Chhedan Lal Rastogi vs The Chancellor, Kanpur University and Others

Ram Surat Ram (Maurya), J.—1. Heard Mr. Rohit Tripathi, for the petitioner, Mr. Sameer Kalia, for respondent-1, Mr. Savitra Vardhan Singh, for respondent-2 and Mr. P.K. Khare, for the respondents-4 and 5.

Writ Petition No. 12862 (SB) of 1990 has been filed against the orders of Board of Management (respondent-4), dated 12.08.1990, terminating the petitioner from service and Vice-Chancellor (respondent-2), approving the termination order and for a mandamus directing the respondents to treat the petitioner, in service and pay arrears of salary, other dues, seniority and all consequential benefits. Writ Petition No. 6048 (SB) of 1991 has been filed against the order of Chancellor (respondent-1) dated 30.04.1991, dismissing the representation/appeal of the petitioner against the aforesaid order.

The petitioner was appointed as Lecturer (Physics), on 01.06.1975 in leave vacancy, in Dayanand Subhash National P.G. College, Unnao, a Post Graduate College, affiliated to Kanpur University, Kanpur, governed by U.P. State Universities Act, 1973 and is receiving Grants-in-Aid from State Government, (hereinafter referred to as "the College") on the recommendation of a duly constituted Selection Committee. The leave vacancy was converted into a permanent vacancy w.e.f. 01.07.1977. Thereafter a fresh appointment letter was issued to the petitioner, appointing him on the said post w.e.f. 06.05.1977. The University, however, did not approve appointment of the petitioner. Board of Management, through letter dated 06.03.1979 informed the petitioner in this respect and permitted him to discharge his duty at his own risk. Later on, Director of Higher Education, U.P. refused to grant financial approval to the petitioner, on said post, through his letter dated 13.12.1979. Then the petitioner filed Writ Petition No. 1853 of 1980, before this Court, which was allowed vide judgement dated 10.11.1987 and the respondents were directed to pay salary of the petitioner. Thereafter, Board of Management, in its meeting dated 14.02.1988, confirmed the petitioner w.e.f. 01.07.1979, on the said post.

The petitioner became absent from his duty from 13.08.1989, in the College. The petitioner wrote a letter dated 24.09.1989 for grant of medical leave from 24.09.1989 to 01.10.1989. Principal, through letter dated 18.10.1989 asked the petitioner to supply Medical Certificate of that period. He tried to serve this letter to the petitioner on the three addresses supplied by him as recorded in his Service-Book but he was not found on those addresses. In the meantime, Investigation Officer (Police), P.S. Gwaltoli, Kanpur, raided the College to arrest the petitioner, who was wanted in a criminal case, registered under Section 363/364 I.P.C. The petitioner, later on, surrendered and was sent to jail on 04.11.1989, as per letter of Superintendent of District Jail Kanpur. Due to continuous absence, teaching work was suffering. The application for grant of medical leave and detention of the petitioner in custody were considered by Board of Management in its meeting dated 22.01.1990, who sanctioned leave without payment to the petitioner as in support of application for grant of medical leave, Medical Certificate was not furnished but suspended the petitioner on the ground of wilful negligence towards duty and for his arrest as well as detention in the criminal case and appointed Dr. Ram Mohan Singh, Director of College Development Council, Kanpur University as Inquiry Officer.

Inquiry Officer sent Charge Sheet to the petitioner on 22.02.1990 through Certificate of Posting on the three addresses supplied by him, which were not received back. However there was no acknowledgement of these letters as such Charge Sheet was again sent to the petitioner, through registered post on the three addresses supplied by him on 05.03.1990, which were returned unserved with endorsement that the petitioner was not found on these addresses. Inquiry Officer then effected service through publication in news papers "The Pioneer" Lucknow and "Swatantra Bharat" Kanpur on 08.04.1990. Even then the petitioner did not appear before Inquiry Officer nor filed any reply. Inquiry Officer, then proceeded to conduct ex parte inquiry. Two charges (i) that the petitioner wilfully absented from his duties in the college from 13.09.1989 to 21.02.1989 and (ii) he committed misconduct, were levelled against the petitioner. Inquiry Officer found that the petitioner had sent 8 different applications for grant of leave on the ground of illness for the period from 13.09.1989 to 21.02.1990 through post but did not produce Medical Certificate from a registered Medical Practitioner, (i) except in his application dated 16.09.1989, he did not give his address in the applications for leave sent by him later, where the college could contact him. He was not available on the address given in the letter dated 16.09.1989 (ii) as he was absconding to avoid arrest by the police and was later arrested by police and sent to jail, he evaded to give his correct address. In application dated 06.12.1989, which was sent from District Jail, Kanpur for grant of two months medical leave from 15.11.1989 to 14.01.1990, without mentioning the decease from which he was suffering. Superintendent of Jail informed that the petitioner was detained in jail from 04.11.1989. The petitioner through his letter dated 08.03.1990, sent to the Principal, submitted two Medical Certificates dated 23.09.1989 and 14.03.1990, in which it has been mentioned that the petitioner was fit to resume his duties from 21.02.1990. But the petitioner did not turn up on his duty from 21.02.1990. The Secretary, Board of Management wrote a letter to the petitioner to supply medical certificate from Chief Medical Officer, Civil Hospital, Unnao. The Secretary also wrote a letter to submit his reply before Inquiry Officer of the charges. This notice was also sent to the petitioner on all the three addresses of the petitioner and got published in news papers "The Pioneer" Lucknow and "Swatantra Bharat" Kanpur on 09.05.1990. But the petitioner, neither appeared in the College nor before Inquiry Officer.

Inquiry Officer submitted his ex parte Inquiry Report, finding the charges against the petitioner as proved. Board of Management, through resolution dated 07.06.1990, accepted Inquiry Report and resolved to terminate the petitioner from service. Resolution dated 07.06.1990 was sent to Vice-Chancellor for approval, along with other papers relating to inquiry. Vice-Chancellor also issued notice to the petitioner fixing 16.07.1990 for objection and personal hearing, on his three addresses recorded in service-book but the petitioner did not respond. Vice-Chancellor having satisfied with the fairness of inquiry and materials on the basis of which charges were proved, vide order dated 25.07.1990, approved the resolution dated 07.06.1990. Thereafter, Board of Management in its meeting dated 12.08.1990 terminated the petitioner from service. The petitioner filed his representation to the Chancellor, which was dismissed by order dated 08.04.1991. Hence, these writ petitions have been filed.

The counsel for the petitioner submitted that Statute 17.06 of Kanpur University prescribes the procedure of disciplinary proceeding for imposing major penalty, which requires to frame charges against a delinquent employee and communicate him with a statement of grounds on which it was proposed to take action and give opportunity of hearing. The communication of charges and material, including notice published in news papers did not mention specific charge and the grounds on which action was proposed, thus it was vague. Statutory provision for conducting disciplinary proceeding has not been followed. In eventuality of non-participation of delinquent employee in inquiry, Inquiry Officer is not absolved from his duty to follow the statutory procedure and holding inquiry according to it. Inquiry Officer had not fixed date, time and place for inquiry nor actually conducted any inquiry, inasmuch as, he did not examine oral witnesses and without conducting inquiry, he submitted ex parte report. Only charge, against the petitioner, was that he was absent from his duties from 13.09.1989 to 21.02.1990 without any information. The petitioner submitted his application for grant of medical leave, which was accepted by Board of Management and the petitioner was sanctioned leave without payment. A finding ought to have been recorded by Inquiry Officer in this respect as to whether the petitioner was entitled for grant of leave during this period or not but no such finding has been recorded by any of the authorities. Without considering the fact that the absence of the petitioner has been regularized, punishment of termination from service has been awarded to the petitioner, which is disproportionate to the charges levelled against him. He relied upon judgements of Supreme Court, in Krushnakant B. Parmar v. Union of India, , (2012) 3 SCC 178, in which it has been held that if absence from duty was due to compelling circumstances then dismissing from service is not proportionate punishment. Bhagwan Lal Arya v. Commissioner of Police, Deli, , 2004 (101) FLR 193 (SC), in which it was held that sentence for dismissal from service for absence from duty for a period of 2 months 8 days due to bad heath is not justified. Pepsu Road Transport Corporation v. Rawel Singh, (2004) 4 SCC 42, in which also un-authorise absence from duty for few days was not found fit for dismissal from service. State of Uttaranchal v. Kharak singh, , (2008) 8 SCC 236, in which it has been held that departmental inquiry is not an empty formality. In absence of delinquent employee also Inquiry Officer is not absolved from conducting ex-parte inquiry and examine witnesses and documents to record his findings on charges.

We have considered the arguments of the counsel for the parties and examined the record. Statute 17.04 (a) of Kanpur University, wilful neglect of duty and Statute 17.04 (e) conviction for offence involving moral turpitude provide for awarding major punishment. The petitioner was suspended and inquiry was initiated against him for charges (i) that he wilfully absented from his duties of the College from 13.09.1989 to 21.02.1989 and (ii) He committed misconduct inasmuch as he was detained in jail since 04.11.1989 in connection with an offence punishable under Section 363 and 364 I.P.C. Thus, suspension of the petitioner was according to the provisions of Statute of University.

According to the respondents, the petitioner got three addresses recorded in his service book. Suspension order, charge sheet and materials relied upon against the petitioner were sent to him through Post, under Certificate of Posting, on the said three addresses, on 22.02.1990, which were not received back as such it will be deemed to have been served. But in the absence of acknowledgement, these materials were again sent through registered posts on the three addresses, on 05.03.1990, which were returned with endorsement of Post Office that the petitioner was not found on the addresses. From letter of Superintendent, District Jail Kanpur, it was proved that the petitioner was detained in jail since 04.11.1989 as such inference was drawn that earlier the petitioner was absconding to abstain from arrest and later on due to his custody, he was not found on the addresses supplied by him at the time of delivery of letters by Post Office. Thereafter, Inquiry Officer effected service through publication in news papers "The Pioneer" Lucknow and "Swatantra Bharat" Kanpur on 08.04.1990. The Secretary of the College also got published notice in news papers "The Pioneer" Lucknow and "Swatantra Bharat" Kanpur on 09.05.1990. But the petitioner, neither resumed his duties in College nor appeared before Inquiry Officer. Thus the procedure for holding departmental inquiry was fully followed and the petitioner was given opportunity of hearing.

The argument that in the notice as published, the charges were not mentioned, is concerned, in the notice the petitioner was given liberty to collect charge sheet and other materials from Inquiry Officer. It was a notice to inform the petitioner that departmental inquiry/proceeding was initiated against him. If the petitioner came to know about it through publication, then he could have obtained charge sheet and other material from Inquiry Officer.

The arguments that Inquiry Officer has neither fixed date, time and place for inquiry nor actually conducted any inquiry, inasmuch as he did not examine oral witnesses, is concerned, it is admitted that the petitioner had not participated in inquiry thus fixing date, time and place of inquiry was not required. The petitioner through his various letters admitted his absence from duty, which was otherwise also proved from Attendance Register of the College, thus charge that the petitioner neglected his duty, was proved from documentary evidence. It is defence of the petitioner that he had reasonable excuse for his absence on duty, for which the petitioner has failed to plead and prove. Thus being no defence/proof, there is no illegality in findings that the petitioner was guilty to neglect his duty.

Now the question arises as to whether the punishment is disproportionate to charges? Supreme Court in Buckingham & Carnatic Co. Ltd. v. Venkatiah, , AIR 1964 SC 1272, held that where termination of the employee''s services follows automatically either from a contract or from a Standing Order by virtue of the employee''s absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employer, and so, to such a termination the prohibition contained in Section 73(1) would be inapplicable. Constitution Bench of Supreme Court in Mafatlal Narandas Barot v. J.D. Rathod, Divisional Controller, State Transport, , AIR 1966 SC 1364, held that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. The respondent may award the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause.

Supreme Court in State of M.P. v. Harihar Prasad Goel, (1969) 3 SLR 274 (SC) and State of U.P. v. Mahadev Prasad Sharma, , (2011) 2 SCC 212 held that regularisation of unauthorised absence without pay and to continue with the disciplinary proceedings and awarding punishment of dismissal from service is justified. The Court in exercise of supervisory jurisdiction is not justified in interfering with the sentence.

The petitioner was employed as a Teacher in the College. He was out of service since 23.09.1989. After such a long time, no relief can be granted to him. He may not fit at this time to discharge his teaching work as there is a long discontinuity of educational work.

In view of the aforesaid discussions, both the writ petitions have no merit and are dismissed.