Delhi High Court
Sh. Anil Chuttani vs The Oil & Natural Gas Corporation on 26 April, 2010
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) 2606/1999
% Date of decision: 26th April, 2010
SH. ANIL CHUTTANI ..... PETITIONER
Through: Ms. Purnima Maheshwari, Advocate
Versus
THE OIL & NATURAL GAS CORPORATION ..... RESPONDENT
Through: Mr. R.G. Srivastava, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? yes
2. To be referred to the reporter or not? yes
3. Whether the judgment should be reported yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner by this writ petition impugns the office order dated 5th November, 1996 of the respondent ONGC, deeming the petitioner to have resigned from the services of the respondent ONGC with effect from 25th November, 1995 and striking off the name of the petitioner from the rolls of respondent ONGC with effect from the said date, for the reason of unauthorized absence from duty with effect from 28th August, 1995. The petitioner, prior to instituting this petition, made a representation to the respondent ONGC but to no avail. Notice of this petition was issued on 29th April, 1999 and accepted by the counsel for the respondent ONGC who appeared on advance notice. Rule was issued on 24th March, 2000. The respondent ONGC in its counter affidavit, filed WP(C) 2606/1999 Page 1 of 10 to the writ petition, has pleaded that the office order dated 5th November, 1996 (supra) impugned in this petition was issued in accordance with regulation 14(5) of the ONGC Leave Regulations, 1995. The said Regulation 14(5) is as under:-
"Where an employee fails to resume duty on the expiry of the period of extraordinary leave if the leave granted to him is the maximum that can be granted or where an employee is granted a lesser amount of extraordinary leave than the maximum admissible under this Rule, remains absent from duty for any period which, together with extraordinary leave so granted, exceeds the limit upto which he could have been granted leave under this Rule, he shall be deemed to have resigned his appointment and shall accordingly cease to be in the employment of the Company, unless the Company may determine otherwise, in view of the exceptional circumstances of the case."
2. The counsel for the petitioner has referred to:
(i) Delhi Transport Corporation Vs. Delhi Administration MANU/DE/0910/2000 where a Single Judge of this Court in relation to a similar provision in the regulations of DTC held that unauthorized absence by an employee could only be treated as misconduct and it is incumbent upon DTC to hold an appropriate enquiry after serving charge-sheet upon the workman. Reliance was placed on D.K. Yadav Vs. J.M.A. Industries Ltd. (1993) 3 SCC 259 & Uptron India Ltd. Vs. Shammi Bhan (1998) 6 SCC
538. Regulation 14(10)(c) of the DTC which was same as the Regulation 14(5) (supra) of respondent ONGC, was held to be not valid.
WP(C) 2606/1999 Page 2 of 10
(ii) Ram Phal Vs. Union of India MANU/DE/0918/2008 where another Single Judge of this Court similarly dealt with Regulation 14(10)(c) of DTC.
3. The counsel for the respondent ONGC has opposed the writ petition. It is contended that the petitioner was an Executive Engineer with ONGC, posted at an off-shore rig, work whereon goes on round the clock. It is contended that the petitioner remained on unauthorized leave for 387 days of which he gave reasons for only 182 days of absence and did not give any reasons for the balance 205 days of absence. It is contended that telegram filed as Annexure-R1 calling upon the petitioner to join duty and further informing him that upon his said failure, appropriate action shall be initiated, was sent to the petitioner. It is further contended that upon receipt of the telegram (Annexure-R2) from the petitioner for extension of leave, memorandum dated 18th November, 1995 (Annexure-R3) was issued to the petitioner to show cause as to why action in accordance with the Regulations should not be taken against him. It is further contended that though in response to the aforesaid memorandum another response was received from the petitioner but another memorandum dated 8th March, 1996 also was issued to the petitioner to show cause as to why he should not be deemed to have resigned in accordance with Regulation 14(5) supra. It is argued that on 13th August, 1996 public notice was issued in the newspaper in this regard and only thereafter the office order dated 5th November, 1996 deeming the petitioner to have resigned was made. The counsel for the respondent ONGC thus contended WP(C) 2606/1999 Page 3 of 10 that it is not as if no opportunity of being heard was given to the petitioner before passing the office order impugned in this petition.
4. In the present case, the respondent ONGC does not dispute receipt of communications from the petitioner stating the reasons for his absence and seeking extension of leave. Regulations 14(5) supra though providing for deemed resignation, also provides "unless the Company may determine otherwise in view of the exceptional circumstances of the case". It was put to the counsel for the respondent ONGC as to who determined whether the reasons stated in the communications received from the petitioner constituted exceptional circumstances or not. In this regard, it may be stated that the order dated 5th November, 1996 is absolutely silent in this regard. It neither refers to the communications stating reasons and seeking extension of leave received from the petitioner nor records that no exceptional circumstances within the meaning of Regulation 14(5) supra existed. It was put to the counsel for the respondent ONGC, whether any enquiry into the exceptional circumstances was conducted by the respondent ONGC. The answer is in the negative. All that the counsel for the respondent ONGC conceded was that the respondent ONGC is willing to hold an enquiry now if so directed by the Court. It is further contended that the conduct of the petitioner is not befitting of a responsible officer. Attention is also invited to Regulation 14(2) which provides for extraordinary leave of not exceeding three months only.
WP(C) 2606/1999 Page 4 of 10
5. I find that the Regulation 14(5) of the respondent ONGC relying whereon the name of the petitioner was struck off from the rolls has been the subject matter of S.K. Bansal (Dr.) Vs. Union of India MANU/DE/0684/1998. A single Judge of this Court held that the respondent ONGC could not dispense with the services under the said Regulation without giving an opportunity to explain and further held that the question of imposing punishment would arise only after sufficient opportunity is given. The action taken by the respondent ONGC against the petitioner in that case was set aside and the respondent ONGC was directed to issue show cause notice to the petitioner in that case in accordance with law and decide the issue after complying with the principles of natural justice and then decide the imposition of penalty. The petitioner in that case was also held entitled to subsistence allowance as per rules from the date of the order of deemed resignation to the date of the final order to be passed by ONGC. Not only this Court but the Gujarat High Court in ONGC Vs. D.C. Shukla MANU/GJ/0108/ 1999 also held the aforesaid Regulation 14(5) to be violative of Articles 14, 16 & 21 of the Constitution of India and directed reinstatement of the employee in that case with 60% back wages.
6. It is unfortunate that the respondent ONGC failed to cite the aforesaid judgments directly dealing with the matter in controversy. The respondent ONGC is expected to be fair and to place all the relevant material in its knowledge before the Court to enable the Court to come to a right conclusion. The onus / burden in this regard is more on public sector undertakings. The Supreme Court in City & Industrial Development Corporation Vs. Dusu WP(C) 2606/1999 Page 5 of 10 Aardeshir Bhiwandiwala AIR 2009 SC 571 has held that it is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties. The State and other authorities are bound to produce the complete records relating to the case once Rule is issued by the court. The government and the governmental authorities do not enjoy the same amount of discretion as that of a private party, even in the matter of conduct of litigation. Similarly the advocates particularly the advocates representing the government and governmental agencies may be reminded of what the Supreme Court held in D.P. Chadha Vs. Triyugi Narain Mishra AIR 2001 SC 457. The Supreme Court held that a lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception. A view of the law settled by the ruling of a superior court or a binding precedent even if it does not serve the cause of his client, must be brought to the notice of court unhesitatingly. The obligation of a counsel flows from the confidence reposed by the court in the counsel. The counsel, being an officer of court, ought to apprise the Judge with the correct position of law whether for or against either party. Alas! The respondent ONGC has been found wanting in this regard.
7. I find the Division Bench of this Court in Shakuntala's Export House (P) Ltd Vs. Secretary (Labour) MANU/DE/0541/2005 to have held that abandonment amounts to misconduct which requires proper inquiry. The judgment of the Single Judge of this court upheld by the Division Bench is reported as 117 (2005) DLT 479. To the same effect is another judgment of this WP(C) 2606/1999 Page 6 of 10 court in MCD Vs. Begh Raj 117(2005) DLT 438 laying down that if the workman had abandoned employment, that would be a ground for holding an enquiry and passing an appropriate order and that having not been done, the action of MCD could not have been sustained. The Supreme Court also in D.K. Yadav Vs J.M.A. Industries Ltd (supra) has held that even where the standing orders of the employer provided for dismissing the workman from service for unexplained absence, the same has to be read with the principles of natural justice and without conducting domestic inquiry and without giving an opportunity of being heard, termination of service on the said ground cannot be effected. The same view was reiterated in Lakshmi Precision Screws Ltd. Vs. Ram Bahagat AIR 2002 SC 2914 (in this judgment Sakattar Singh mentioned below was distinguished). Recently, in V.C. Banaras Hindu University Vs. Shrikant AIR 2006 SC 2304 it was held that although laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of Constitution of India; if the action is found to be illogical in nature, the same cannot be sustained. It may however be noticed that subsequently in Punjab & Sind Bank Vs. Sakattar Singh MANU/SC/0733/2000 it was held that no inquiry may be conducted where the standing orders of the Bank provided a procedure for treating such absentee employee to have deemed to have voluntarily retired after a particular period of unauthorized absence. To the same effect is the recent dicta in The Regional Manager, Central Bank of India Vs. Vijay Krishna Neema AIR 2009 SC 2200. The Regulation 14(5) of the respondent ONGC does not provide a procedure and WP(C) 2606/1999 Page 7 of 10 thus cannot be saved even on the basis of the said judgments. Further the action of respondent ONGC is found to be illogical and not complying with principles of natural justice.
8. As far as the argument of the respondent ONGC of having issued memorandum / show cause notice to the petitioner is concerned, to my mind, issuance thereof during the time when the petitioner has been expressing inability to join employment was a mere lip service. A hearing ought to have been given to the petitioner after the petitioner was in a position to attend the same. Moreover, even if it were to be held that opportunity had been given to the petitioner, the fact remains that the explanations furnished by the petitioner in his communications in response thereto, giving reasons for absence and seeking extension of leave have not been considered. As aforesaid, the impugned order dated 5th November, 1996 is absolutely silent in this regard. The principle of natural justice of giving an opportunity of being heard is not to be an empty or abstract exercise. Giving of an opportunity of hearing has a corresponding obligation to deal with the representations and to give reasons for the decision. An opportunity of hearing would be meaningless and its purpose would be frustrated, if the authority giving the hearing does not consider the representations of the noticee or does not give any reasons for agreeing or disagreeing with the noticee. Not only is it a part of the principles of natural justice but is also implicit in the Regulation 14(5) supra. The said regulation permits ONGC to deem the employee to have resigned "unless company determines otherwise in view of the exceptional circumstances of the case". WP(C) 2606/1999 Page 8 of 10 None in the respondent ONGC has carried out the said determination. The principle requiring reasons to be given in support of an order is a basic principle of natural justice and it must be observed in its proper sprit and mere pretence of compliance with it would not satisfy the requirement of law (see Maruti Udyog Ltd. Vs. Income Tax Appellate Tribunal MANU/DE/1460/2000 and Assistant Commissioner Vs. Shukla & Brothers MANU/SC/0258/2010).
9. The order of the respondent ONGC impugned in this petition thus cannot be sustained. The question which however arises is, of the relief to be granted. I have considered whether this Court should now direct the respondent ONGC to hold an enquiry, as also suggested by the counsel for the respondent ONGC or whether an order for reinstatement of the petitioner with back wages and all consequential benefits be made. Considering that about 15 years have elapsed, neither option is found suitable / appropriate. I also feel that considering the nature of functions of the respondent ONGC and of the petitioner as an Engineer, it would also not be in the fitness of things to reinstate the petitioner in as much as the petitioner without having the experience of the last 15 years in the affairs of the respondent ONGC may become senior to others who have in the interregnum worked for respondent ONGC. It was thus put to the counsel whether the petitioner is willing for compensation. The counsel for the petitioner has given the consent therefor.
10. On enquiry, it is informed that the petitioner is now about 40 years of age. He worked for ONGC from 1985 till 1996 i.e. approximately about 11 years. WP(C) 2606/1999 Page 9 of 10 Respondent ONGC at least immediately after the judgments (supra) of this Court and the Gujarat High Court dealing with Regulation 14(5) (supra), ought to have dealt with the present case in accordance therewith. Had the respondent ONGC done so, it would not only have gained an officer with 11 years of experience in its employment but would have also saved the costs of litigation and/or payment of damages to the petitioner. Accordingly, the petition is allowed. Considering all the said facts, I deem the damages / compensation in lieu of reinstatement, back wages, benefits, subsistence allowance etc. in the sum of Rs.5,00,000/- to be appropriate. The respondent ONGC is directed to pay the said amount within six weeks hereof failing which it shall incur simple interest at 7% per annum. The petitioner is also awarded costs of Rs.20,000/- of this petition payable with the compensation aforesaid.
RAJIV SAHAI ENDLAW (JUDGE) 26th April, 2010 gsr WP(C) 2606/1999 Page 10 of 10