Kamlesh Sharma vs Union Of India And Ors.
1988 Latest Caselaw 47 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) The husband of the petitioner was an employee of respondent No. 2- Bharat Heavy Electricals Limited (for short the "BHEL"). He died at a young age. Smt. Kamlesh Sharma, his widow, who is petitioner in this petition, applied for a suitable appointment in Bhel on compassionate grounds and on 5th November 1975 was appointed as a Record Clerk on daily rated basis. With effect from 13th October 1976 she was appointed as Assistant Grade I in the scale of Rs. 475-12-530-15-751 plus other usual allowances as admissible from time to time and was kept on probation for a period of one year. The petitioner satisfactorily completed her period of probation on 12th October 1977 and was regularised as Assistant Grade I with effect from 13th October 1977. The petitioner claims that in the month of April 1982 she has been attending office regularly but was not allowed to mark her attendance in Attendance Register by Sh. N. D. Kaira, Senior Manager of Bhel who is respondent No. 5 in the writ petition. From the salary of the petitioner for the month of April 1982 a sum of Rs. 110.00 was deducted. The petitioner protested by writing a letter dated 27th April 1982 to the General Manager stating that she has not been allowed to sign the Attendance Register with effect from 4th April, 1982 and requested for payment ofRs. 110.00 deducted from her salary. Mr. Kalra by letter dated 11th May 1982 informed the petitioner that her assertion that she has not been allowed to sign the Attendance Register with effect from 4th April 1982 is untrue and further stated that as she did not attend the office on 8th, 12th, and 13th April 1982 and also failed to apply for leave so that absence could be regularised, proportionate deduction of wages has to be made. It was further stated in this letter that in case her absence on 8th, 12th and 13th April 1982 is not regularised, proportionate deduction of wages shall have to be made for 9th, 10th and 11th April 1982, also, being holidays.

(2) There was also a dispute about the absence of the petitioner from office on 19th January 1982. The petitioner was claiming to be present on the said date while the stand of Mr. Kalra was that she was absent from duty. In view of this dispute the General Manager (TS) by order dated 19th April 1982 had directed the Senior Manager to conduct an enquiry to find out whether Mrs. Kamlesh Sharma was present in office on 19th January 1982 and other allied matters. The Senior Manager along with his letter dated 17/18th June 1982 submitted his report. On appraisal of the record the Senior Manager came to the conclusion that it was very difficult to come to a definite conclusion whether Mrs. Kamlesh Sharma was really present or not but by giving the benefit of doubt he concluded that she was present on 19th January 1982 as her signatures were recorded in the Attendance Register and the remarks of Mr. Kalra were given only on the next day i.e. 20th January 1982. The report said that salary for 19th January 1982 may be paid to the petitioner. This report is stated to have been accepted and salary for 19th January 1982 was paid to the petitioner.

(3) In connection with the aforesaid enquiry, the petitioner wrote a letter dated 5th July 1982 to the Executive Director of Bhel and in this letter she also stated that she was not being permitted to put her signatures in the Attendance Register with effect from 22nd April 1982.

(4) By letter dated 8th July 1982 Written by Mr. Kaira the petitioner was informed that she continues to be unauthorisedly absent from duty since 22nd April 1982. In the said letter the relevant provisions of the rule as contained in Bharat Heavy Electricals Limited (Leave) Rules was reproduced and the petitioner was directed to report for duty within a week of the date of the issue of the said letter failing which, it was stated in the Tetter, the Company shall be constrained to take action under the said Rule. The Rule quoted in this letter reads as under : "If an employee who remains absent from duty without leave or permission, or in excess of the period of leave originally sanctioned or subsequently extended and where such period of absence exceeds fifteen (15) consecutive days, he/she shall be presumed to have left the services of the company of his/her own accord without notice and his/her .name will accordingly be struck off the rolls of the company."

(5) The petitioner replied by her letter dated 15th July 1982. She described the allegations contained in letter dated 8th July 1982 as false and baseless. She claimed that she has been regularly coming to the office but has been marked absent from duty. Along with this letter dated 5th July 1982 a copy of her earlier letter dated 5th July 1982 was also enclosed.

(6) By the impugned office order dated 7th August 1982 the petitioner was informed that her name has been struck off from the rolls of the Company with effect from 9.8.1982 in accordance with the general conditions for grant of leave under Bhel (Leave) Rules as the petitioner has been absent from duty without leave or permission since 22nd April 1982 and since the said period of absence exceeded 15 consecutive days, she is presumed to have left the service of the Company of her own accord.) The petitioner represented against the order dated 7th August 1982. The petitioner was informed by Bhel by letter dated 23rd February 1983 that her case has been reviewed and taking humanitarian grounds it has been decided to re-employ her on the post of Assistant Grade I on the pay last drawn by her subject to the condition that her work and conduct will be watched fore period of one year and subject to the same being found satisfactory by the competent authority her services will be continued thereafter on-regular basis. She was also informed by this letter that all other terms and conditions of service will be as applicable to the fresh employees. This was, of course, not acceptable to the petitioner. The petitioner by this petition under Article 226 of the Constitution has challenged the order dated 7th August 1982.

(7) The short question for determination in this petition is about the validity of the impugned order dated 7th August 1982 passed in exercise of the aforesaid rule.

(8) It is a common ground that no charge was framed against the petitioner, neither any enquiry was instituted nor was she given an opportunity to substantiate her contentions that she has been regularly attending the office. It is apparent from the narration of facts that there was a serious dispute between the parties as to whether the petitioner was absent for a period exceeding 15 consecutive days. According to the impugned order the petitioner was absent from duty since 22nd April 1982 and such period of absence exceeded 15 consecutive days, some of the documents filed by the respondents themselves demonstrate that the petitioner did attend the office after 22nd April 1982. One such document is a note dated 3rd May 1982 which states that :- "Mr. Kamlesh Sharma is not marking her attendance from 26th April onwards till date i.e. 3rd May 1982, though she attended office in the morning, except 29th April when she attended office at 10.15 a.m. The attendance for 27th has been recorded by Mr. A.K. Jain, Engineer and from 28th to 30th by Shri B.S.Sindhu, Foreman as I was on tour to Ennore and Trichy during these days. As per circular she has been marked absent for all these dates. She is leaving office daily in the afternoon between 2.00 to 2.15 p.m. of her own without any permission slip."

(9) The aforesaid note sent by Mr. Kalra falsifies the stand about her absence from 22nd April 1982. Even the reply dated 11th May 1982 sent to the petitioner to her letter dated 27th April 1982 only states about her not having attended the office on 8th, 12th and 13th April 1982 and does not state that she was absent from 22nd April 1982. The petitioner claims that she regularly attended the office. The respondents deny it.

(10) In this petition under Article 226 of the Constitution it is not necessary to determine whether in fact the petitioner was absent from duty or net for a period exceeding 15 consecutive days. The only question requiring determination is whether the petitioner was afforded a reasonable opportunity or not and whether principles of natural justice have been complied or violated. The petitioner was entitled to a reasonable opportunity to substantiate her contention that she has been regularly attending the office. The respondent's reliance upon the aforesaid rule is wholly misplaced. The presumption of leaving the services of the Company on own accord Ob account of absence from duty for period exceeding 15 consecutive days without leave or permission in the rule is obviously reputable. It is open to an employee to contend that the employee was not absent for a period of 15 consecutive days. In this case the petitioner was seriously disputing this vital fact. She throughout claimed that she has been regularly attending the office. After the receipt of reply dated 15th July 1982 it was obligatory on the respondents to afford a reasonable opportunity to the petitioner to show that she has been regularly attending the office, It was not, done. No enquiry was held. No one went to the question whether the contention of the petitioner was right or not. Instead the impugned order was passed. The petitioner was a permanent employee of BHEL. She had a right to her substantive post. The operation of the rule had the effect of her losing permanent employment. By force of the rule she has been presumed to have left the services of the company of her own accord when she is not only willing to continue in service but has been contending that she has been regularly attending the office. The principles of natural justice and fairplay required that she should have been given a chance to substantiate her contention. The action of the respondents is wholly arbitrary and unconstitutional. When the petitioner represented she was told that she can bore-employed as a fresh employee; will be on probation; will lose all her seniority from the date of regular appointment and will have to be subject to all other terms and conditions as applicable to the fresh employees. This approach, to say the least, was wholly illegal and -unjust. The opportunity to be afforded to an employee has to be real and not illusory. The petitioner was not afforded a reasonable or real opportunity and as such I would quash the order dated 7th August 1982.

(11) In JaiShankar v. State of Rajasthan , the State in support of an order of termination of services of an employee, relied on Regulation 13 of the Jodhpur Service Regulations which provided that "an individual who absents him self without permission or who remains absent without permission for one month or longer after the expiry of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority" and contended that the regulation operated automatically. The question that fell for consideration for Supreme Court was whether the State could have recourse to Regulation 13 without affording a reasonable opportunity to the employee. Answering this question in the negative, the Supreme Court held that an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. Again, the Supreme Court in Devki Nand Prasad v. State of Bihar held that an order of termination of service passed under Rule 76, Bihar Service Code, on account of the servant's continuous absence for 5 years without giving an opportunity to the servant under Article 311(2), would be invalid, in State of Assam and others v. Akshaya Kumar Dev 1975(2) S.L.R. 430, the Supreme Court while reiterating the necessity to give a reasonable opportunity to the employee, again cited with approval the cases of Jai Shankar and Devki Nand Prasad (Supra). Shri Q.D. Gupta, learned counsel for the petitioner, for the purposes of this petition, did not seriously challenge the constitutional validity of the Rule although the learned counsel did refer to a decision of this Court in Ajaib Singh v. D.S.I. D.C.& others, I.L.R.1984 (Vol, 2) Delhi Page 734 In Ajaib Singh's case, the constitutional validity of Rule 26 of Delhi State Industrial Corporation (Staff Service) Rules, 1978, was challenged. Rule 26 provided that the management may terminate the services of any employee, other than the Managing Director, at any time by giving him notice in writing for a period not less than that prescribed in Rule, 25, if the Management in its considered opinion is satisfied that it is expedient to terminate the service of such employee on account of various contingencies mentioned in the said rule. One of such contigency, mentioned in the rule is 'non-availability of the service arising out of prolonged irregular absence without permission of the management or any other reasons". Rule 26 was declared ultra vires of Article 14 of the Constitution by my brother S.S. Chadha J., audit was held that "A power which excludes the rule of natural justice in the matter of termination of service of an employee in public employment is itself bad, even though the exercise of power is conditioned".

(12) However, in view of my conclusion that the order of termination dated 7th August 1982 is arbitrary, invalid and is liable to be quashed, I do not consider it necessary to go- into the question of constitutional validity of the Rule in question particularly when it has not been seriously challenged in this petition.

(13) The next question is as to what relief should be given to the petitioner in the facts and circumstances of this case. Ordinarily on quashing of the order of termination I would have directed the reinstatement of the petitioner with full back wages and other consequential benefits. Undoubtedly the petitioner is entitled to be reinstated and I order accordingly. With regard to back wages it may be noticed that while deciding a miscellaneous application (CM 1540/83) a Division Bench of this court by order dated 25th May 1983 recorded that on the intervention of the Bench the learned counsel for the respondent has agreed that the petitioner can join the post pursuant to the offer dated 23rd February 1983 subject to the final determination of the rights in the writ petition. The petitioner was directed to report for duty to the respondent within two weeks from the date of the order. It was further ordered that pending hearing of the petition, the petitioner shall not be posted out of Delhi. Inspite of the aforesaid order the petitioner did not report for duty. She filed another miscellaneous application (CM 1986/83) during the pendency of the writ petition. In the said application the petitioner made a grievance that she should not be asked to join duty in Hyderabad Guest House and be allowed to join her previously held post in Spares and Service Division of Bhel at Barakhamba Road, New Delhi. The Division Bench by order dated 15th July 1983 dismissed this application a frivolous. Inspite of the aforesaid orders the petitioner did not join duty. In view of the fact that the petitioner did not join duty on her own accord, it would be unjust if the respondents are directed to pay back wages to the petitioner, for the period from June 1983. Had the petitioner joined duty she would have obviously received her pay and allowances. She cannot refuse to join duty and still claim wages for the said period. For the aforesaid reasons the petitioner will not be entitled to receive any payment towards pay and allowances for the period from June 1983 up to the date of this order. The petitioner will, however, be entitled to all other consequential benefits for this period as well except pay and allowances.

(14) For the reasons stated above, I would allow the writ petition and make the rule absolute in terms of the directions given above. In the facts and circumstances of the case, I will leave the parties to bear their own costs.