Minati Bhattacharya vs Regional Food Controller and Others

Rajiv Sharma, J.—Heard learned Counsel for the petitioner and learned Standing counsel.

Through the instant writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated May 28, 1986 passed by the Regional Food Controller, Kahpur, dismissing the petitioner from service and the order dated February 9, 1994 passed by the Commissioner, Food & Civil Supplies, U.P., Luckaow, upholding the dismissal of the petitioner.

Learned Counsel for the petitioner submits that the petitioner was appointed on the post of Junior Clerk in the office of the Regional Food Controller, Head Office Parmat, Kanpur, in the year 1975. He submits that while working on the post of Junior Clerk, his mother, who resided at Calcutta, met with an accident in the first week of August, 1985 and on reaching Calcutta, he found that her mother became totally incapable of movement and as there was no other person left in the house to take care of her mother and as such, he applied for earned leave from August 16, 1985 to September 15, 1985 by a registered post which was sanctioned by the Regional Food Controller without pay.

Learned Counsel for the petitioner further submits that as petitioner''s mother was not recovered till September 15, 1985, he has sent an another application for extending her leave from September 16, 1985 to October 15, 1985 through registered post but no communication either on'' leave or refusing leave from the Regional Food Controller was received by the petitioner. He submits that due to strain and tension, the petitioner was ill and as such, she sent another application to the Regional Food Controller, Kanpur for granting medical leave from October 16, 1985 to November 15, 1985 through registered post and thereafter, she sought five times on different occasions for extension of medical leave by moving applications through registered post i.e. from November 16, 1985 to December 15, 1985, December 16, 1985 to February 15, 1985, February 16, 1986 to April 15, 1986, April 16, 1986 to June 15, 1986 and June 16, 1986 to July 15, 1986. But none of the occasions, she was communicated by the Regional Food Controller, Kanpur either to sanction leave or to reject the same. Subsequently, a notification dated May 28, 1986 was issued by the opposite party No. 1 in the daily newspaper. ''Aaj'' which was published from Kanpur, wherein it has been notified that the services of the petitioner was dismissed with immediate effect inter alia on the ground that the petitioner remained an unauthorisedly absent from September 16, 1985 leaving her local residence without informing her new address.

Learned Counsel for the petitioner submits that in the notification dated May 28, 1986, it was also mentioned that the petitioner should rejoin her duties and she was further warned that in case of not complying with the directions given in the News Paper steps may be taken for terminating her services. Further, since Smt. Minoti Bhattacharya did not attend her duties nor did she sent any information after February 15, 1986 nor her local address is known and even after sending information to the petitioner at her permanent address, no intimation has been received from the petitioner and, therefore, she is being dismissed from service forthwith. He submits that the letter mentioned in the notification dated May 28, 1986, which is alleged to be sent to the permanent address of the petitioner, was never received by the petitioner.

Learned Counsel for the petitioner submits that dismissal order passed against the petitioner on the ground of unauthorized absence from duties has been arbitrarily passed in violation Rule 55 of Civil Services (Classification, Control and Appeal) Rules (as applicable in the State of U.P. insofar as prior to passing the order of dismissal, neither any charge-sheet nor any notice nor any opportunity of hearing to the petitioner, was issued to the petitioner, which is against the principle of natural justice.

On the other hand, learned Standing counsel has stated that due procedure was followed by the authority concerned and when the charge of unauthorizedly absent from duty was found proved, impugned order of termination was passed. Therefore, the assertion of the petitioner is misconceived and the writ petition is liable to be dismissed.

I have heard learned Counsel for the parties and perused the records.

On perusal of the averments made in the counter-affidavit, it comes out that no reason has been indicated as to why the petitioner has not been provided opportunity to defend her case and further it was also not mentioned that any date, time and place has been fixed by the Enquiry Officer. Thus, the disciplinary authority has violated the principle of natural justice.

Even otherwise, observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings and following the principle, the Hon''ble Supreme Court had set-aside the order of removal of the petitioner- Bhupinder Pal Singh Vs. Director General of Civil Aviation and Others,

Fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. It was also held in this case that at an inquiry facts have to be; proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence.

In Kashinath Dikshita Vs. Union of India (UOI)and Others, the Hon''ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings and following this principle.

In Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant and Others, the Hon''ble Supreme Court emphasized that fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. It was also held in this case that at in enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to given his own version or explanation about the evidence on which he is charged and to lead his defence.

In National Buildings Construction Corporation Vs. S. Raghunathan and Others, , it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.

In view of the above, the writ petition is allowed partly. The orders dated May 28, 1986 and February 9, 1994 as contained in Annexures 6 and 10 are hereby quashed. Opposite parties is directed to allow the petitioner to work on the respective post and pay her salaries and other allowances regularly.

However, liberty is reserved to the opposite parties to initiate appropriate proceedings against the petitioner in accordance with law, if they so desire.

The petitioner is also entitled for consequential benefits but as the learned Counsel for the petitioner submits that the petitioner will not claim back-wages and as such, the petitioner shall not be given back-wages.