Delhi High Court
University Of Delhi vs Suresh Chand on 13 December, 2006
Equivalent citations: 138(2007)DLT459
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 17th October, 2003, passed by learned Labour Court, Delhi.
2. Briefly, the facts relevant for purposes of deciding this writ petition are that the the respondent was working as a chowkidar with the petitioner with effect from 25th March, 1983. Due to his frequent absenting from duty for long periods without any permission, he was given adverse entries in his Confidential Report for the years 1989, 1990 , 1991 and 1992. He was also issued memo for remaining absented from work without any intimation and without any prior permission on 22.2.1991, 16.6.1991, 5.4.1991, 11.2.1992, 24.2.1992, 13.4.1992, 11.5.1992, 11.6.1992, 07.4.1994, 17.11.1994, 24.10.1995 and 6.3.1995.
3. The respondent did not turn up for duty from 10th April, 1995 onwards and did not make any leave application or sent any intimation about the reasons for his absence for duty. The respondent was absenting from duty with effect from 10th April, 1995. The petitioner sent memos to the respondent about his unauthorized absence and calling upon him to join duty dated 28.4.1995, 6.6.1995 and 6.7.1995 but the respondent did not join on duty. Thereafter, the petitioner sent notice/memo dated 16.8.1995 to the respondent, referring to the earlier memos and called upon the respondent to explain the reasons for unauthorized absence and to show cause why action should not be taken against him in accordance with the University Rules. He was given 10 days' time to sent his explanation. No response was received from the respondent. The petitioner sent a memo dated 26th October, 1995, asking the respondent to explain the reasons of his absence without leave and to show cause why disciplinary action regarding his termination in accordance with the University's Rule No. 49(2)(5) be not taken. The respondent submitted his reply to memo dated 16.8.1995 vide his letter dated 1.12.1995 and along with the reply, he sent a medical certificate issued by a private doctor dated Nil and fitness certificate issued by the same doctor dated 30.11.1995, certifying that he was fit to resume duty from 1.12.1995. However, on 1.12.1995, the respondent did not report for duty. The petitioner sent another memo dated 12.2.1996, again directing the respondent to show cause as to why period of absence from 10th April, 1995 to 30th November, 1995 should not be treated as unauthorized absence constituting the break in service making him liable for action under Rule 49(2)(v). He was also informed that he continued to remain absent till that date and had not reported to Chief Medical Officer, W.S. Health Centre, as directed earlier. He was asked to show cause as to why, due to this failure, strict action for termination of his services should not be taken in accordance with Rules. The respondent failed to respond to this memo and did not report for duty or to the Chief Medical Officer. The petitioner sent another notice dated 20.3.1996, directing the respondent to report to Chief Medical Officer or to assume duty within 10 days. Since the respondent did not respond to the memo, the petitioner invoked provisions of Rule 49(2)(v), University, Non-Teaching Staff, Termination and Conditions of Service Rules, 1971, treating the respondent absconding from service with effect from 1.12.1995 and informing the respondent about this vide letter/ memo dated 15.4.1996. The respondent raised an industrial dispute about such termination and the same was referred to the Tribunal in following terms:
Whether termination of services of Shri Suresh Chand with effect from 1.12.1995 vide memo dated 15.4.1996 by the Management is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this regard.
4. The respondent, in his statement of claim, took the stand that he had produced a medical certificate for the period from 10.4.1995 to 30.11.1995 along with a letter dated 1.12.1995 to Mr. Rathi, Security Officer on 1.12.1995 but he declined to take these documents. He then appeared before the Deputy Registrar and showed these documents to officials of Establishment-II under his directions. He kept waiting till evening but he was not asked to join duty. In the evening, when he was returning home, he sustained injuries in the third finger of his left hand and his finger had to be amputated. Initially, he started getting treatment from a private doctor and when he could not recover, he went to LNJP Hospital on 30.12.1995 for his treatment and L.N.J.P. Hospital issued him medical certificate from 30th December, 1995 to 8.3.1996. He went to the management on 9.3.1996 with medical certificate, but the management refused to take him on duty. The management terminated his services vide letter dated 15.4.1996. He sent demand notice to the management on 16.6.1996.
5. The Tribunal considered that unauthorized absence of the respondent from duty was a misconduct and it was the duty of the management to give charge sheet to the workman and conduct an enquiry against the workman following the principles of natural justice and to afford an opportunity of being heard to the workman. But the management did not issue any charge sheet nor conducted any enquiry and invoked Rules 49(2)(v) of the Rules and terminated the services of the workman because of continuous absence of 90 days. The Tribunal observed that the management was to ascertain whether there was willful absence of the workman from duty or he was restrained from performing his duty due to some inability. The management did not ascertain the reasons of absence of the workman from his duty and did not give him an opportunity of being heard. The Tribunal observed that there was violation of Section 25F of the Industrial Disputes Act and termination of the respondent amounted to retrenchment without following the Rules and thus meaning of Section 2(oo) of the Industrial Disputes Act and the pre conditions, as set out in Section 25F was not complied with. It was also observed that the workman had been in continuous service of the management for more than 240 days in one calender year and the management terminated his services without giving him notice or pay or forwarding him the wages in lieu of the retrenchment compensation. The Tribunal granted reinstatement with full back wages.
6. I have heard learned Counsel for the parties. I consider that the order of the Tribunal is not sustainable being perverse. It is now settled law that the principles of natural justice cannot be put into a straitjacket formula. The principles of natural justice are those rules which have been led by the Court for minimum protection of the rights of an individual against the arbitrary procedure that may be adopted by Judicial/quasi-judicial/administrative authority while making orders effecting the rights. These Rules are intended to prevent such authority from acting arbitrarily. Supreme Court in 2003 SCC (L&S) 507 Canara Bank and Ors. v. Debasis Das and Ors., observed as under:
Natural justice is another name for common-sense justice. Rules of natural justice are not codified cannone. 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 ideals 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.
The expressions "natural justice" and "Legal justice" do not present a watertight 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 from 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 litigant's defense.
The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. There principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of 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 but 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 at 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, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Bord of Works (1863) 143 ER 414 the principles was thus stated:(ER) p.420) [Even God himself did not pass sentence upon Adam before he was called upon to make his defense. 'Adam'(says God), 'where art thou? hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?
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.
7. In 2005 SCC L&S 785 Vice-Chairman, Kendriya Vidyalaya Sangathan and Another v. Girdharilal Yadav, the respondent was working as a principal with the petitioner and the petitioner learnt that he had annexed a caste certificate with his application showing that he belongs to OBC Category, while in fact, it transpired that he had furnished false and incorrect information for obtaining OBC certificate. The petitioner, after coming to know all these facts, issued a show cause notice to the respondent asking him as to why his appointment should not be cancelled. His appointment was cancelled after giving him hearing and after the show cause notice. The respondent filed a writ petition before this Court. This Court observed that although provisions of Article 311 of the Constitution of India were vital to the employees of Kendriya Vidyalaya but it was obligatory on the part of the petitioner to initiate an enquiry against the respondent. Mere show cause notice and considering reply did not amount to an opportunity being given to the respondent. On petitioner's SLP, the Supreme Court held that keeping in view that the respondent was guilty of commission of fraud, it was not necessary to grant him further opportunity of hearing as admittedly he obtained certificate to the effect that he belonged to OBC Category, by furnishing wrong information that he was a permanent resident of Rajasthan while he was a permanent resident of Haryana. The Supreme Court allowed the appeal and observed as under:
The admitted facts remain that the respondent is a permanent resident of Haryana. It further stands admitted that at the relevant time, Ahirs/Yadavs of Haryana were not treated as OBC. It further stands admitted that the respondent obtained a certificate showing that he was a resident of Rajasthan, which he was not. It is not disputed that a detailed enquiry was conducted by the District magistrate, Kota, wherein the respondent had been given an opportunity of hearing. it is also not in dispute that he had given an opportunity to show cause as to why this appointment should not be cancelled not only by the appointing authority but also by the Appellate Authority. In terms of Section 58 of the Evidence Act, 1872 facts admitted need not be proved. It is also a well settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula. in Bar Council of India v. High Court of Kerala this Court has noticed that:(SCC p.324, paras 49-50).
" '24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta of which two of us (V.N. Khare, C.J. and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held:(SCC p.506, para 29) "29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby."
25. The principles of natural justice, it is well settled, must not be stretched too far.' (See also Mardia Chemicals Ltd. v. Union of India ) & Canara Bank v. Debasis Dass .
In Union of India v. Tulshram Patel whereupon reliance has been placed by Mr. Reddy, this Court held: (SCC p. 477, para 97) '97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed.
8. The respondent in this case continued absenting duty from 10.4.1995. Notice after notice, memos after memos were sent to him. The respondent received all the memos and notices. He did not reply to the memos nor he presented himself to the Chief Medical Office, as directed to him. He only took the plea that he was not well. A perusal of the medical certificate filed by the respondent would show that he was shown suffering from anxiety and depression. Under these circumstances, where respondent's absence was an undisputed fact and the medical certificates showed that he was suffering from anxiety and depression and it was also undisputed that he had not reported to CMO, despite a direction by the University, no further enquiry need be conducted into the facts and the only thing to be seen was the explanation of the respondent. When no explanation was came forth from the respondent despite repeated notices and memos by the University, I consider that the principles of natural justice had been sufficiently complied with by the University.
9. The respondent was governed by rules of services. Rule 49(2)(v) of the Service Rules reads as under:
Except for valid reasons and/or unforeseen contingencies, no employees shall be absent from duty without prior permission. Where an employee absents himself from duty without prior permission for a continuous period of 90 dates, he shall be treated as absconding from duty and his service be deemed as 'terminated'.
10. In terms of this Rule, the respondent's explanation only could be considered in respect of the unforeseen contingencies. Where the respondent did not reply to the notices and did not report before the CMO despite directions by the University, the only inference which could be drawn by the University was that there was no unforeseen contingency for the absence of the respondent and the respondent was unauthorizedly absent. There is another important factor. The respondent was entitled to medical facilities provided by the University. He, for his illness, did not go to panel doctor or to the doctors of the Delhi University. He obtained medical certificate from a private doctor where the illness recorded is anxiety and depression. I consider that there are very few persons today in Delhi or in India who are not suffering from one or the other anxiety or depression. If such medical certificates are acknowledged as valid medical certificates for long unauthorized absence, I consider no work can be done in any of the Government Departments. In fact, the over protectionism, which is being provided to the Government employees and other employees, has resulted into total fall in the efficiency and work culture in the Government offices. The appointment to the government services is being considered by the employees as a license to thwart the work culture and discipline of the organization. Thus the University was bound to reject such explanation and medical certificate given by the respondent.
11. The plea of the respondent that he suffered an injury while going back from the University on 1.12.2000 is of no avail because the period of absence which has been considered by the University is from 10.4.1995 to 30th November, 1995 for which there was no explanation given by the respondent. Rule 49(2)(v) has not been held to be an invalid rule. The principles of natural justice are inbuilt in this rule as the University is bound to issue notice and consider the explanation given by the employee for his absence due to unforeseen contingencies or valid reasons. The University can only give a show cause notice to the employee. The University cannot force an employee to reply to show cause notices. If no reply is given to the show cause notice, the responsibility of the University to comply with the principles of natural justices is over. If the University has acted in accordance with service rules, no fault can be found with the University. In D.K. Yadav's case 1993 3 SC 259, the Supreme Court held that Certified Standing Orders constitute statutory terms and conditions of the services and the employee is bound to such terms and conditions. Although this statement of law was doubted in Rajasthan SRTC v. V Kumar , but it was not deviated from. It was, however, made clear that the Certified Standing Orders do not stand as statutory conditions in the sense that dismissal or removal of an employee in contravention of Certified Standing Orders would be a contravention of statutory provisions enabling the workman to file writ petition for their enforcement. However, the respondent was bound by the rules of the University and the University has acted accordingly.
12. Supreme Court in UP State Bridge Corporation Ltd. and Ors. v. U.P. Rajya Setu Nigam S. Karamchari Sangh 2004 SCC L&S 637, observed as under:
D.K. Yadav is an authority for the proposition that the principles of natural justice would have to be read in the standing orders. That was a case where there was a standing order similar to CSO L-2.12 except that 8 days' margin was granted within which the workman was required to return and satisfactorily explain the reasons for his absence or inability to return after the expiry of leave. This view was reiterated in the later decision of this Court in Lakshmi Precision Screws Ltd. v. Ram Bahagat where it was held that the element of natural justice was an inbuilt requirement of the standing orders. (para 23) In this case, the appellant Corporation had issued two notices calling upon the workmen represented by the respondent to return to duty. The workmen did not respond to either of the notices. As we have noted it was not pleaded that the advertisement did not sufficiently comply with the principles of natural justice. The notice was issued giving an opportunity to the respondent to show cause why the presumption should not be drawn under CSO L-2.12. The respondent did not show cause. In the circumstances, the management drew the presumption in terms of the CSO. (para 24) The respondent said that the notice was invalid because it did not otherwise comply with CSO L-2.12 because of the shortening of the period of absence. This was not an issue raised at any stage. In any event, we do not see how the notice is not in compliance with the Certified Standing Orders as quoted earlier. (para 25) The final submission of the respondent was that U.P. IDA provided for penalty after a departmental enquiry, in respect of the workman who may have gone on illegal strike and, therefore, there could be no termination of services on account of illegal strike. The submission is unacceptable as we have said that there is no proof that the respondents were on strike at all. Besides, merely because the action is punishable does not mean that the consequence of an unauthorized absence is not available under the Certified Standing Orders if it so specifically provides. (para 26)
13. In view of my foregoing discussion, I consider that the order of the Tribunal is perverse and contrary to law and is hereby set aside. The writ petition is allowed. No orders as to costs.