Bashir Ahmad Bihaqi vs State Road Transport Corporation

The petitioner herein was appointed, vide order No. RTC/EC1I/2372/3669 dated 277 10/1978 (AnnexureA), as a Bus Washer with the State

Transport Corporation, hereafter referred to as the Corporation, in the pay Scale of Rs. 170230. It was subsequent there to that Dy. Director (

Administration) of the Corporation adjusted the petitioner, alongwith another person, against the two vacant posts of security guards at the

Corporation's workshop, Srinagar

While petitioner remained on the establishment of the Corporation, the General Manager (Administration) issued the order of his termination

vide No. JKSRTC/EC/iii/52271/ 5007 dated 13/02/1989 on the default of unauthorised absence from duty. This order is challenged through this

writ petition on the grounds interalia that it has come into existence without any opportunity having been afforded to the petitioner to shoe cause

against the order. It is pleaded that no chargesheet, no inquiry, no right of hearing and no right of adducing defence having been afforded, the

impugned order thus militates the constitutional and statutory guarantees against the arbitrary and whimsical termination of services of the

employees by an employer. It is averred that the alleged unauthorised absence occured because the petitioner suffered from mental disequilibrium

whereabout, he intimated through applications to the Corporation but no heed was paid thereto and no opportunity has been afforded to

substantiate the alleged cause of absence. The order being recorded in derogation and violation of the principles of natural justices deserves to be

setaside, it is above all projected in the writ petition that the authority, namely. General Manager (Administration) who issued the order of

termination had no jurisdiction to pass such an order, which is thus void abinitio requiring to be quashed.

The minutes of the file reveal that opportunities to file objections to the admission of the writ petition were afforded but the same were allowed

to go in waste with the result that the petition got admitted for consideration without any sort of resistance. The notices to file counter affidavit, after

admission, were issued to the respondents but despite ample opportunities having been afforded no counter has again been filed with the result that

the matter has come up for determination without any reply from the respondents.

Assuming that the petitioner had absented himself from his duties unauthorisedly, yet his services could not have been terminated without

adherence to the principle of natural justice which' required the holding of an inquiry wherein the defaulting employee had to be given a chance of

hearing and the right of defence.

The impugned order gives out that a charge sheet was issued on 16/07/1988, against the petitioner but to no results as he did not reply it where

at a notice was got published in the Daily Newspaper ""Aftab"" Srinagar, calling upon him to report for duty within the specific period but again to no

avail. It is not disclosed as what was the chargesheet as even a copy thereof has not been filed. It is, therefore, not ascertainable as to what were

the contents of the chargesheet whereabout the petitioner had been directed to explain his position.

The ground taken in the impugned order is that ""a notice was got published calling upon the petitioner to report in the offices of the Corporation

but it too proved fruitless. Assuming that such a notice was issued and got published, yet the notice did not require or call upon the petitioner to

explain the grounds or the reasons of his unauthorised absence or to show cause against the order of termination of his services. The notice

required the petitioner to report for duty. The issuance of the notice is therefore, of no assistance to sustain the argument that opportunity had been

afforded to the employee to explain as to why disciplinary action for unauthorised absence from duty be not taken.

It has for the above said reasons to be held that the impugned order was recorded by the officer of the corporation without any inquiry, without

ariy chargesheet having been furnished,without any right of cross examination of the witnesses in support of the chargesheet, without right of

hearing and without opportunity to lead defence having been provided to the petitioner.

Assuming, though it is not pleaded that the petitioner was not holding any permanent appointment in the Corporation yet his services could not

have been terminated otherwise than the requirements of regulation No. 32 of the J and K SRTC, Service Conditions, Rules and Regulations 1979

which mandate that the services of an employee, who does not hold permanent appointment in the Corporation, are liable to be terminated by the

Competent Authority by giving a months notice or a months pay in lieu thereof. It appears that the impugned order was not issued in terms of

provision of this rule of the Service Regulations as it nowhere makes the reference thereto, muchless one months notice or one month's pay in lieu

thereof having been allowed.

Rule 145 of the said Service Regulations enumerates the acts of commission and omission which amount to misconduct on the part of an

employee of the Corporation. Habitual unauthorised absence from duty is given out as one of the instance of misconduct. Regulation No. 148 of

the Regulation in reference provides for the procedure for imposing major penalties and it is quoted (the rule) in full as:

PROCEDURE FOR IMPOSING MAJOR

PENALTIES

i) When an employee is charged with misconduct which may lead to the imposition of a major penalty, the Disciplinary Authority shall frame

definite charges on the basis of the allegations against him. The charges, together with a statement of allegations on which they are based, shall be

communicated in writing to the employee who shall be required to submit within such time as may be specified by the Disciplinary Authority (not

exceeding 15 days), a written statement of his defence.

ii) On the receipt of the written statement of the employee or if no such statement is received within the time specified an enquiry may be held by

the Disciplinary Authority itself, or by an officer or committee appointed for the purpose (hereinafter called the inquiring Authority by the

disciplinary authority).

iii) At the enquiry, a reasonable opportunity shall be afforded to the employee for explaining and defending his case but he will not be allowed to

engage a legal practioner for this purpose.

Note: The inquiring Authority shall be the sole judge to decide what is a reasonable opportunity.

iv) At the conclusion of the enquiry, the Inquiring Authority shall prepare a report of the enquiry recording its findings on each of the charges,

together with the reasons therefor.

Rule 148 thus mandates that a chargesheet has to be formulated or drawn up in respect of the alleged misconduct which may lead to the

infliction of a major penalty. The disciplinary authority has to furnish the chargesheet alongwith the statement of allegations to the employee who

shall be required to submit within the specific time, his statement of defence in writing. On receipt of the written statement of the employee the

disciplinary authority may by itself or by an officer or committee appointed for the purpose by the disciplinary authority get the charges enquired

into whereat reasonable opportunity shall be afforded to the employee for explaining and defending his case. After the conclusion of the inquiry, the

inquiry officer has undfe** the rule to prepare a report of the inquiry regarding his findings on the chargesheet together the reasons therefore.

Regulation 151 provides that for the reason of security the disciplinary authority may dismiss an employee from service without following the

procedure laid down in the rules.

Admittedly the alleged disciplinary authority has not issued the impugned order after following the requirement of regulation 151 (iii), which

could dispense with the mandatory inquiry warranted under rule 148 of the Regulations. There is nothing on the file to show that the mandatory

inquiry was either dispensed with under regulation 151 (iii) or that the inquiry in terms of regulations 148 had been conducted. The inquiry cannot

be said to have been conducted on the simple plea that (sic) a charge sheet had been issued against the petitioner. The notice on which the

impugned order is said to be based was got published calling upon the petitioner to report for duty in the office of the Corporation. This notice

cannot be said to be the substituted thus for the service of the chargesheet alongwith the statement of allegations against the employee. There is no

escape thus from the conclusion that the impugned order has been recorded in utter disregard of regulation 148 of the Service Regulations which

applied to the petitioner as well, who was admittedly an employee of the Corporation. It is on this count alone that the impugned order merits to be

quashed.

There is yet another aspect project at the bar. The impugned order has been issued by General Manager (Administration) of the Corporation.

This is invalid for the following reasons:

The Board of Directothers of the Corporation vide their decision No. (XIII)held on 28th to 31st Jan., 1997 approved the schedule of powers

delegated to Chairman, Vice Chairman and Managing Director, of the Corporation. The powers of Corporation for appointment and promotion

got delegated to the three functionaries thereof; namely, the Chairman, the Vice Chairman and the Managing Director. Taking of the disciplinary

action including dismissal, termination and suspension of an employee of the Corporation vested under the delegation of powers with the Chairman,

the Vice Chairman or the Managing Director. Entry No. 19 of the Schedule of Delegation of powers, copy produced for the perusal, gives out

what the power of taking of disciplinary action including dismissal, termination and suspension was delegated by the Corporation in respect of the

employees to the appointing authority, namely the Chairman, the Vice Chairman and the Managing Director.

Nothing has been shown under which the General Manager of the Corporation could have been delegated the power of taking disciplinary

action including the power to pass orders of dismissal, termination or suspension of an employee of the Corporation. The contention of the

petitioner appears thus well founded that the General Manager (Administration) who issued the impugned order against him lacked the jurisdiction

and the competence to pass the order. Order appears nonest in the eyes of law as the authority which issued it had no jurisdiction to pass it. On

this ground also the petition must succeed.

For the aforesaid reasons, the writ petition stands hereby allowed/'and the writ of certiorari quashing the impugned order No.

JKSRTC/ECiii/52271/5007 dated 13021989 issued by General Manager (Administration) of the Corporation against the petitioner is issued. Writ

of mandamus is also issued commanding the respondents or the competent authority to hold an enquiry, if so warranted and desired, against the

petitioner for his alleged unauthorised absence from duty. The inquiry which shall be concluded within a period of four months from the date of this

order is communicated to the Corporation. The petitioner shall be entitled to all the benefits of employment under the regulation to which he is

entitled for the period during which the inquiry remains pending.