\n
     The  first\t respondent  entered  the  services  of\t the
\nappellant as  a Fire  Fighting Officer\tand  was  eventually
\npromoted on 28.8.1985 as Assistant Manager (Security & Fire-
\nfighting). On  may 26.\t1988 the  body of  one\tshanti\tRani
\nChakrabarty, sister-in-law  of\tthe  first  respondent.\t was
\nfound in  the house  of the  first respondent. On 27.5.1988.
\nthe first  respondent applied casual leave. On the next day.
\nan FIR\twas lodged  aginst the\tfirst respondent  and others
\nunder Section 302\/201 read with Section 34 IPC by Karim Ganj
\nPolice. On  3.6.1988. the  first respondent after the expiry
\nof casual  leave sent an application for Earned Leave for 11
\ndays giving  the reason ‘personal affair’ and mentioning his
\nleave address  as U\/S  PWD Dispur,  Gauhati. On 6.6.1988 the
\nSenior Manager\tof the appellant received a message from the
\nPolice to  direct the  first respondent\t to  report  to\t the
\npolice station.\t On 7.6.1988 the Senior Manager informed the
\npolice that the first respondent has sent an application for
\nEarned Leave.  Again the  police requested  to intimate\t the
\nwhereabouts  of\t the  first  respondent.  On  l4,6.1988\t the
\nappellant informed  the police\tthat the  whereabouts of the
\nfirst respondent  not known.  However. the permanent address
\nof the first respondent as available in the official record.
\nwas supplied  to the  police. Thereafter. the appellant sent
\nseries\tof   leave  applications   dated  21.6.88.  14.7.88.
\nl3.9.88. 28.8.88.  13.9.88. 29.9.88.  16.10.88\tand  5.11.88
\nwithout minding\t to find  out whether  previous applications
\nfor  leave   have  been\t  sanctioned  or  not.\tThese  leave
\napplications initially\tdid  not  disclose  any\t reason\t and
\nsubsequently  it  mentioned  `on  medical  grounds’  without
\nenclosing any medical certificate and without disclosing his
\nleave address.\tThe appellant-Corportion  again received  on
\n28.11.1988 a  communication from  the police  that the first
\nrespondent was\twanted as  an accused  in a  murder case. ln
\nview of\t that the  Appellant-Corporation by  a communication
\ndated 30.1l.1988  informed the\tfirst  respondent  that\t his
\nleave  on   medical  grounds   was  not\t sanctioned  as\t his
\napplications were  not supported by medical certificates and
\nthat  he  was  liable  to  be  treated\tas  an\tunauthorised
\nabsentee. He  was. therefore.  called  upon  to\t submit\t his
\nexplanation, if any within 15 days of receipt of the letter.
\nHe was\talso incidentally  informed that  he was required by
\nthe Superintendent  of Police, Karim Ganj in connection with
\nthe murder.  In response to the above communication from the
\nappellant-Corporation. the  first respondent  submitted\t his
\nreply baldly  stating that  he was suffering from chest pain
\nfor quite  some time  and that\the had\tconsulted specialist
\noutside HPC for personal reasons and due medical cercificate
\nWill be\t produced at  the time\tof joining. He also informed
\nthe Corporation\t that he knew that he was required to appear
\nbefore the  Police and that he would report to the police as
\nper  rules.   It  is  under  these  circumstances  that\t the
\nappellant-Corporation  passed\tthe  order   dated  5.1.l989
\ninvoking Rule 23 (vi) E the Rules.\n<\/p>\n
     The appellant  aggrieved by  the said  order moved\t the
\nGuwahati High  Court by\t filing Civil  Rule No.\t 288 of 1992
\nunder Article  226 of the Constitution of India. The learned
\nSingle Judge as well as the Division Bench. on appeal by the
\nappellant-Corporation, agreeing\t with the arguments advanced
\non behalf of the first respondent set aside the order of the
\nappellant-Corporation  dated   5.1.1989\t and   directed\t re-
\ninstatement of first respondent with 50% back wages.\n<\/p>\n
     When the  Special Leave  Petition came up for admission
\nthis Court  while issuing  notice passed  an  order  in\t the
\nfollowing terms:\n<\/p>\n
     “In the light of the sub-clause (E)
\n     of\t Clasue\t  VI  of  Rule\t23.  the
\n     validity of  which is stated not to
\n     have so far been pronounced upon by
\n     this Court\t in  the  context  of  a
\n     Public Sector Corporation. a notice
\n     shall    be     issued    to    the
\n     respondents.”<\/p><\/blockquote>\n
     Before actually  going into  the validity\tof the\tsaid
\nRule it\t would he  beneficial to appreciate the facts little
\nmore critically,  which will  be  helpful  to  come  to\t the
\ncorrect conclusion.\n<\/p>\n
     The first\trespondent is  not a  workman  to  avail  or
\ninvoke the  provisions of  the Industrial Disputes Act 1947.
\nHe is  governed by  the Rules  framed by  the Corporation in
\nthis regard.  We have  already noted  that in  view  of\t the
\npendency of  criminal case registered against him, the first
\nrespondent without  disclosing that  fact has  been  sending
\napplications for leave commencing from 21.6.1988 ending with
\n5.11.1988. Copies  of the application for leave are tiled in
\nthe paper  book along  With copies  of medical\tcertificates
\nproduced by  the first respondent. not before the appellant-
\ncorporation on\ttime. but  long subsequently.  Initially, as
\nnoticed earlier. the applications for leave did not disclose
\nany reason.  Later on,\tin the\tapplication for\t leave dated
\n13.8.1988,  the\t  reason  given\t was  suffering\t from  heart
\ndisease’. Again\t in the\t application  dated  13.9.1988.\t the
\nreason given  was heart\t disease since long. The same reason
\nwas given  in the  applications dated  29.9.1988  16.10.1988
\nand 5.11.1988  It is very relevant to note that according to
\nthe medical  certificates, copies  of which are now produced
\nwhich are dated 4.5.1988 onwards ending with 21.01.89.
\nnowhere it  was stated\tthat he\t was  suffering\t from  heart
\ndisease. Further.  nature of  the sickness  was mentioned in
\nthe certificate\t and in\t spite of  that\t the  same  was\t not
\ndisclosed correctly  in the  leave applications.  It is also
\nclear that  those certificates were available and inspite of
\nthat not  enclosed alongwith  the leave\t applications.\tFrom
\nthis one  has to  draw the inference that either the medical
\ncertificates are not genuine in the sense that they were not
\nobtained then and there or the first respondent deliberately
\ndid not enclose them along with the leave applications. Even
\ntoday no  proper explanation  is forthcoming  from the first
\nrespondent on this aspect. With this background we shall now
\nset out the relevant rule:-\n<\/p>\n
     Rule 23, PENALTIES
\n     The following  penalties may be imposed on an employee.
\n     as hereinafter  provided. for  misconduct committed  by
\n     him or for any other good and sufficient reasons.
\n     Minor Penalties\n<\/p><\/blockquote>\n
     a) censure:\n<\/p><\/blockquote>\n
     b) withholding  of increment(s)  of pay with or without
\n     cumulative effect:\n<\/p><\/blockquote>\n
     c) withholding of promotion;\n<\/p><\/blockquote>\n
     d) recovery from pay or such other amount as may be due
\n     to him  of the  whole or  part of\tany  pecuniary\tloss
\n     caused to\tthe Corporation\t by negligence\tor breach of
\n     orders.\n<\/p><\/blockquote>\n
     Major Penalties\n<\/p><\/blockquote>\n
     e) reduction  to a\t lower grade  or post. or to a lower
\n     stage in a time scale:\n<\/p><\/blockquote>\n
     f)\t removal   from\t service   which  shall\t  not  be  a
\n     disqualification for future employment ;\n<\/p><\/blockquote>\n
     g) dismissal;\n<\/p><\/blockquote>\n
     Explanation:  The\tfollowing  shall  not  amount  to  a
\n     penalty within the meaning of this rule.\n<\/p><\/blockquote>\n
     i) withholding  of increment  of an employee on account
\n     of his  work being found unsatisfactory or not being of
\n     the  required  standard.  or  for\tfailure\t to  pass  a
\n     prescribed test of examination:\n<\/p><\/blockquote>\n
     ii) stoppage  of an employee at the efficiency bar in a
\n     time scale, on the ground of his unfitness to cross the
\n     bar:\n<\/p><\/blockquote>\n
     iii) non-promotion, whether in an officiating capacity
\n     or otherwise , of an employee to a higher post for
\n     which he may be eligible for higher post for which he
\n     may be eligible for consideration but for which he is
\n     found unsuitable after consideration of his case;\n<\/p><\/blockquote>\n
     iv) reversion  to lower  grade or\tpost, of an employee
\n     officiating in  a higher  grade or\t post, on the ground
\n     that he  is considered,  after trial,  to be unsuitable
\n     for such  higher grade  or post,  or on  administrative
\n     grounds unconnected with his conduct;\n<\/p><\/blockquote>\n
     v) reversion  to his  previous grade  or  post,  of  an
\n     employee appointed\t on probation  to another  grade, or
\n     post during  of at\t the end of the period of probation,
\n     in accordance with the terms of his appointment;\n<\/p><\/blockquote>\n
     vi) TERMINATION OF SERVICE
\n     A)\t   of  an employee appointed on probation. during or
\n     at the  end of  the period\t of probation. in accordance
\n     with the terms of his appointment:
\n     B)\t   of  an employee appointed in a temporary capacity
\n     otherwise than  under a  contract or  agreement. on the
\n     expiration of the period for which he was appointed. Or
\n     earlier  in   accordance  with   the   terms   of\t his
\n     appointment:\n<\/p><\/blockquote>\n
     C)\t of  an\t employee  appointed  under  a\tcontract  or
\n     agreement.\t in   accordance  with\tthe  terms  of\tsuch
\n     contract or agreement:\n<\/p><\/blockquote>\n
     D) of any employee on reduction of establishment; and
\n     E) Loss of lien on his appointment by an employee:\n<\/p><\/blockquote>\n
     1. Proceeding  on\tleave  without\tprior  sanction\t and
\n     remaining\tunauthorisedly\t absent\t for   more  than  8
\n     consecutive days.\n<\/p><\/blockquote>\n
\t\t\t   and\/or\n<\/p><\/blockquote>\n
     2. Over-staying  his sanctioned leave beyond the period
\n     originally granted\t or  subsequently  extended  formore
\n     than 8 consecutive days.”<\/p><\/blockquote>\n
     In the  light of the above Rule, in  particular Rule 23\n<\/p>\n
(vi) E, the appellant-Corporation factually by communication
\ndated 30.11.1988  informed the\tfirst  respondent  that\t the
\nleave  applications  have  not\tbeen  supported\t by  medical
\ncertificates; that  period must\t be treated  as unauthorised
\nabsent’ and  if he  has got aything to say on that aspect he
\nhas to\tsend the  reply within\t15 days\t from  the  date  of
\nreceipt of that letter. His reply  was that he was suffering
\nfrom  chest  pain  for\tquite  some  time  and\tthe  medical
\ncertificates will be produced at the time of joining. To say
\nthe least,  that should\t not be the attitude of an employee.
\nFirst of  all. he  was expected to take the leave ordinarily
\nwith prior  sanction and  extend the  same after the earlier
\none was\t sanctioned by the appropriate authority. Right from
\nthe beginning  his applications\t were not only not in proper
\nform but  were not  supported by any medical certificates to
\njustify the  claim of  the first  respondent. At  least\t the
\nfirst respondent  should have  replied properly by enclosing
\nthe medical  certificates or should have come forward with a
\ntrue case.  He\t did neither. lt is in that context that the
\nappellant-corporation invoked  the said\t Rule. namely.\tRule
\n23(vi) E.\n<\/p>\n
     Mr.  P   P\t Rao.\tsenior\tcounsel\t appearing  for\t the
\nappellant-Corporation fairly  in our  view rightly  conceded
\nthat the  Rule. namely. Rule 23(vi) E has to be construed by
\nreading into it the Principles of natural justice. Otherwise
\nby reading  it literally,  it would  amount to arbitrary and
\nunreasonable vesting  of authority  and liable\tto be struck
\ndown. According\t to the\t learned counsel.  if only the first
\nrespondent had\tproperly responded  to the show cause notice
\nthe Corporation\t might not  have taken\tthe extreme  step of
\ncutting off the appointment of the first respondent with the
\nCorporation.\n<\/p>\n
     We consider that in view of this concession made by the
\nlearned counsel\t on behalf of the appellant Corporation that
\nthe said  Rule must  be read and given effect to. subject to
\nthe compliance\tof the\tprinciples of  natural\tJustice.  It
\ncannot be  said that   the rule is arbitrary or unreasonable
\nor ultra  vires Article\t 14 of\tthe Constitution.  In  other
\nwords,\tbefore\ttaking\taction\tunder  the  said  clause  an
\nopportunity should  be given  to the  employee to show cause
\nagainst the  action proposed  and if  the cause shown by the
\nemployee is  good and  acceptable, it follows that no action
\nin terms  of the  said clause  will be\ttaken. Understood in
\nthis sense.  it can  not be  said that\tthe said  clause  is
\neither\tunreasonable  or  voidable  of\tArticle\t 16  of\t the
\nconstitution.\n<\/p>\n
     Mr. Sanjay\t Parikh. Learned  counsel appearing  for the
\nfirst respondent  however. vehemently contended that in view
\nof the\trecent judgment\t of this Court in D.K. Yadav vs. JMA
\nndustries  Ltd (1993) 3\t SCC 259 which has considered number
\nof earlier judgments of this Court including Hindustan Steel
\nLtd. vs.  Presiding Officer,  Labour Court<\/a> (1976) 4 SCC 222:
\nL. Robert  D` Souza vs. Executive Engineer. Southern Railway<\/a>
\n(1982) 1  SCC 645:  Delhi Transport Corpn. V. D.T.C. Mazdoor
\nCongress<\/a> 1991  supp (1)\t SCC 600,  the judgment and order of
\nthe High Court cannot be assailed.. According to the Learned
\ncounsel. before passing the impugned order against the first
\nrespondent, the\t appellant-Corporation should have conducted
\na full\tfledged order. He  also invited our attention to the
\nreasonings given by the Division Bench of the High Court.\n<\/p>\n
     The Devision  Bench of the High Court by confirming the
\norder of  the learned single Judge appears to have fell into
\nan error  in correct   appreciating  the scope\tof Rule\t 23.
\nAccording to  the learned  Judges of the Division Bench. the
\nloss of lien is a major penalty and therefore. attracts Rule
\n25 which  provides that\t no major  penalty  can\t be  imposed
\nwithout holding an inquiry under the Rules. This view of the
\nDivision Bench led them to pass the following observation.\n<\/p>\n
     “Admittedly. no  inquiry  has  been
\n     held and the alternative submission
\n     of substantial  compliance\t of  the
\n     Rules   as already discussed above,
\n     has been  held to\tbe illusory.  It
\n     cannot therefore be said in absence
\n     of any inquiry  whatsoever that the
\n     deliquent\t    writ      petitioner
\n     deliberately abstained from duty on
\n     a feigned\tor pretended  ground  of
\n     illness.  It   was\t a   matter   of
\n     inquiry..<\/p><\/blockquote>\n
     We have  extracted Rule  23 in full. The explanation to
\nthe Rule  specifically states  that certain items enumerated
\nthereunder shall  not be  treated as a penalty at all within
\nthe meaning  of Rule  23. For  our case\t the relevant\t sub
\nclause is (vi) E which says that proceeding on leave without
\nPrior sanction\tand remaining unauthorisedly absent for more
\nthan 8\tconsecutive days; and\/or over-staying his sanctioned
\nleave beyond  the period  originally granted or subsequently
\nextended for  more than\t 8 consecutive\tdays would result in
\nloss of\t lien of  the appointment  of the  employee. In this
\ncase we have seen that the first respondent had proceeded on
\nleave without prior sanction and remained unauthorisedly
\nabsent for  more than  6 months\t consecutively which obliged
\nthe appellant-Corporation  to  issue  communication  to\t the
\nfirst respondent calling upon him to explain. Unfortunately.
\nthe first respondent. for reasons best known to him. has not
\navailed himself\t of the\t opportunity  as  seen\tearlier\t but
\nreplied in a half-hearted way which resulted in the impugned
\norder. Therefore.  under the circumstances it cannot be said
\nthat  the  principles  of  natural  justice  have  not\tbeen
\ncomplied with  or the  circumstances require  any enquiry as
\ncontemplated under Rule 25. In the case cited by the learned
\ncounsel for  the first respondent. this Court has held “that
\nthe law\t must. therefore,  be now  taken to  be well-settled
\nthat  procedure\t  prescribed  tor   depriving  a  person  of
\nlivelihood must\t meet the  challenge of\t Article 14 and such
\nlaw would  be liable to be tested on the anvil of Article 14
\nand the\t procedure prescribed by a statute on statutory rule
\nor rules  or orders  affecting the civil rights or result in
\ncivil consequences  would have\tto answer the requirement of
\nArticle 14.  So it  must be  right, just  and fair  and\t not
\narbitrary,  fianciful\tor  oppressive.\t  There\t can  be  no
\ndistinction  between   a  quasi-judicial   function  and  an
\nadministrative function\t for the  purpose of  principles  of
\nnature justice.\t The aim  of both  administrative inquiry as
\nwell as\t the quasi-judicial  inquiry is\t to arrive at a just
\ndecision and  if a  rule of natural justice is calculated to
\nsecure justice\tto put it negatively, to prevent miscarriage
\nof justice.  it\t is  difficult\tto  see\t why  it  should  be
\napplicable  only   to  quasi-judicial  inquiry\tand  not  to
\nadministrative inquiry. It must logically apply to both.”\n<\/p>\n
     On a  consideration of  the entire facts, we are of the
\nview that  the test  laid down\tby this\t Court, as extracted
\nabove has  been satisfied  by the  appellant-Corporation and
\ntherefore when viewed from the point of Rule 23(vi) E, there
\nwas no\tgood reason for the High Court to interfere with the
\nimpugned order of the appellant-Corporation dated 5.1.1989.\n<\/p>\n
     While ordering  notice, this  court  has  directed\t the
\nappellant to  pay  1\/5th  of  the    arrears  to  the  first
\nrespondent within  3 months.  lt is  stated that   order has
\nbeen complied  with. It\t is also  brought to our notice that
\nthe first  respondent is  due to  rctire shortly  within few
\nmonths. Taking\tthe totality  of the facts and circumstances
\nof the\tcase and  having due regard to the services rendered
\nby the first respondent. the ends of justice would be met if
\nthe appellant-Corporation is directed to give all pensionary
\nand terminal, benefits to the first  respondent treating the
\ncase to the first respondent as compulsory retirement on and
\nfrom 5.1.1989.\tWe direct  accordingly .  the amount already
\npaid pursuant  to the interim direction of this Court is not
\nliable to  be refunded by the first respondent and not to be
\nadjusted against the terminal benefits payments. if any.\n<\/p>\n
     The appeal\t is accordingly\t disposed of. However. there
\nwill be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hindustan Paper Corpn vs Purnendu Chakrobarty & Ors on 30 October, 1996 Author: Venkataswami. Bench: B.P. Jeevan Reddy, K. Venkataswami 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 […]<\/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":[30],"tags":[],"class_list":["post-235750","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHindustan Paper Corpn vs Purnendu Chakrobarty & Ors on 30 October, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hindustan-paper-corpn-vs-purnendu-chakrobarty-ors-on-30-october-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hindustan Paper Corpn vs Purnendu Chakrobarty & Ors on 30 October, 1996 - 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