1965 JTR(SC) 358
1966 AIR(SC) 1364 ; 1966 2 ALT(SC) 219 ; 1967 33 FJR 269 ; 1966 12 FLR 191 ; 1966 1 LLJ 437 ; 1966 SCD 869 ; 1967 2 SCJ 64 ; 1966 3 SCR 40 ; 1965 KLT(Online)(SC) 1391 ; 1965 KLT(Online) 1391 ; 1966 KHC 614
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, V. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.
Mafatlal Narandas Barot, Appellant
Versus
J. D. Rathod, Divisional Controller, State Transport Mehsana and another, Respondents.
Civil Appeal No. 757 of 1964.
Advocates appeared
Mr. R. Gopalkrishnan, Advocate, for Appellant; Mr. N. S. Bindra, Senior Advocate, (Mr. B. R. G. K. Achar, Advocate, with him), for Respondents.
Termination of a permanent employee for misconduct, including absence without leave, requires adherence to service regulations and principles of natural justice, specifically providing a charge sheet and a reasonable opportunity to show cause before the penalty is imposed.
Act
Referred
:CONSTITUTION OF INDIA
: Art.226, Art.227
ROAD TRANSPORT CORPORATIONS ACT: S.45(2)(c)
(A) Road Transport Corporations Act, 1950 - Service Regulations - Regulation 61 and Schedule A, Clauses 38, 40 and 4(b) - Termination of service for long absence - Misconduct - Requirement of show cause notice - Where services of a permanent employee were terminated on the ground of long absence without framing any charges or providing an opportunity to show cause - Absence without leave and failure to report for duty are classified as acts of misconduct under the regulations - Clause 4(b) specifically mandates providing a copy of the charges and statement of allegations to the employee - Termination cannot be automatic even for absence without leave - Failure to provide a reasonable opportunity to show cause contravenes the regulations and principles of natural justice. (Paras 11, 12)
(B) Principles of Natural Justice - Right to be heard - An employee is entitled to a reasonable opportunity to show cause, which includes the right to deny guilt and establish innocence, which can only be exercised when the charges and allegations are known. (Para 12)
Facts of the case:
A permanent employee of a statutory corporation was transferred to another depot. The employee applied for leave and subsequently for an extension on medical grounds, which was refused. Despite intimating continued illness with a medical certificate, the employee's services were terminated on the ground of long absence. No charge was framed, and no enquiry was conducted. The High Court dismissed the petition in limine.
Findings of Court:
The order of termination is bad in law as it contravenes the specific provisions of the service regulations and the principles of natural justice.
Issues: Whether the employee was entitled to an opportunity to show cause against the proposed punishment as required by the service regulations.
Ratio Decidendi: Since irregular attendance and absence without leave are defined as misconduct under the regulations, the authority is obligated to provide the employee with a copy of the charges and a statement of allegations before taking action. Automatic removal from service without such opportunity is impermissible.
Result: Appeal allowed.
(B) Principles of Natural Justice - Right to be heard - An employee is entitled to a reasonable opportunity to show cause, which includes the right to deny guilt and establish innocence, which can only be exercised when the charges and allegations are known. (Para 12)
Facts of the case:
A permanent employee of a statutory corporation was transferred to another depot. The employee applied for leave and subsequently for an extension on medical grounds, which was refused. Despite intimating continued illness with a medical certificate, the employee's services were terminated on the ground of long absence. No charge was framed, and no enquiry was conducted. The High Court dismissed the petition in limine.
Findings of Court:
The order of termination is bad in law as it contravenes the specific provisions of the service regulations and the principles of natural justice.
Issues: Whether the employee was entitled to an opportunity to show cause against the proposed punishment as required by the service regulations.
Ratio Decidendi: Since irregular attendance and absence without leave are defined as misconduct under the regulations, the authority is obligated to provide the employee with a copy of the charges and a statement of allegations before taking action. Automatic removal from service without such opportunity is impermissible.
Result: Appeal allowed.
Judgement
SATYANARAYANA RAJU, J. : This appeal, by special leave, is against the judgment and order of the High Court of Gujarat at Ahmedabad, dated May 28, 1963, dismissing in limine an application filed by the appellant under Art. 226 of the Constitution.
2. The facts material for the purposes of this appeal may be briefly stated. The appellant was a permanent employee of the State Transport Corporation, Gujarat, hereinafter referred to as the Corporation. At the material time he was employed as a Writer in the Visnagar Depot of the Corporation in Mehasana District. On January15, 1962, the appellant applied to the Divisional Controller, State Transport, Mehasana for leave for 15 days on the ground that he had to attend to his personal work . On January 16, 1962, he was transferred from Visnagar to Ambaji where there was a vacancy in the office of the Depot Manager. On 31-1-1962, a formal order transferring the appellant from Visnagar to Ambaji was passed and he was directed to join duty at Ambaji.
3. On that date, the appellant applied for extension of leave on medical grounds but his request was refused by an order, dated February 15, 1962. He was directed to report for duty at Ambaji within 48 hours of the receipt of notice failing which, he was warned, he would be removed from service. On March 3, 1962, the appellant wrote a letter to the Divisional Controller intimating him of his liability to join duty as he was still not well; to this letter, he enclosed a medical certificate.
4. By an order, dated March 9, 1962, the services of the appellant were terminated with effect from January 16, 1962, on the ground of long absence. The appellant made a representation to the Divisional Controller on March 17, 1962 and thereafter preferred an appeal to the General Manager of the Corporation. Both of them were rejected. A further appeal preferred by him to the appellate Committee was also unsuccessful. The Committee held that the leave applications of the appellant were made only with a view to evade joining duty at Ambaji.
5. The appellant applied to the High Court of Gujarat under Arts. 226 and 227 of the Constitution, impleading the Divisional Controller as respondent, for the issue of a writ of certiorari to quash the order of dismissal. His petition was dismissed in limine on May 28, 1963. On June 17, 1963, the appellant applied for a certificate to appeal to this Court but it was refused. Thereafter, he applied for special leave and that was granted by this Court.
6. It may be stated at the outset that the respondent is an autonomous statutory Corporation formed under the provisions of the Road Transport Corporations Act, 1950. It is not disputed that the appellant could not invoke the provisions of Art. 311 of the Constitution.
7. The short question for determination in the appeal is whether the appellant was entitled to an opportunity to show cause against the proposed punishment as required by regulation No. 61 of the Regulations which governs the service conditions of the employees of the Corporation. It is admitted that no charge was framed against him nor was he given an opportunity to show cause.
8. It is contended for the respondent that though the order of termination referred to long absence as the cause of termination, the termination itself was not by way of punishment and the only right of the appellant was to two months pay in lieu of notice under regulation No. 61, that assuming that the termination was by way of punishment, the appellant, as would be evident from the correspondence and the circumstances of the case, had been given an opportunity to show cause and that there was in fact and in substance compliance with the rules of natural justice.
9. We may, at this stage, read the relevant regulations which admittedly govern the service conditions of the employees of the Corporation. Regulation No. 61 provides as follows :
"The services of an employees, who does not hold a permanent appointment in State Transport or a lien on a permanent appointment in any Government Department from which he is transferred, are liable to be terminated by the Competent Authority by giving a calendar month s notice or a calendar month s pay in lieu :
Provided that the services of casual workers and part-time workers may be terminated without any notice:
Provided further that a permanent employee of State Transport shall be entitled to 60 days notice or 60 days pay in lieu." Clauses 38, 40 and 4 (b) of Sch. A to the Regulations provide :
"38. Irregular attendance, absence without leave and without reasonable cause and absence without permission."
40. Failure, without sufficient cause, to report, when directed, for duty, on the part of an employee to whom the leave he has applied for is refused."
"4 (b). A person against whom action is proposed to be taken for any act of misconduct, shall be provided with a copy of the charge of charges as well as a statement of allegations that have been made against him, and over which enquiry is being held."
10. Clause 3 defines two classes of offences named acts of mis-conduct and minor lapses and delinquencies, respectively, and sub-cl. (ii) of Cl. 3 states inter alia that the mis-conducts are those specified in Sch. A.
11. Regulations 38 and 40 provide 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. Clause 4 (b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry.
12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.
13. The order of termination passed against the appellant is bad in law since it contravenes the provisions of Cl. 4 (b) of the Regulations and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under Cl. 4 (b) of the regulations.
14. The appeal is accordingly allowed, but there will be no order as to costs.
Appeal allowed.
For Citation : AIR 1966 SC 1364
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