R.K. Shewaramani vs Indian Drugs & Pharmaceuticals ...
2002 Latest Caselaw 472 Del

JUDGMENT

S.B. Sinha, C.J.

1. The services of the petitioner were terminated by an order dated 08.01.1991 purported to be in terms of Rule 30(A) of the IDPL, Conduct, Discipline and Appeal Rules, 1978 (hereinafter referred to as 'the said Rules').

2. It is not in dispute that the first respondent herein is a 'State' within the meaning of Article 12 of the Constitution of India (in short, 'the Constitution'). The writ petitioner herein at the material time was a medical Representative working under the first respondent. He was a joint convenor of the trade union from the very beginning and, according to him, he, thus, became eye sore of the management, who had been looking forward for an opportunity to victimize him.

3. He was transferred from Delhi to Eluru in the State of Andhra Pradesh by an order dated 17.06.1989. Allegedly a number of office bearers and active members of the Union had been transferred. Such a stand, according to the petitioner, had been taken to break down the trade union and to teach a lesson to the officer bearers thereof.

4. Inter alia on the ground that the petitioner had not joined his transferred post, a charge sheet was issued on 27.09.1989. He asked for a copy of the said Rules on 16.11.1989, 03.01.1990 and 22.01.1990. He allegedly visited the Regional Sales Manager's office to collect charge sheet No. IDP/MD/Vig./1(30)/89 dated 12.12.1989. The Deputy Personnel Manager by a letter dated 25.01.1990 expressed surprise as to how the petitioner being an educated employee was not aware of the provisions thereof. However, he was allowed to peruse the said Rules in the Corporate Office on 30.01.1990. According to the petitioner, although he visited the office, a copy of the said Rules was not given to him. He thereafter wrote a letter on the same date to the Senior Commercial Manager.

5. Yet again by a letter dated 17.02.1990, the petitioner alleged that although in terms of the direction, he had met Mr. R.K. Bhatia, he had refused to give a copy of the said Rules. He also met Mr. K.V. Pai, the Disciplinary Authority personally on 28.02.1990 and asked for a copy of the said Rules, which was denied to him.

6. In the disciplinary proceedings, one Shri M.N. Bhalla, Personal Manager was appointed as an Inquiry Officer and one Shri Balbir Singh was appointed as a Presenting Officer. The Presenting Officer according to the petitioner was not an employee of the management and was well conversant with the legal procedures and formalities. The petitioner asked for assistance of an outsider but the same was denied to him.

7. The petitioner requested the Disciplinary Authority to postpone the enquiry till he receives a copy of the relevant rules, but the same had not been acceded to. He, however, attended enquiry on 18.05.1990 and 06.06.1990.

8. On 07.06.1990, the petitioner was given only a copy of new Rule 30(A) of the said Rules, which came into force w.e.f. 30.03.1990, but allegedly the copy of the entire said Rules had not been served on him, wherefor he again by his letter dated 22.06.1990 made requests to Mr. K.V. Pai, the Disciplinary Authority. He again wrote to one Shri M.N. Bhalla for copy of the said Rules by a letter dated 22.07.1990.

9. On 28.07.1990, the petitioner wrote a letter to Mr. M.N. Bhalla to disclose to him as regards qualification of the Presenting Officer, but no reply thereto was given. The petitioner was served with minutes of the proceedings held on 30.07.1990 in respect of charge sheets served on him on 27.09.1989 and 12.12.1989 wherein he was also present. He again had asked for copy of the said Rules and particulars of the Presenting Officer on 07.08.1989.

10. Finally, a copy of the said Rules was served on him on 10.09.1990.

11. On 11.09.1990, the petitioner received a letter from Mr. M.N. Bhalla in connection with charge sheet dated 12.12.1989, which was replied to on 20.09.1990 by the petitioner. On 24.09.1990, the petitioner by a letter addressed to Mr. K.V. Pai filed his reply to the charge sheet dated 27.09.1989. The petitioner again wrote a letter dated 13.10.1990 to Mr. K.V. Pai with respect to explanation sent earlier vide letter dated 24.09.1990.

12. On 02.01.1991, the petitioner received a letter to attend enquiry in relation to charge sheet dated 27.09.1989, which reads thus:-

"No. IDP/GRG/PM/90/1

INDIAN DRUGS & PHARACEUTICALS LTD.

GURGAON PLANT

Dated 2nd January, 1991

Shri R.K. Sheraramani,

Medical Representative,

Flat NO. 16(C),

L.I.G. Flats,

Ashok Vihar (Phase IV),

New Delhi.

Sub:- Department proceedings against Shri R.K. Shewaramani, Medical Representative.

Ref:- Controller, Medical Services Memo No. IDP/MD/Estt. 11(1545)/90 dated 20.12.1990

The next hearing on the above captioned enquiry is fixed on 11.1.1991 at 11 AM in the office of the Regional Manager, IDPL Regional Office, Kapashera, New Delhi. You are hereby directed to attend the proceedings Along with your defense Assistant and produce your defense on the date and time fixed failing which the proceedings will be held ex-parte and will continue DE DIE IN DIEM.

As proceedings have already been delayed, you are requested to kindly cooperate and arrange to produce your defense.

(M.N. BHALLA)

PERSONNEL MANAGER &

INQUIRING AUTHORITY"

13. Thereafter, the impugned order dated 08.01.1991 was passed, which is as follows:-

"Shri R.K. Shewaramani, Medical Representative, functioning under the IDPL Regional Office, Delhi was transferred to the IDPL Regional Office, Hyderabad vide Order No. IDP/MD/HO/2(20) /89, dated the 15th June, 1989. He was relieved from the IDPL Regional Office, Delhi w.e.f. 19.6.89 vide letter No. IDP/RSO/D/1100/79/223, dated the 17th June, 1989. Instead of complying with the lawful and reasonable orders of the Management, the said Shri Shewaramani M.R. applied for leave. Later on he extended his leave on the grounds that his father was unwell. He was advised vide letter No. IDP/MD/HO/2 (226)/89, dated 8th August, 1989, to report to his new place of posting viz. Hyderabad within 10 days of the receipt of that letter. In reply Shri Shewaramani vide his letter dated 21.8.89 informed that he was on indefinite strike w.e.f. 16.8.89. Thus the said Shri Shewaramani has been on unauthorized absence since then and has not reported for duty to the new place of posting viz. Hyderabad till today.

2. The said Shri Shewaramani was issued a show-cause-notice vide memo No. IDP/MD/Estt.1(1545)/90/ 764, dated the 7th June, 1990 and was asked to explain within 15 days of the receipt of the Memo as to why action should not be taken against him under Rule 30 (A) of the IDPL Conduct, Discipline & Appeal Rules, 1978. A copy of the IDPL Conduct, Discipline & Appeal Rules, 1978 was also supplied to him vide letter No. IDP/MD/Estt.1(1545)/90, dated the 10th September, 1990.

3. The said Shri Shewaramani failed to send any satisfactory reply to the show-cause-notice issued to him vide Memo dated the 7th June, 1990. Since he has been continuously absent from duty unauthorisedly, his case was placed before the Screening Committee consisting of Director (PP&C) and Director (Finance). The Committee after going through the records of the case recommended that the services of Shri Shewaramani be terminated under Rule 30(A) of the IDPL Conduct, Discipline & Appeal Rules.

4. The undersigned agrees with the recommendation of the Screening Committee and terminate the services of Shri R.K. Shewaramani, Medical Representative with immediate effect under Rule 30(A) of IDPL Conduct, Discipline & Appeal Rules, 1978.

14. It is not in dispute that two disciplinary proceedings were being held against the petitioner and were pending at the time when the impugned order was passed which is the subject matter of the writ petition.

15. In para 14 of the writ petition, the petitioner has stated:-

"14. That the respondent Corporation appointed Mr. M.N. Bhall, Personnel Manager of the respondent as the Enquiring Authority to enquire into the charges and Sh. Balbir Singh, a retainer of the respondent Corporation, as management representative vide letter dt. March 12, 1990, a copy of which is annexed as Annexure P - 23 . For both the chargesheets i.e. chargesheet dt. 27/9/89 and 12/12/89, the proceedings of the enquiry was held on 18.5.90 and the second hearing had taken place on June 6, 1990. Then the petitioner suddenly received a letter dated June 7, 1990 of the respondent Corporation stating that there is a change in the CDA Rules and a new rule Rule 30(A) has been introduced. The petitioner was asked to give explanation why further proceedings be not done against him in terms of the amended rules. A copy of the letter dt. June 7, 1990 of the respondent Corporation by which the amended rules of April 24, 1990 were sent, is enclosed as Annexure P-24. In response, the petitioner wrote a letter dated June 22, 1990 asking for the copy of the approval of the Board of Directors for amendment of the CDA Rules which is allegedly 30.3.90 in 173rd Meeting. The petitioner also challenged the legality, validity and justification of this amendment of the Rules. A copy of the letter dated June 22, 1990 of the petitioner is annexed as Annexure P - 25 to this petition. The information as asked by the petitioner was not given by the Corporation till date. However, for the first time, after eleven month, of the petitioner perpetually asking for the copy of the rules, he has been provided with the copy of the rules on Oct. 19, 1990. To the information of the petitioner and also to the Association, the rules which were now supplied by the respondent Corporation vide letter dated Oct. 19, 1990 were not in existence in past and have been created in the meantime. Further, to the information of the petitioner till date no appropriate legal and valid authenticity and approval of these rules is in existence with the respondent Corporation. The petitioner also wrote a letter dated 31/7/90 asking for the information regarding the management representative of the respondent Corporation, Shri Balbir Singh in the enquiry proceedings, specially, regarding his relationship with the respondent Corporation and qualification. The same was required because the petitioner submission to the Enquiry Officer and to the respondent Corporation was that the petitioner ought to be given the right of representation of a person of his choice. Mr. Balbir Singh was not the employee of the respondent Corporation but an outsider and well versed with the procedure and conducting of the enquiry and as such for a fair opportunity of defense, the petitioner should also be given permission to have a representative of his choice may be an outsider in terms of the laws laid down by the Supreme Court in the case of Board of Trustees of the Port of Bombay v. D.R. Nadkarni, . However neither the reply to the petitioner letter was given nor he was allowed by a representative of his choice and the respondent wanted to hold one side imbalance proceedings."

16. The aforesaid contentions have been replied to by the respondents in the following terms:-

"(xi) The contents of para 14 are matter of record and need no reply except that as regards the appointment of Shri Balbir as Presiding Officer, it is stated that he was an employee of the respondent company. Even otherwise, now any objection relating to Shri Balbir Singh's appointment has lost its meaning as the services of the petitioner were not terminated on the basis of enquiry into of the two chargesheets issued to him. His services have been terminated on account of unauthorized absence from duty exceeding 30 days under Rule 30(A) of the aforesaid rules."

17. The only question, thus, which arises for consideration in this writ petition, is as to whether the services of the petitioner could be terminated in terms of Rule 30(A) of the said Rules.

Rule 30(A) of the said Rules reads thus:-

"30(A) Notwithstanding anything contained to the contrary in any other rules, the services of any employee shall be terminated by the Company if:-

(a) his post is abolished;

(b) he is declared on medical grounds to be unfit for service in the Company; or

(c) he remains on unauthorized absence for thirty days or more.

Explanation.

1. In a case of (a) & (b) above, the services shall be terminated after giving three months' notice to a permanent employee and one months' notice to a temporary employee or pay in lieu thereof in both the case;

2. In the case of (c) above, services of an employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of receipt of the Show Cause Notice by him. The Management shall be empowered to take a decision without resorting to further enquires.

3(a). The decision in case of (c) above would be taken only with the prior approval of a Screening Committee of 2 Directors/Executive Director to be constituted for this purpose by the Chairman & Managing Director.

(b) The reasons for the decision would be recorded in writing.

These rules are made effective with effect from 30th March, 1990."

18. The learned counsel for the respondents inter ali submitted that having regard to the fact that notices had been served upon the petitioner, the requirement of the said Rules must be said to have been complied with and as such the termination of services of the petitioner cannot be said to be illegal. Strong reliance in this connection has been placed on Pyare Lal Sharma v. Managing Director, Jammu & Kashmir Industries Ltd. and Ors., Therein the Apex Court was considering the provisions of Regulations 16.14 of the J&K Industries Employees Service Rules and Regulations, which was in the following terms:-

"9. Regulation 16.14 of Jammu & Kashmir Industries Employee Service Rules and Regulations before amendment was as under:

"The service of the permanent employee shall be terminated by the company, if (a) his post is abolished or (b) he is declared on medical grounds to be unfit for further service after giving three months' notice or pay in lieu thereof. For similar reasons the service of a temporary employee also be dispensed with after giving him one month's notice or pay in lieu thereof."

The above quoted regulation 16.14 was amended on April 20, 1983. Amended regulation is as under:

"16.14. The services of an employee shall be terminated by the Company if:-

(a) his post is abolished, or

(b) he is declared on medical grounds to be unfit for further service, or

(c) if he remains on un-authorized absence, or

(d) if he takes part in active politics.

In the case of (a) and (b) above the services shall be terminated after giving three months' notice to a permanent employee and one month's notice to a temporary employee or pay in lieu thereof.

In the case of (c) and (d) above the services of an employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of issue of notice. The management shall be empowered to take a decision without resorting to further enquires.

By order of the Board of Directors."

19. The Apex Court held that the said Regulation is not arbitrary stating:-

"17. We see no arbitrariness in Regulation 16.14. The Regulation has been framed to meet four different eventualities which may arise during the service of a company employee. Under this regulation services of an employee may be terminated (a) if his post is abolished or (b) if he is declared on medical grounds to be unfit for further service or (c) he remains on unauthorized absence or (d) if he takes part in active politics. In the case of (a) and (b) three months notice to a permanent employee and one month notice to temporary employee or pay in lieu thereof is to be given. In case of (c) and (d) a show cause notice, to explain his conduct satisfactorily, is to be given. So far as grounds (a) and (b) are concerned there cannot be any objection. When a post is abolished or an employee is declared medically unfit for further service the termination is the obvious consequence. In the case of abolition of post the employee may be adjusted in some other post if legally permitted. Ground (c) has also a specific purpose. "Remains on un-authorised absence" means an employee who has no respect for discipline and absent himself repeatedly and without any justification or the one who remains absent for a sufficiently long period. The object and purport of the regulation is to maintain efficiency in the service of the company. The provision of show cause notice is a sufficient safe-guard against arbitrary action. Regarding ground (d) "active politics" means almost whole time in politics. Company job and active politics cannot go together. The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds (c) and (d) in Regulation 16.14 concerning the employees of companies / corporations / public undertakings is within the competence of the management."

However, in that decision itself, it was held :-

"21. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only Clauses (a) and (b) relating to abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorized absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorized absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The show cause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the show cause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorized absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma. It is basic principle of natural justice that no one can be penalized on the ground of a conduct which was not penal on the day it was committed. The date of show cause notice being April 21, 1983 the unauthorized absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of amendment of regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside."

20. In the instant case, the petitioner was transferred from Delhi to Eluru (Hyderabad) vide a letter dated 17.06.1989. He was charge-sheeted inter alia on the ground that he was on indefinite strike and thus failed to maintain absolute integrity and acted in a manner unbecoming of a public servant and thereby violated Rule 4(ii) and (iii) and Sub-rules (5), (6), (20), (23) and (28) of Rule 5 of the said Rules.

21. Yet again of 12.12.1989, the following charge sheet was issued against the petitioner:-

"Statement of Articles of charges against Shri R.K. Shiwaramani, Medical Representative, IDPL - Regional Office, New Delhi.

ARTICLE-I

While functioning as Medical Representative in IDPL - Regional Office, New Delhi, during the years 1987 to 1989, Shri R.K. Shiwaramani purchased Shop No. 3, Express Market H - Block Shopping Complex, Ashok Vihar, Delhi in partnership with one Shri G.G. Shiwaramani, for a sum of Rs. 62,400/- in March, 1987, from M/s. Express Properties (P) Ltd., HS-38, Kailash Colony Market, New Delhi without bringing the transaction to the knowledge of and obtaining the permission of the competent authority.

ARTICLE-II

Said Shri R.K. Shiwaramani made his minor children viz. Master Gaurav and Miss Sujata the partners in a partnership firm with Shri G.G. Shiwaramani and Smt. Sarla Devi, to own a Chemist's shop in the name and style of M/s. Ramesh Medicos on the above cited Shop No. 3, Express Market, H - Block Shopping Complex, Ashok Vihar Phase - I, Delhi, without reporting this fact to the competent authority.

ARTICLE - III

Said Shri R.K. Shiwaramani has been taking part directly on indirectly in registration, promotion or management of M/s. Ramesh Medicos, a Chemist's Shop in the above said Shop No. 3, Express Market, H - Block Shopping Complex, Ashok Vihar, Delhi.

By his aforesaid acts of omissions and commissions, the said Shri R.K. Shiwaramani, failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a public servant thereby violated Rule 4(1)(i), (ii) and (iii) of IDPL Conduct, Discipline and Appeal Rules, 1978 and committed misconducts listed in Sub-sections (5), (19), (20) and (21) of Rule 5 of the said Rules. He has also violated the provisions of Rule 13(1) and (2) and 16(1) of the said Conduct, Discipline and Appeal Rules, 1978."

22. The amendment by way of insertion of new Rule 30(A) was made on 24.04.1990. During pendency of the disciplinary proceedings only the petitioner was served with the following notice dated 07.06.1990:-

" INDIAN DRUGS & PHARMACEUTICALS LTD.

HEAD OFFICE, GURGAON

IDP: MD:Estt.1(1545)/90:764

Dt.: 7.6.90

REGISTERED A.D.

MEMORANDUM

Shri R.K. Shewaramani, Medical Representative Regional Office, Delhi was transferred to Regional Office Hyderabad vide H.O. Order No. IDP:MD:HO.2(20)/89 dated 15th June, 89. He was relieved from Regional Office Delhi vide Office Letter No. IDP:RSOD:1100/79/223 dated 17.6.89 w.e.f. 19.6.89.

Instead of complying with the lawful and reasonable orders of the Management, the said Shri Shewaramani applied for medical leave. Later on, he extended his leave on the grounds that his father is unwell. The said Shri Shewaramani was informed vide our letter No. IDP:MD:HO.2(226)/89 dt. 8th Aug., 89 that as he has failed to repot for duty at his new place of posting he has thus willfully disobeyed the lawful orders of the management. Through this letter he was /given/also of the final chance to report at his new place of posting within 10 days of the receipt of this letter. In reply to this letter the said Shri Shewaramani vide this letter dated 21.8.89 took the plea that he is on indefinite strike w.e.f. 16th Aug., 89. Shri Shewaramani has till today not reported for duty to his new place of posting and is thus on unauthorized absence.

Accordingly, the said Shri Shewaramani is hereby directed to explain within 15 days of the receipt of this letter the reasons for his continued defiance of the orders of the Management and to show cause as to why further proceedings in terms of IDPL Corporate Office Letter No. IDP/7(32)/Estt./90 dt. 24.4.90 should not be initiated against him.

(K.V. PAI) MARKETING SERVICES CONTROLLER"

23. In the said notice, it had not been contended that the earlier disciplinary proceedings were dropped. It had also not been pointed out that the said notice was in terms of amended Rule 30(A) of the said Rules and was not in continuation of the earlier two charge sheets. Even after service of the said notice, the petitioner had been served minutes of charge sheet dated 27.09.1989 and 12.12.1989 of the proceedings held on 30.07.1990. He had been asked to attend enquiry on 02.01.1991 to be held on 11.01.1991.

24. In the aforementioned situation, we are of the opinion that the impugned order cannot be said to have been passed bona fide. In our opinion, Rule 30(A) of the Rules was not applicable in the instant case as the two disciplinary proceedings against the petitioner had been pending at the relevant time and, in any event, the same was related to the period prior to coming into force of Rule 30(A) of the said Rules, which cannot be said to have any retrospective effect. The impugned action, therefore, is wholly illegal and without jurisdiction. The said order is also mala fide.

25. For the reasons aforementioned the impugned order cannot be sustainable, which is accordingly get aside. However, this order shall not preclude the respondents from proceedings with the departmental proceedings against the petitioner.

26. The writ petition is, therefore, allowed with costs, Counsel's fees assessed at Rs. 5000/-.