Joginder Chand vs Punjab Electricity Board

R.K. Nehru, J.—This Regular Second Appeal is directed against the judgment and decree of the first Appellate Court affirming on appeal those of the learned trial judge dismissing the suit of plaintiff-appellant (hereinafter the plaintiff) for declaration that his services were illegally terminated.

The plaintiff was appointed as work charge by the Punjab State Electricity Board (Board for short) in the month of February, 1979. He fell ill on February 13, 1987 and on account of his illness, he could not resume bis duties. His request to the authorities for leave on medical ground was declined. His services were terminated vide order dated February 20, 1987. He challenged the order of termination on the ground that the order of termination was issued for his wilful absence from duty and that it resulted in civil consequences. Although it is order of termination simpliciter but was passed as a measure of punishment for the reason that the plaintiff remained absent from duty without leave. The Board did not accept the correctness of the factual position and asserted that the order was passed in terms of Clause 13(2) of the Board''s standing orders.

From the pleadings of the parties, the following issues were framed:-

1) Whether the plaintiff is entitled to the declaration that he continued to be in service of the P.S.E.B. as work charge employee? OPP

2) Whether the plaintiff is entitled to mandatory injunction directing the defendant to treat the period of absent from duty as a leave of kind due on medical ground? OPP

Under issue No. 1, it was held that the plaintiff had failed to establish that he was a regular employee of the Board having served continuously for a period of eight years. Issue No. 2 was also decided against the plaintiff in view of the finding on issue No. 1.

Aggrieved against the judgment and decree of the learned trial Judge, the plaintiff assailed the same in the first appeal. The first Appellate Court upheld the finding of the learned trial Judge under issues No. 1 and 2 and dismissed the appeal.

Learned counsel for the plaintiff-appellant submitted that the services of the plaintiff were terminated by the Board in terms of Clause 13 (2) of the Standing Orders framed under the Industrial Disputes Act, 1947, with respect to industrial establishments, not being a factory as under the Factories Act Clause 13(2) of the Standing Orders reads as under:-

"If a workman remains absent without permission, he shall lose his lien on the appointment and shall be deemed to have voluntarily retired for the purpose of Section 2(oo) of Industrial Disputes Act, 1947 unless:-

(a) he explains within one week of the commencement of his absence to the satisfaction of the authority competent to sanction leave that absence was due to circumstances beyond his control and leave is due to him whether with or without wages. But when the competent authority is not satisfied with the explanation tendered, it may at its discretion, however, deal with the absence in any one of the following manners:-

(a) Sanction period of absence as leave without wages even if leave with wages is due to him.

(b) Convert his absence in whole or in part as suspension and regularise the remaining period as leave without wages.

(c) Sanction leave with or without wages together with an order inflicting fine or issuing warning.

(d) Withhold annual increment/raise in wages or reduce his wages after issuing 21 days notice u/s 9A of the Industrial Disputes Act, 1947 where such notice is required under rules."

The Constitution validity of this Clause came up for consideration before the Apex Court in D.K. Yadav Vs. J.M.A. Industries Ltd., ). Judgments Today. The Apex Court observed that Clause 13(2) of the Standing Orders is not in tune with the spirit of Articles 14 and 21 of the Constitution of India and observed thus: (at p. 701):

"10. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Art 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So, it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent mis-carriage of justice, it is difficult to see why it should be applicable only to quasi- judicial enquiry and not to administrative enquiry. It must logically apply to both.

Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Art 14 and the procedure prescribed by law must be just, fair and reasonable."

Applying the ratio of this judgment to the facts of the instant case, it is not possible to uphold the termination. The impugned order of termination from service although appears to be an order of termination simpliciter but if we lift the veil, it will transpire that the order of termination was the result of absence from duty without leave. It was passed as a measure of punishment. It could only have been passed in conformity with the principles of natural justice as has been observed in D.K. Yadav''s case (supra). The impugned order was passed for remaining absent from duty without leave. In view of the ratio of the judgment in D.K. Yadav''s case (supra) the order of termination cannot be sustained.

Learned counsel for the appellant submits that once the order of termination of service of the appellant is set aside and he is ordered to be re-instated in service, then he must be deemed to be entitled to all back wages for the period, he remained out of service during the period of his termination. However, learned counsel for the Board states that no doubt the Board is to be blamed for not giving an opportunity to the appellant to defend himself by holding an enquiry against him, but the appellant must also be blamed for the action taken against him by the Board and as such, it would meet the interest of justice if only 50 precent of the back wages are allowed to the appellant in this case.

I find this offer of the learned counsel for the respondent very fair in the circumstances. Accordingly, the appeal is allowed, judgments and decrees of the Courts below are set aside and the suit of the plaintiff-appellant is decreed to the effect that the appellant shall be reinstated in service forthwith and be paid 50 percent of the back wages within a period of five months from the date of passing of this order. In the circumstances of the case, parties shall bear their own costs.