Delhi High Court
Sugendra Paswan vs National Buildings Constructions … on 1 August, 2006
Author: S. Muralidhar
Bench: Mukul Mudgal, S. Muralidhar
JUDGMENT
S. Muralidhar, J.
1. This Letters Patent Appeal (LPA) challenges the Order dated 6th March 2002 passed by the learned Single Judge of this Court in Writ Petition (C) No. 3638/2000, by which order the learned Single Judge dismissed the writ petition of the appellant.
2. The brief facts of this case according to the petitioner are as follows:
a) The appellant was a permanent employee of the respondent No. 1 National Buildings Construction Corporation (hereinafter referred to as the ‘NBCC’).
b) On 4th October 1999, the appellant proceeded on a sanctioned leave for a period of 90 days.
c) On 22nd October 1999, the appellant was arrested in Bihar. Consequently he was taken into custody and was sent to jail. The appellant fell sick in the jail and was therefore shifted to the jail hospital and remained there up to 18th April 2000. On 18th April 2000, the appellant was released from jail.
d) On 5th May 2000, the appellant reached Guntur, where he was posted. On reaching Guntur he was informed by a letter of termination which was signed by the respondent no.2, that his services were terminated because the appellant had been been imprisoned on account of grave charges.
e) On 10th July 2000 the appellant filed the Writ Petition (C) No. 3638/2000 under Article 226 before the learned Single Judge of this Court highlighting the various irregularities committed by the respondent while terminating his services.
3. The learned Single Judge of this Court held that the writ petition of the appellant was not maintainable since show cause notice was issued on 29th February 2000 granting an opportunity of 15 days to explain why he should not be suspended. However, the appellant had not replied to the show cause notice. Accordingly, the writ petition filed by the appellant before learned Single Judge was dismissed. It is against this Order dated 6th March 2002 of the learned Single Judge, the appellant has filed the present Letters Patent Appeal.
4. The learned Counsel for the appellant submitted as follows:
(a) The Order of the learned Single Judge has failed to take into consideration that the alleged show-cause notice dated 29th February 2000 was only in respect of suspension of the appellant. But the appellant was straightaway terminated from the services by the respondent.
(b) The services of the appellant were terminated by the respondent without holding any domestic enquiry.
(c) The petitioner was admitted in jail hospital for T.B. Accordingly, the petitioner intimated to the concerned authorities that he was advised bed rest and accordingly needed some more time to join the services.
(d) The relevant portion of the alleged show-cause dated 29th February 2000 reads as follows:
Shri Sugendra Paswan is hereby informed that absence without leave for more than 10 days is a misconduct as per standing order No. 16(3)() of NBCC Standing Order which govern his services and is liable to be dismissed from the services of the corporation without notice or any compensation in lieu of notice. Further, being a government servant detained in custody on a criminal charge or otherwise, for a period of exceeding 48 hours of sentence to a term of imprisonment exceeding 48 hours is liable to be placed under suspension.
Shri Sugendra Paswan, is therefore, called upon to explain within 15 days of issue of this memorandum as to why a disciplinary action should not been taken against him for the above as per NBCC Standing Order.
The above extract clearly shows that the appellant could have been put under suspension and the disciplinary proceedings should have been initiated by the respondent. Any order including the order of termination could have been initiated only on the recommendation of the disciplinary authority.
(e) The services of the petitioner were terminated without affording him opportunity of being heard and thus the principles of natural justice had been violated.
4. The learned Counsel for the respondent submitted as follows:
(a) The appellant is a habitual absentee. His service record demonstrates that he had no sense of responsibility, had the habit of proceeding on leave regularly, overstayed the sanctioned leave and remained absent for long periods without any intimation.
(b) In the instant case, the appellant had applied for and was want granted leave for the period from 4th October 1999 to 18th October 1999 and half pay-leave from the period of 19th October 1999 to 22nd October 1999. The appellant, after the expiry of the period of leave continued to remain absent and did not report for duty.
(c) By a letter dated 12th November 1999, received by the respondent on 21st November 1999 and a letter dated Nil, received by the respondent on 26th November 1999, the appellant informed the respondent that he was not well and sought leave. The appellant did not mention the ailment from which he was suffering and neither did he attach any medical certificate.
(d) On 13th December 1999, a letter was received by the respondent from the wife of the appellant informing the respondent that the appellant was in jail since 21st October 1999. While the appellant claimed illness as a reason for non-joining his duties, the wife of the appellant stated that the appellant was in jail.
(e) The respondent wrote letters dated 3rd January 2000, 25th January 2000, 14th February 2000 and 29th February 2000 to the Superintendent of Police, Motihari, East Champaran District, Bihar. By a letter dated 27th February 2000, the police authorities informed the respondent that the appellant has been arrested on 22nd October 1999 and was since then in jail.
(f) In these circumstances, the respondent issued a show-cause notice dated 29th February 2000 to the petitioner by registered post. The said show-cause notice was returned back with an endorsement by the postman that the addressee, i.e., the appellant was in jail, and therefore, the registered letter was being returned.
(g) The appellant has misread the show-cause notice dated 29th February 2000. The said notice spoke both of suspension and termination. The appellant has also merely quoted partially from the show-cause notice. In fact, in the writ petition the appellant never referred to this show-cause notice and contended that his services were straightaway terminated.
(h) There has not been any violation of the principles of natural justice by the respondent. The services of the appellant was terminated after issuing the show-cause notice to which no reply was received by the respondent.
5. The admitted facts from the above narration are that the appellant was granted earned leave for the period 4.10.1999 to 18.10.1999 and half pay leave for the period, 19.10.1999 to 22.10.1999. After accounting for a holiday on 23.10.1999, he was expected to report for duty on 24.10.1999. The question of unauthorised absence arises for the period following 24.10.1999. It appears that on 13.12.1999 the respondent did receive from the wife of the appellant information that the appellant was in jail sine 21.10.1999. Prior to this on 21.11.1999 and 26.11.1999, the corporation had received letters dated 12.11.1999 and nil respectively from the appellant stating that he was not well. After getting the information from the wife of the appellant that the appellant was in jail since 24.10.1999, the Corporation concluded that the appellant had suppressed this material fact in his earlier letters wherein he indicated that he was not well.
6. What is significant from the copy of the letter written by the wife, a copy of which has been placed on record by the respondent-Corporation itself is the following statement:
That, my husband Sugender Paswan was arrested by police in a false Arms Act under Section 25(1-ba) 26/35 and kept in civil custody at MOTIHARI Jail and seriously ill in the Jail since 27-10-00 till date which was already informed to your honour by registered mail and telegraphically.
7. The documents placed on record by the respondent-Corporation further show that they had written to the Superintendent of Police, Motihari, Bihar on 3.1.2000, 25.1.2000, 14.2.2000 and finally on 29.2.2000 seeking information on the date of the arrest, the reason for the arrest of the appellant and the present status of the case. In the letter dated 29.2.2000 written by the respondent to the Superintendent of Police, Motihari District, the Corporation stated thus:
We have not received any information in this regard from your office so far. Being a Government of India undertaking, we have to take necessary disciplinary action against Shri Sugendra Paswan who is on unauthorised absence from 04-10-99 as per the rules of the Corporation but we are unable to proceed further, due to delay in getting the full report from your office.
8. However, without waiting for a reply to the said letters, on the same day, i.e., 29.2.2000, a memorandum was issued from the Hyderabad Zonal Office of the respondent-Corporation to the appellant at his address at Village Harnarayana, District Motihari, Bihar asking him to explain within 15 days of the issue of the memorandum as to why disciplinary action should not be taken against him for his absence without leave. It first mentions that absence without leave for more than 10 days is a misconduct and as per the Standing Orders he is liable to be dismissed without notice. This memorandum dated 29.2.2000 also mentions that as intimated by the wife of the appellant, the appellant was arrested by the Police on 27.10.99 and is in police custody and this information is contradictory to his application for extension of leave on medical grounds…. It also significantly mentioned that further being a Government servant, detained in custody on a criminal charge or otherwise, for a period exceeding forty-eight hours or sentenced to a term of imprisonment exceeding forty-eight hours is liable to be placed under suspension.
9. The Corporation fully knew by this time that the appellant had been arrested and was in police custody and, therefore, was not going to be available at his house in Village Harnarayana District, Motihari. There was no point at all in sending the notice to that address. This appears to be all the more strange when, as per its own showing, the respondent was informed by the wife of the appellant that he had been kept ‘in civil custody at Motihari Jail’ in an Arms Act case. Naturally therefore, this notice was not received by the appellant at all. Significantly in its counter affidavit filed in the present appeal, the respondent Corporation candidly states that the memorandum dated 29.2.2000 which, as noticed above was, sent to his residential address at a time when the appellant was in jail, was not served on him. The relevant portion of the said counter affidavit reads thus:
…The same was returned back with an endorsement by the postman that the addressee was in jail and therefore the registered letter was being returned. A photocopy of the said memorandum dt. 29.2.2000 and the envelope with the postal endorsement is being annexed herewith and marked as Annex R -5.
10. Thus there is no manner of doubt that the memorandum to which the appellant was supposed to reply within 15 days, was not received by the appellant. It is inconceivable for the appellant to have then replied to such a memorandum, staying in a jail in Motihari District in Bihar when he did not receive such a memorandum. This was followed by the order of dismissal dated 5.5.2000 which notes that ‘Shri Sugendra Paswan presently is in jail. Thereafter this order records the reasons for totally dispensing with any enquiry and reads as under
Since Shri Sugendra Paswan is in jail on account of grave charges against him which are punishable and his services are not available to the corporation for an indefinite period and whereas I am satisfied that it is not reasonably practicable to hold an enquiry in the manner provided under the NBCC (Discipline & Appeal) Rules, 1993, I hereby impose the penalty of dismissal from services on Shri Sugendra Paswan by dispensing away with domestic enquiry as provided under Rule 13 of the NBCC (Discipline & Appeal) Rules, 1993. Dismissal will have immediate effect.
11. Significantly even the above dismissal order was sent to the appellant at his residential address even though the Corporation fully knew that even at that stage, he was still in jail.
12. The action of the respondent-Corporation in resorting to the device of dispensing with an enquiry and inflicting the penalty of dismissal from service has to be tested on the anvil of reasonableness and fairness, in the facts and circumstances of the case. Even at the stage of issuing a memorandum dated 29.2.2000 calling upon the appellant to submit an explanation within 15 days thereof, the respondent-Corporation was not contemplating invoking the rules empowering it to dispense with an enquiry altogether. On the contrary, the memorandum dated 29.2.2000 adverted to a procedure where, in the event of the arrest of an employee for a period exceeding 48 hours, such employee would be liable to be placed under suspension. There is no explanation anywhere in the dismissal order why such a procedure was not followed and why the extreme option of dispensation of the enquiry and inflicting upon the penalty of dismissal was resorted to.
13. The entire order dated 5.5.2000 only adverts to the fact of the arrest of the appellant and his being in custody. It does not advert to his giving contradictory information in his application for extension of leave on medical grounds, as stated to in the memorandum dated 29.2.2000. Even this, we may add, may not bear scrutiny, considering the fact that while in jail the appellant was in fact unwell. The appellant stated he was receiving treatment in the Motihari Jail Hospital, Motihari till he was released from custody on 18.4.2000. Be that as it may, it is not inconceivable a person in custody was unwell and required treatment while in jail. Also the Standing Orders referred to in the memorandum dated 29.2.2000 do not appear to have been invoked while passing of the dismissal order dated 5.5.2000. The order dated 5.5.2000 indicates the reasons and mentions certain rules permitting the respondent to dispense with an enquiry. The order refers to the fact of the appellant being in jail ‘on account of grave charges against him’ and is therefore not a termination simpliciter but an order that is stigmatic with adverse civil consequences to the appellant.
14. On a conspectus of these facts we are of the view that the appellant was denied a reasonable opportunity of submitting an explanation for his absence. Being arrested in an Arms Act case and consequently in judicial custody in a remote jail in Bihar, not receiving the memorandum to which he was expected to submit a reply, are all factors that should weigh in determining the reasonableness and fairness of the action of the respondent-Corporation. If after knowing fully well that the appellant was in the jail, the respondent Corporation persisted in sending its memorandum seeking explanation from the appellant to his residential address, then it has only itself to blame if it did not receive such an explanation from the appellant within the stipulated time. Even after the memorandum sent by Regd. post was returned to it with endorsement that the appellant was in jail, the respondent-Corporation did not re-direct or re-send that memorandum to the jail where it could have been delivered to the appellant. Further, there was absolutely no justification for resorting to this extreme device of dispensing with an enquiry particularly since the nature of offence for which the appellant appears to be arrested, was not such that would have kept him in indefinite custody. Even assuming that it was not practicable to hold an enquiry at that stage, since the appellant was in jail, the respondent-Corporation could have, as contemplated in the memorandum dated 29.2.2000, first placed the appellant under suspension and then sought an explanation from him by giving him sufficient time to respond from the jail itself. The corporation seems to have been in an undue haste in getting rid of the services of the appellant and this, in our view was unfair and unreasonable, attracting the rubric of arbitrariness in the context of Article 14 of the Constitution of India.
15. The learned Single Judge has not adverted to the above fact that the appellant could not have possibly sent any reply to the show cause notice while he was in jail. Merely sending a memorandum to the appellant seeking an explanation, to his residential address where the respondent fully well knew he could not be found, cannot be construed as affording an opportunity at all.
16. For the above reasons, the order of the learned Single Judge dated March 6, 2002 is set aside. This appeal is allowed. The appellant will be reinstated on or before 1.9.2006. In the facts and circumstances of the case we deem it fit to direct that the appellant would be entitled to 25 per cent of the back wages for the period during which his services were terminated illegally, i.e., from 5.5.2000 till the date of his reinstatement.
17. The appeal stands allowed and disposed of in the above terms with no order as to costs.