Allahabad High Court
Mohd. Aslam S/O Sri Mobin Uddin vs District Magistrate And Assistant ... on 13 April, 2005
Author: Shishir Kumar
Bench: Shishir Kumar
JUDGMENT Shishir Kumar, J.
1. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 31.10.1994 passed by the opposite party No. 1 dismissing the services of the petitioner contained in Annexure 8 to the writ petition and for issuing a writ of mandamus directing the respondents not to implement the order dated 31.10.1994.
2. The facts stated in the writ petition are that the petitioner was appointed as Driver in Collectrate by the order of the District Magistrate Allahabad in the year 1980 and the petitioner was confirmed on the said post. The petitioner and three others were attached with the Head Quarter at Lucknow and the petitioner worked as Driver at Lucknow but on 1.12.1992 the petitioner was transferred to District Mau. The petitioner was relieved on 20th September, 1993 by the Assistant Director Information Allahabad. A copy of the same has been filed as Annexure No. 1 to the writ petition. The petitioner in pursuance of the relieving order dated 20th September, 1993 joined the post at District Mau on 23rd September, 1993 and performed his duties till 15.10.1993 at District Mau. After joining at Mau, the petitioner fell seriously ill and after taking leave came to Allahabad on 16.10.1993 but the petitioner was not recovered. The petitioner extended leave time to time and sent the applications the opposite Party No. 2. It has also been alleged that petitioner sent medical certificates issued on 31.12.1993 by Dr. Om Prakash Senior Superintendent Surgeon, who advised the petitioner to take rest from 25.11.1993 to 30.12.1993. Petitioner was not able to join his duties at Mau as such he extended leave till 10.7.1994 and the petitioner was under the treatment of one Dr. S.C. Sinha Medical Surgeon, who advised the petitioner to take bed rest from 3.5.1994 to 10.7.1994. The further allegation in the writ petition is that in spite of the aforesaid fact, the petitioner did not recover and started the treatment of one Dr. S.L. Dewan, Senior Surgeon, Motilal Nehru Hospital, Allahabad who also advised the petitioner to take rest for a period of six weeks from 5.10.1994. The petitioner sent leave application and also submitted a medical certificate for leave till 20.11.1994. The wife of the petitioner was working as staff nurse in Motilal Nehru Hospital, Allahabad and when the petitioner was not recovered the petitioner moved an application on 20.5.1994 to the Director of Information U.P. Lucknow with the request to transfer the petitioner at Allahabad. No orders were passed by the Director then the petitioner sent an application to the Chief Minister. It has been submitted that when the petitioner persuaded his case for transfer, the opposite party became annoyed and passed an order of dismissal from service on 31st October, 1994. It has been stated that the order of dismissal from service has not been received by the petitioner and after recovery from illness when the petitioner went to join at Mau then the petitioner was informed that his services have already been dismissed. An order of dismissal has already been sent at the old address of the petitioner. Petitioner submits that the petitioner was on medical leave and from time to time the petitioner was sending application and the medical certificates. The opposite party has not issued any show cause notice to the petitioner before passing the order of termination/dismissal. No procedure has been followed. Petitioner being a conformed employee the service of the petitioner cannot be terminated. The opposite party No. 1 has dismissed the service of the petitioner simply on the ground that the petitioner was absent from duty.
3. Notices were issued and a detailed counter affidavit on behalf of the respondents have been filed stating therein that the petitioner had been absconding from duty without any leave with effect from 15. 10.1993. It is also incorrect to say that the petitioner has ever sent any application along with the medical certificate for leave. No such application or medical certificate is available in the office of the respondent. A specific averment has been made in Para 8 of the counter affidavit that the petitioner joined the office on 23.9.1993 and proceeded on casual leave from 2.10.1993 to 8.10.1993 and reported on duty on 11.10.1993. Thereafter the petitioner absconded from duty with effect from 15.10.1993. After waiting for considerable period, several registered letters were sent to the petitioner i.e. 8.2.1994, 12.4.1994 and 6. 6.1991. But when no reply was received from the petitioner till 19.8.1994, then a notice was published in the daily newspapers 'Aaj' and 'Purvanchal Sandesh' dated 20.8.1994 by giving the petitioner last chance for his joining duty. Even then the petitioner did not turn up and then the matter was placed before the District Magistrate, Mau, who going through all the full facts have passed an order terminating the services of the petitioner from 31.10.1994. It has been stated by the respondents that the registered letters sent on the dates mentioned above were not returned back, therefore, according to the provisions of the Code of Civil Procedure, it will be presumed that the letters have been received to the petitioner.
4. Petitioner has filed a supplementary affidavit annexing the medical certificates issued by the different doctors from time to time. Petitioner submits that there was a paralytic attack, therefore, the petitioner was not in a position to report the duty and the petitioner has placed reliance upon a judgment of the Apex Court reported in 2004(4) ESC (Supreme Court), Page-520 Bhagwan Lal Arya v. Commissioner of Police, Delhi and Ors. and has submitted that the Apex Court has taken a view that absence from duty the person fell ill and was taken to home town. The services have been terminated on the ground of long absence and it has been held that the punishment of dismissal, which has been awarded i.e. disproportionate punishment. The further reliance has been placed upon a judgment reported in FLR 1996 (12) Page 191 Mafatlal Narandas Barot v. J.D. Rathod, Divisional Controller, State Transport, Mehsana and Anr. and has submitted that the termination of service on the ground of an employee absenting himself without leave and without reasonable cause and without sufficient cause failing to report when directed for duty, the termination without providing reasonable opportunity was quashed.
5. I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.
6. From the perusal of the record, it is clear that the petitioner without taking permission has absconded and has not joined the duties in spite of the fact that various registered letters were sent to the petitioner on the address, which was given by the petitioner. The case of the petitioner is that he was suffering from paralysis attack and paralysis had taken place, therefore, the petitioner was not in a position to join, appears to be false because from the document and the medical certificate, which have been annexed with the rejoinder affidavit as well as in the supplementary affidavit. Under no prescription there is a mention of paralytic stroke. The certificates of various doctors of the different dates are on record, which show that only for not joining the duties, the petitioner was in a habit in changing the doctors only to obtain the medical certificates from time to time on different dates. There is no document to show that the petitioner was ever admitted in the hospital. An OPD slip of Motilal Nehru Hospital has been filed with the rejoinder affidavit. The Court has also perused the supplementary affidavit dated 13.4.2005 and the certificates in support thereof, which have been annexed as Annexures 1 and 2 which are dated 12.4.2005, issued by Dr. Om Prakash alleged to be under treatment by the aforesaid doctor Under what circumstances, this certificate of ailment, which was being supplied by the petitioner in the year 1994-95 has been given by the said doctor on 12.4.2005. It is also noticed and surprising now the particular doctor can remember the advice and treatment of a particular person, who was being treated by the said doctor in the year 1994-95. Admittedly the treatment which was being done by the aforesaid doctor from 3.5.1994 to 4.5.1995 a certificate can be issued in the year 2005. The GAT scanning certificate, which has been annexed that is of dated 30.6.2000, which has been filed with the rejoinder affidavit. It is also noticed by the Court that the other certificates, which have been annexed with the rejoinder affidavit are of different doctors. In no certificate it has been mentioned that the petitioner is suffering from paralysis as submitted by the petitioner. Now the question for consideration before this Court is that as argued and submitted by the counsel for the petitioner is that whether the termination of service of the petitioner on the ground of the aforesaid misconduct is proportionate to the offence committed by the petitioner or not. Regarding the proportionality of the punishment it has been held that it is the total domain of the disciplinary authority. It is only the disciplinary authority, who has to award the punishment minor or major.
7. In the case of Canara Bank v. V.K. Awasthi reported in 2005(4) Supreme Court, Page-40, the Apex Court has considered regarding the concept of proportionality of punishment. It has been held that natural justice is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideal and human values. The administration of justice is to be freed from the narrow and restricted considerations, which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice, which has to determine its form.
8. The expression "natural justice" and "legal justice" do not present a water-tight classification. It is the substance of Justice, which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice for unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence.
9. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quashi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partern rule. It says that no one should he condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made by Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta ". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogage and adjudicate". In the celebrated case of Cooper V. Wandsworth Board of Works (1963 (143) ER 414), the principle was thus stated:
"Even god did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam " says God "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat. "
10. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
11. Principles of natural justice are those rules, which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
12. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed hereunder. They may be implied from the nature of the duty to be performed under a statue. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame work of the statue under which the enquiry is held. The old distinction between a judicial act and an administrative act has witered away. Even an administrative order, which involves civil consequences, must be consistent with the rules of natural justice. Expression Civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In us wide umbrella comes every thing that affects a citizen in his civil life.
13. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined. Over the years by a process of judicial interpretation two rules have been evolving as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. They constitute the basi elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria cause sua' as stated in (1605) 12 Co. Rep., 114 that is 'no man shall be a judge in his own cause.' Coke used the form 'aliquis non debet esse judex in propria cause quia non potesi esse judex at pars (Co.Litt. 1418), that is 'no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party. The form 'nemo potest esse simulactor et judex', that is 'no one can be at once suitor and judge' is also at times used, the second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at alterpars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audialteram parterm rule, manely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co. Re. 48-b, 52-a) or in other words, as it is now expressed, justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.
14. Inevitably, the conclusion arrived at by the Division Bench that there was violation of principles of natural justice cannot be maintained.
15. It is to be noted that the detailed charge sheets were served on the respondent employee why not only submitted written reply, but also participated in the proceedings. His explanations were considered and the Inquiry Officer held the charges to have been amply proved. He recommended dismissal from service. The same was accepted by the Disciplinary Authority. The proved charges clearly established that the respondent-employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the bank. In the appeal before the prescribed Appellate Authority, the findings of the Inquiry Officer where challenged. The Appellate Authority after analyzing the materials on record found no substance in the appeal.
16. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Sun interference cannot be a routine matter.
17. The proportionality of quantum of punishment has been taken into consideration by the Apex Court in various judgments.
18. In B.C. Chaturvedi v. Union of India and Ors. reported in Judgement Today 1995 (8) Supreme Court, Page 65, it was observed that "A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court Tribunal, it would appropriately mould the relief, either directing the disciplinary appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. "
19. In another case Union of India and Anr. v. G. Ganayutham, reported in Judgement Today 1997(7), Supreme Court, 572 the Apex Court has summed up the position relating to proportionality and has observed "The current position proportionality in administrative law in England and India can be summarized as follow:
(1) To Judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wedensbury test.
(2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational- in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the principles.
20. In view of the aforesaid fact, the contention raised on behalf of the petitioner is that no notice or opportunity has been given to the petitioner before passing the order of termination. From the record, it is clear that the registered letters were sent after that it was published in two newspapers but in spite of that when the petitioner has not turned up and joined his duties there was no option before the disciplinary authority to pass the order of dismissal. In such a case and in view of the Apex Court determining whether the principle of natural justice can be followed if an employee deliberately in spite of the knowledge that he is absent from duty without any permission and in spite of the sending registered letters and receiving the same by the petitioner if the petitioner does not turn up then no option is left to the disciplinary authority only to dismiss the person concerned from service. From the perusal of the record, it also appears that the petitioner has deliberately not joined the duties and as this condition was not such that he cannot visit district Mau to appear in person before the authorities concerned informing regarding the ailment. This action of the petitioner is misconduct and in my opinion the punishment, which has been awarded to the petitioner by this order dated 30.10.1994 needs no interference by this Court under Article 226 of the Constitution of India.
21. In view of the aforesaid fact, the writ petition is devoid of merits and is hereby dismissed.
22. There shall be no order as to costs.