National Aviation Company Of ... vs Ashok Kumar Parmar & Anr.
2010 Latest Caselaw 5087 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment: 09.11.2010


+      RSA No.53/2010 & C.M. No.4915/2010 (for stay)


       NATIONAL AVIATION COMPANY OF INDIA LTD.
       (ERSTWHILE M/S VAYUDOOT LIMITED)
                                        ...........Appellant
               Through: Mr.Sanjay Gupta, Advocate.

                   Versus

       ASHOK KUMAR PARMAR & ANR. ..........Respondents
               Through: Mr.Jagdeep Kishore, Advocate.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J. (Oral)

1. This second appeal has impugned the judgment and decree

dated 02.1.2010 which had endorsed the finding of the Trial Judge

dated 16.5.2009 whereby the suit of the respondent/plaintiff Ashok

Kumar Parmar had been decreed in his favour.

2. The appellant/plaintiff had filed a suit for declaration,

mandatory and permanent injunction. Plaintiff was appointed

Deputy Commercial Manager with the defendant department i.e.

M/s Vayudoot Limited with effect from12.06.1989. In June 1990 he

had applied for special leave for two years which was granted to

him for a period of one year. On 19.8.1992, the plaintiff again

applied for a 19 days leave for visiting his family in Canada. He was

accordingly proceeded to Canada where he fell sick. He sought

extension for leave by another month. His application was

accompanied by medical certificate. On reaching India he found

two letters dated 30.9.1992 and 07.10.1992 sent by the defendant

intimating him that his services had been terminated on account of

his unauthorized absence from service. By the present suit he had

challenged the legality of the aforestated letters.

3. The defendant contended that the services of the plaintiff had

been terminated validly; in terms of Clause 5(b) of his appointment

letter dated 5.5.1989 was entitled to only a 30 days notice or salary

in lieu thereof.

4. Trial Judge had framed two issues. Issues no.1 reads as

follows:

"Whether the termination of the plaintiff was illegal, arbitrary and in contravention of Clause 5B of the letter of appointment dated 05.05.1989? OPP"

5. The oral and documentary evidence was examined by the

Trial Judge. Court held that the letters dated 30.9.1992 Ex.PW-1/9

and 7.10.1992 Ex.PW-1/10 had been served upon the plaintiff at his

Delhi address when the defendant very well knew that he had gone

to Canada; termination of the plaintiff in such circumstances was

illegal, arbitrary and against principles of natural justice. He was

held to be in continuous service entitled to all back wages and

other consequential benefits.

6. This judgment was endorsed by the first Appellate Court on

02.01.2010. The relevant extract of the aforenated findings read

as follows:

9. It is worthwhile to mention here that it has been well established on record of the case that address of the plaintiff in Canada was already on record of the defendant company. This fact finds support in Ex.PW1/3 which is a letter dated 07.6.1990 written by the defendant to the plaintiff wherein the plaintiff was asked to intimate his leave address of Canada for official record. In the leave application Ex.PW1/5 for family travel to Canada w.e.f. 24.08.1992 to 11.09.1992, written by the plaintiff the address while on leave is stated to be as per records. It is the admitted case of the appellant/defendant company that the alleged notices for termination dated 30.09.1992 and 09.10.1992 were sent at the local address of the plaintiff. Assuming for the sake of argument that the plaintiff proceeded on leave w.e.f. 24.08.1992 to 11.09.1992 without sanction of a competent authority, yet the defendant company was well aware of the fact that the plaintiff had left for Canada on leave for 11 days. The sending of aforesaid letters at the local address was a mere formality and superfluous considering the fact that the plaintiff was in Canada at the relevant point of time. In all fairness, the defendant to show its bona fide ought to have sent the letters in question at the available address of the plaintiff in Canada. As per Clause 5(b) of the appointment Letter, firstly it was incumbent upon the defendant to issue a notice giving 30 days notice to the plaintiff or salary in lieu thereof. The notice dated 30.09.1992 directed the plaintiff to report for duties within seven days from issuance of the said letter. The defendant ought to have sent the letter at the address in Canada, therefore, the plaintiff cannot be presumed to have known the contents of the letter and consequently to comply with directions to join duties by 07.10.1992. No opportunity was given to the plaintiff to show cause against the contemplated action of the defendant. It is also pertinent to note that the defendant appellant did not examine any person who had dealt with the plaintiff and had knowledge of the facts of the case. The defendant appellant could have very well examined Mr.Cecil Jackson to corroborate their stand that the leave was not sanctioned by the competent authority as it was Mr.Jackson who as commercial Manager had sanctioned the leave of the plaintiff. DW-1 Shri Nitin

Asthana admittedly did not deal with the case of the plaintiff before 2002. This witness was also evasive in giving answers during his cross-examination.

10. It is the case of the appellant that the plaintiff voluntarily abandoned the services of the defendant company as he remained absent without leave for more than ten days. In the alternative, it has been argued on behalf of the defendant that the plaintiff/respondent is also guilty of misconduct as per Rule 16(60) of Vayudoot Conduct, Discipline and Appeal Rules, 1989, wherein absence without permission for more than eight consecutive days, tantamount to misconduct. However, vide its own rules, the defendant was under a bounden duty to hold an enquiry against the plaintiff. Non-holding of such enquiry is in clear violation of "Audi Alteram Partem Rule" which is essence, enforces the equality clause of Article 14 of the Indian Constitution. It is nobody‟s case that the plaintiff was not a permanent employee of the company. Vide letter dated 07.6.1990, the probation period of the plaintiff was extended by six months which accordingly ended on 07.12.1990. The plaintiff/respondent has placed reliance on a case titled Delhi Transport Corporation Vs. DTC Mazdoor Congress & Others reported as AIR-1991 -SC-101, wherein Hon‟ble Supreme Court has examined the power to terminate services of a permanent employee without holding enquiry, wherein it was held that:-

"The authority to terminate the services of a permanent and confirmed employee by issuing a notice without assigning any reason in the order and without giving any opportunity of hearing to the employee before passing the impugned order, is wholly arbitrary, uncanalised and unrestricted violating principle of natural justice as well as Article 14 of the Constitution.

Government company or public corporation being State instrumentalities are State within the meaning of Articles 12 of the Constitution and as such they are subject to observance of the fundamental right embodied in para-3 as well as to confirm to the directives principle in para-4 of the Constitution.

It is now well settled that the „audi alteram partem‟ rule which is essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule 1 Rules of natural justice do not supplant but supplement the Rules and Regulations.

The rights of the Government Companies and Public Corporations which are State instrumentalities

within meaning of Article 14 and their employees cannot be governed by the general principle of master and servant, and the management cannot have unrestricted and unqualified power of terminating the services of the employees."

11. Even if it is assumed for the sake of argument that the respondent plaintiff was illegally absent without any reason, he was entitled to be given notice to show cause as to why he should not be held to have voluntarily abandoned his service.

12. In this view I am supported by a judgment of the Hon‟ble Supreme Court reported as JAI SHANKER VS. STATEMENT OF RAJASTHAN AIR 1996 SUPREME COURT 492 which applies on all fours to the instant case. In this judgment the Hob‟ble Apex Court has held that "No doubt the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but it cannot order a person to be discharged from service without at least telling him that they proposed to remove him and giving him an opportunity of showing cause why he should not be removed........ A removal is removal and if it is punishment for overstaying one‟s leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it."

13. In the absence of this, I have no manner of doubt to hold the impugned letters dated 30.9.1992 and 09.10.1992 as illegal and non-est.

14. I do not find any reason to interfere with the impugned order dated 16.05.2009 passed by the Learned Trial Court. Accordingly the appeal is dismissed."

7. This is a second appeal. On behalf of the appellant, it has

been urged that the judgment of the Trial court is illegal and

arbitrary. The parties had entered into a memorandum of

settlement (page 160 of paper book) on 12.09.1996. In terms of

the aforenoted settlement, the management had conceded to take

back the plaintiff and he had been permitted to rejoin the duties

but the issue with regard to the wages was to be decided by the

Court; the Trial Judge had framed a specific issue i.e. issue no.1

relating to the contravention of the terms of the appointment letter

i.e. Clause 5(b) but no discussion has emanated on this score.

Findings of both the Courts below are perverse. The plaintiff at

best could have been awarded only a 30 day salary in lieu of his

termination and nothing more. He was governed by terms of this

appointment letter which has been illegally ignored by the Courts

below.

8. Arguments have been countered.

9. This appeal is yet at its initial stage i.e. on its maintainability.

Only a substantial question of law arises can this Court interfere

and not on any other count. In the body of the appeal the

questions of law have been formulated on page 5 which are 12 in

number. They have been termed as questions of law and not

substantial questions of law which is the mandate of Section 100 of

the Code. On this ground alone these questions of law are liable to

be rejected. However, on the perusal of the said questions of law

as formulated, there is not even one which can be termed as a

substantial question of law. They are reproduced and inter alia

read as follows:

"1. Whether the First Appellate Court committed an error in law by not considering that the Appellant had "voluntarily abandoned the services" of the Respondent and no notice of termination was required?

2. Whether the First Appellate Court committed an error in law by ignoring the fact that extension of leave could have been obtained only during the subsistence of the leave and not post facto i.e. after the expiry of the leave?

3. Whether the First Appellate Court committed an error in law by ignoring the fact that there was no material on record to show that the alleged leave/extension of leave of the Respondent was sanctioned by the Competent Authority of the Appellant?

4. Whether the First Appellate Court was justified in dismissing the RCA No.09/2009 on the ground that the letters dated 30.09.1992 and 09.10.1992 were not sent at the Respondent‟s address in Canada?

5. Whether the First Appellate Court committed an error in law by not considering the fact that in terms of clause 5(b) of the appointment letter dated 05.05.1989, the respondent if at all entitled was entitled for 30 days salary only in lieu of the notice period.

6. Whether the First Appellate Court was justified in dismissing the RCA No.09/2009 on the ground that no opportunity was given to the Respondent to show cause the contemplated action of the Appellant?

7. Whether the First Appellate Court has wrongly held that the Appellant was under a bounden duty to hold an enquiry against the plaintiff in terms of Vayudoot Ltd. Service Rules?

8. Whether the First Appellate Court erred in law in relying on the judgment titled "Delhi Transport Corpn. Vs. D.TC. Mazdoor Congress" [AIR 1991 SC 101]?

9. Whether the First Appellate Court erred in law in relying on the judgment titled "Jai Shanker Vs. State of Rajasthan: [AIR 1966 SC 492]?

10. Whether the First Appellate Court was justified in dismissing the RCA No.09/2009 on the ground of limitation?

11. Whether the First Appellate court was justified in dismissing the RCA No.09/2009 on the ground that it was not filed by duly authorized person?

12. Whether the First Appellate Court erred in law in not relying on the judgment titled "Central Co-operative Bank Ltd. vs. Shibbulal & Ors." [AIR 1988 MP3]?"

10. The vehement contention of the learned counsel for appellant

that the respondent could not have been entitled for wages of more

than 30 days in terms of Clause 5(b) of the appointment letter

dated 05.05.1989 is a misunderstanding.

11. Admittedly, parties had voluntarily entered into a

memorandum of settlement dated 12.9.1996 vide which the

plaintiff had been permitted to rejoin his services. It is not in

dispute that after rejoining the service in the year 1996, the

plaintiff has been promoted to a Manager thereafter as Senior

Manager, Chief Manager and he lastly retired as Deputy General

manager. He retired in on 30.6.2008; he was given all promotional

benefits. He was held entitled to promotion only after giving him

benefit of continuation of service for the intervening service w.e.f.

1992-1996 when he was not on duty.

12. Clause 2 of the memorandum of understanding reads as

follows:

"That the issue with regard to wages during his absence shall be

decided by the Court in which the aforesaid Suit No.434/93 is

pending, i.e. if the suit decreed in favour of Shri Parmar, he shall

be entitled to the consequential reliefs given by the Court."

This clause would be rendered redundant if the submission of

the learned counsel for the appellant is accepted. The question of

wages had been left open to be decided by the Court. Both the

Courts below had given concurrent finding of fact holding that the

termination of the plaintiff in terms of the termination letters

Ex.PW-1/9 and Ex.PW-1/10 was illegal and arbitrary; in this

scenario, the question of the applicability of Clause 5(b) did not

arise. The plaintiff had been permitted by the defendant to rejoin

his services in 1996 and he was deemed to be in continuous service

for the gap period i.e. from 1992 to 1996 i.e. how he had been

granted his promotions.

13. This Court is not a third fact finding court. The oral and

documentary evidence ha been examined in an indepth detail by

the two fact finding Court below. Clause 5(b) of the appointment

letter dated 05.05.1989 was rightly not adverted to as the

termination of the service of the plaintiff was itself held to be

illegal.

14. No question of law much less any substantial of law has

arisen. Appeal as also the pending application is dismissed in

limine.

(INDERMEET KAUR) JUDGE NOVEMBER 9, 2010 nandan