Ram Briksh Prasad vs Member-Secretary Regional Administrative Committee/Assistant General Manager/Regional Manager, U.P. Co-operative Bank Ltd. and Another

B.S. Chauhan, J.—This writ petition has been filed for quashing the order dated 13.3.2002, (Annexure-II) by which the services of the petitioner had been terminated and order dated 6.3.2003 (Annexure-V) by which his appeal against the order dated 13.3.2002 has been dismissed.

Facts and circumstances giving rise to this case are that the petitioner was placed under suspension vide order dated 25th June, 2001 initiating an enquiry on the charges of absconding, embezzelement and irregularities in purchase of the wheat. The said order was challenged by the petitioner by filing Writ Petition No. 30334 of 2001, before this Court, but no interim relief could be granted. As petitioner remained absent from duty for more than 3 months, in view of the provisions of Rule 59-B(3) of U.P. Primary Agricultural Credit Co-operative Societies Rules, 1975 (hereinafter called the Rules, 1975), he was liable to be dismissed from service without holding disciplinary proceedings. A notice was served upon him by publication in the local news paper on 9th March, 2002 that he should join the duty by 1lth March, 2002, but the petitioner neither joined the duty nor sent any information. Thus, in exercise of powers under the aforesaid Rules his service was terminated vide order dated 13.3.2002 (Annexure-II). Being aggrieved and dissatisfied he filed writ petition before this Court which was dismissed vide order dated 17.9.2002 and the petitioner was directed to exhaust the remedy of appeal under the provisions of Regulation 60 of the U.P. Primary Agricultural Credit Co-operative Societies Centralised Service Regulations, 1976 (hereinafter called ''the Regulation, 1976'')

Petitioner preferred the appeal which has been dismissed vide order dated 6th March, 2003 (Annexure-V). Hence, this petition.

Learned Counsel for the petitioner has submitted that even if the Rules 1975 provide for termination of service without holding an enquiry, it was mandatory for the respondents to initiate disciplinary proceedings and as the petitioner remained ill, the Medical Certificates could have been taken into account by the Authorities.

On the contrary learned Standing Counsel has submitted that in the instant case, the petitioner remained absconding for more than 260 days and this fact remains undisputed and un-denied. Holding an enquiry could have been a futile exercise and the orders impugned do not warrant any interference. The Medical Certificates submitted by the petitioner along with the writ petition had not been the part of the record before the authority concerned nor they are genuine and hence cannot be taken into consideration.

We have considered the rival submissions made by the learned Counsel for the parties and perused the record.

The principles of natural justice require to be considered in its correct perspective. In fact, the said principles are ingrained in the mind of every-body, thus, known as principles of natural justice and require observance. One of the fundamental principles of natural justice is Audi alterant partem, i.e., no man should be condemned unheard. In Dr. Bentley''s case, i.e., R. v. University of Cambridge (1723) 1 SC 757, the King''s Bench traced the history of principles of natural justice and observed that the first hearing in human history was given in the Garden of Eden and even "God himself did not pass sentence upon Adam, before he was called upon to make his defence.

In Painter v. Liverpool Oil Gas Light Co. (1836) 3 AC 433, it was held that a party is not to suffer in person or in purse without an opportunity of being heard.

Even, if there is no provision in the statute about giving of notice, if the order in question adversely affects the rights of an individual, the notice must be given. (Vide East India Commercial Co. Ltd.,Calcutta and Another Vs. The Collector of Customs, Calcutta, . The notice must be clear, specific and unambiguous and the charges should not be vague and uncertain. (Vide Management of Northern Railway Co-operative Society Ltd. Vs. Industrial Tribunal, Rajasthan, Jaipur and Another, . The object of notice is to give an opportunity to the individual concerned to present his case and therefore, if the party is aware of the charges or allegations, a formal defect would not invalidate the notice, unless, the prejudice is caused to the individual. (Vide Bhagwan Datta Shastri Vs. Ram Ratanji Gupta and Others, and Fazal Bhai Dhala Vs. Custodian-general of Evacuee Property, Delhi, The party should also be given a reasonable time to file reply to the charges. (Vide State of Jammu and Kashmir and Others Vs. Haji Wali Mohammed and Others,

Where a notice regarding one charge has been given, the person cannot be punished for a different charge for which no notice or opportunity of being heard was given to him. [Vide Annamuthado v. Oilfields Workers (1961) 3 AER 621 and Govindsinh v. G. Subbarao (1970) 1 GLR 897.

In Ridge v. Baldwin (1963) 2 AER 66, it was held that "the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice."

A similar view was reiterated in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others,

In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, the passport of the petitioner was impounded by the Government of India "in public interest", without according an opportunity of hearing to the petitioner before taking the impugned action. The order was found to be violative of the principles of natural justice.

In Malik Ram Vs. State of Rajasthan, the scope of hearing was confined by the Enquiry Officer only to the hearing of arguments and rejected the application of the appellant to lead oral or documentary evidence. The Supreme Court disapproved it observing that the delinquent should have been given an opportunity to lead evidence.

In Bishambar Nath Kohli and Others Vs. State of Uttar Pradesh and Others, in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet with the same. The Supreme Court held that the order stood vitiated for non-observance of the principles of natural justice.

In State of Kerala Vs. K.T. Shaduli Yusuff etc., right of cross-examination of witnesses was held to be necessary.

Thus, settled legal proposition, remain that principles of natural justice are inbuilt in the statutory rules and require observance unless the same stand excluded by the rules itself. The adjudicating authority must be impartial and without any interest or bias of any type; where the Adjudicating Authority is exercising judicial or quasi-judicial power, the order must be made by that authority and that power cannot be delegated or sub-delegated to any other Officer; the Adjudicating Authority must give full opportunity to the affected person to produce all the relevant evidence in support of his case; the Adjudicating Authority must disclose all material placed before it in the course of the proceedings and cannot utilize any material unless the opportunity is given to the party against whom it is sought to be utilized; the Adjudicating Authority must, give an opportunity to the party concerned to rebut the evidence and material placed by the other side; and in disciplinary proceedings under Article 311 of the Constitution of India against the civil servants and in cases of domestic inquiries by employers against their employees under the factory laws.

However, the principle of natural justice had to be considered in the context of the fact-situation and in view of the Scheme the Rules applicable in a particular case. If an employee, remains absent for more than a stipulated period and statutory rules or standing orders provide for automatic termination of his services in such an eventuality, without holding inquiry or giving opportunity of being heard, observance of principle of natural justice is mandatory proposition. Hon''ble Supreme Court has categorically held in a catena of decisions that a statutory rule is void if it stipulates for automatic termination of services of an absenting employee after expiry of a stipulated period. [Vide Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, Gujarat State Road Transport Corpn., and another Vs. Mulu Amra, ; D.K. Yadav Vs. J.M.A. Industries Ltd., ; Scooters India and Others Vs. Vijai E.V. Eldred, ; Uptron India Limited Vs. Shammi Bhan and Another, and Scooters India Ltd. v. M. Mohammad Yaqub and Anr. (2001) 1 SCC 61.

However, there may be circumstances where absence from duty, at the start, may not be a misconduct but absence of the employee stretches abnormally giving rise to a presumption that the employee is no more interested to continue in service or has voluntarily abandoned the job. Whether in such a case, before termination, a notice or inquiry is required ? In Jeewanlal (1929) Ltd., Calcutta Vs. Its Workmen, and State of U.P. Vs. Harihar Bux Singh and Another, the Hon''ble Supreme Court held that in such a case, "long unauthorized absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee." Being a case of abandonment of service, no notice/inquiry is required.

Similar view has been reiterated by the Apex Court in The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, and G. T. Lad and Others Vs. Chemical and Fibres of India Ltd.,

In State of Haryana Vs. Om Parkash and Another, the Hon''ble Apex Court explained the distinction between "retrenchment" and ''abandonment'' from service, observing that termination contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression ''retrenchment'' and in case, the workman does not report for duty, it would amount to abandonment of service by the employee of his free will and the employer would have done nothing, whatsoever, to put an end to his employment and therefore, the case does not fall within the meaning of ''retrenchment''.

In Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, and Aligarh Muslim University and Others Vs. Mansoor Ali Khan, the Apex Court ruled that if a person is absent beyond the prescribed period for which leave could be granted, he should be treated to have resigned and used to be in service. In such a case, there is no need to hold an enquiry or observe principles of natural justice as it would amount to useless formality.

In similar view has been taken by this Court in C.M.W.P. No. 15726 of 2003, Dr. L.M. Kazmi v. State of U.P., decided on 10.4.2003.

In The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, the Hon''ble Supreme Court observed as under :-

"Natural justice is not unruly horse, no lurking land line, nor a judicial cure all. If fairness is shown by the decision/maker to the man proceeded against, the form, features and fundamentals of such essential process, properly being conditioned by facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expanion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt- that is the -conscience of the matter."

The Apex Court has reiterated time and again that the doctrine of natural justice cannot be imprisoned within the strait-jacket of rigid formula and its application would depend upon the scheme and policy of the statute and relevant circumstances involved in a particular case. (Vide Union of India (UOI) and Another Vs. P.K. Roy and Others, ; Channabasappa Basappa Happali Vs. The State of Mysore, and Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. (2001)1 SCC 182.

In S.L. Kapoor Vs. Jagmohan and Others, the Hon''ble Supreme Court has observed, that where on admitted or undisputed facts, only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue the writ to compel the observance of the principles of natural justice as it would amount to issuing a futile writ. Similarly, in State of Uttar Pradesh Vs. Om Prakash Gupta, the Hon''ble Supreme Court has observed, that the Courts have to see whether non-observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Thus, it can be held that even if in a given case, there has been some deviation from the principles of natural justice but which has not resulted in grave injustice or has not prejudiced the cause of the delinquent, the Court is not bound to interfere. This Court does not function as a Court of Appeal over the findings of the Disciplinary Authority, rather it has limited power of judicial review to the departmental proceedings in which appreciation of evidence is not permissible. The Court can review only to correct the error of law or fundamental procedural requirements which lead to manifest injustice or Court can interfere with the impugned order if the same has been passed in flagrant violation of the principles of natural justice. (Vide Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh and other,

In Syndicate Bank (supra), the Hon''ble Supreme Court dealt with a similar case and held that where a show cause notice is served upon the delinquent employee and the employee chooses not to respond to the said notice even after expiry of the notice-period, the employer has a right to presume that the employee does not want to say anything and he is no more interested in the services of the employer. The Court observed as under :-

"It is no point laying strength on the principles of natural justice without understanding their scope of real manner. There are two essential elements of natural justice which are : (a) no man shall be a Judge in his own cause; and (b) no man shall be condemned either civilly or criminally without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements......the Bank had followed the requirement (of law)......Under these circumstances, it was not necessary for the Bank to hold an enquiry before passing the order. An enquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contend that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that enquiry was initiated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation for his absence from duty and did not report on duty within thirty days of the notice...... It is undoubtedly relevant on the principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the Bank if concerned. The conduct of Dayananda, as an employee of the Bank, had been outstanding."

In Punjab and Sindh Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214, the Hon''ble Supreme Court impliedly approved the law laid in Syndicate Bank (supra) and held that if the employee has no intention to join duty and does not turn up inspite of notice, nor gives an explanation for his absence satisfying the Management that he has not taken up another employment or avocation and that he has no intention of joining the duty, the employee will be deemed to have retired from service on expiry of the time fixed in the notice. If the employee furnishes satisfactory explanation and comes after expiry of the notice, he may be allowed to work without prejudice to the right of the employer to take action against him under the law. In such a case, termination of service will not amount to punishment but would be a discharge simplicitor from the service. The Court observed as under :-

"Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of employee from work with no satisfactory explanation thereto. The principles of natural justice cannot be examined in vacuum without reference to the fact-situation arising in the case..... It also realizes, the futility of continuation with a situation when an employee, without appropriate intimation to the Management, is playing trount. If the respondents had submitted an explanation regarding his unauthorized absence or placed any material before the Court that he did report for duty but was not allowed to join the duty, enquiry may have been initiated but not otherwise."

In Dharmarathmakara Raibahadur Aroot Ramaswamy Mudaliar Educational Institution Vs. The Educational Appellate Tribunal and Another, the Hon''ble Supreme Court observed as under :-

"Giving an opportunity or an enquiry is a check and balanced concept that no one''s right be taken away without giving him/her opportunity or when enquiry in a given case or where the statute requires. But this cannot be in a case where allegations and charges are admitted and no possible defence is placed before the Authority concerned. What enquiry is to be made when one admits violations.......In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and inspite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order."

In Aligarh Muslim University (supra), the Apex Court held that holding enquiry in a case, where there can be no answer to the charges, would be a useless formality. Similar view has been reiterated in Union of India and Another Vs. M/s. Mustafa and Najibai Trading Co. and Others, ; Dr. J. Shashidhara Prasad Vs. Governor of Karnataka and Another, M.C. Mehta Vs. Union of India (UOI) and Others, and Designated Authority Anti-Dumping Directorate Ministry Of Commerce Vs. M/s. Haldor Topsoe A/s.,

In H.C. Sarin Vs. Union of India (UOI) and Others, the Hon''ble Apex Court placed reliance upon the judgment of Lord Denning in R. v. Secretary of State for the Home Department ex-parte Mugal (1973) 3 AER 796, wherein it has been observed as under :-

"The rule of natural justice must not be stretched too far. Only too often, the people who have done wrong seek to invoke ''the rule of natural justice'' so as to avoid the consequences."

Thus, in view of the above, it cannot be held that in each and every case, non-observance of principles of natural justice would vitiate the order. It has to be understood in the context and facts-situation of each case and requirement of statutory rules applicable therein.

It is settled legal proposition that every action complained of is to be tested on the touchstone of doctrine of prejudice. [Vide Major G.S. Sodhi Vs. Union of India (UOI), ; Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., State Bank of Patiala and others Vs. S.K. Sharma, S.K. Singh Vs. Central Bank of India and Others, Rajendra Singh Vs. State of Madhya Pradesh and others, Mansoor Ali Khan (supra) and Monika Jain v. State of Rajasthan and Ors. 1998 (1) RLW71.

In K.L. Tripathi Vs. State Bank of India and Others, Hon''ble Supreme Court observed as under :-

"It is not possible to lay down rigid rules, as to when the principles of natural justice are to apply, nor as to their scope and extent......there must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with, and so on so forth."

In view of the above, the law on the issue can be summarised as under :-

"For any misconduct, the employer must initiate disciplinary proceeding as per the law and conclude the same, even if the statutory provisions provide for automatic termination of service holding an enquiry is mandatory. In exceptional circumstances where the absence from duty becomes very long and it can be assumed that the employee had abandoned the service. No enquiry is necessary as it would be a case of abandonment of service voluntarily. In a case where the fact remains undisputed and undeniable, an employee cannot submit any reply, holding an enquiry would be a futile exercise where an employee is absent from duty and he is given notice by the employer to join the duty within a stipulated period and he has thus not joined the service, no enquiry is needed for passing the order of termination. As the facts stand proved and it would be assumed that the employer is no more interested to serve."

The instant case requires to be examined in the light of the aforesaid certain legal propositions.

The petitioner has been put under suspension against which he had filed a writ petition before this Court, thus he was fully aware of the fact, that certain proceedings had been initiated against him. In that case an Enquiry Officer was appointed, he submitted the report against the petitioner and it was held that he had embezzeled an amount of Rs. 4,77,811.37 (Rupees Four Lakhs Seventy Seven Thousand Eight Hundred and Eleven and Thirty Seven Paise only). The petitioner did not attend the duty in spite of the publication of notice in the local news papers, thus in spite of the fact the enquiry had not been held against him, we fail to understand as to what reply he could have submitted and thus, it could have been an exercise in futility. Petitioner''s case stands squarely covered by the judgment of the Hon''ble Apex Court in Punjab and Sindh Bank (supra), therefore, no interference is called for. Learned Counsel for the petitioner could not explain as to how the case of the petitioner got prejudiced by not holding the enquiry.

Petitioner never informed the respondents authority regarding his illness as has specifically been mentioned by the Appellate Authority in impugned order dated 6.3.2003. The petitioner has not raised any ground, denies the finding of this fact.

So far as the Medical Certificates are concerned there is nothing on record to show that the same had ever been submitted before the authority concerned and if so filed as on what date they were submitted. More so, the said certificates seems to have been prepared at a subsequent stage. The Medical Certificate dated 7.11.2001 reads as under :

"Certified that Shri Ram Briksh Prasad VIII. Lamati, P.O. Unawal, District Gorakhpur whose signature is given below is suffering from disease Jaundice since last night and is under my treatment since, today. He is likely to be unfit for about 4 months to perform his duties without any difficulty."

Learned Counsel for the petitioner could not explain as to how the Doctor could assess that petitioner would remain unfit for about 4 months. The Certificate of Fitness is dated 30th March, 2002, thus the Medical Certificate covers the period of 4 months and 23 days. There is no explanation whatsoever for about 100 other days, as he was absent for 260 day''s, thus the certificates seem to have been got prepared at a later stage just to create the evidence and do not inspire any confidence.

In view of the above as the petitioner remained absent for about more than 8-1/2 months without any explanation and did not appear in spite of the notice by publication in the local news paper, does not deserve any indulgence of the Equity Court. The petition is accordingly dismissed. Petition dismissed.