W.P.(C)/7761/2003 of KUNDAN LAL Vs INDIAN RED CROSS SOCIETY & ANR

IN THE HIGH [COURT ][OF ][DELHIAT ][NEW ][DELHI!, /]

l@(Cl No.7761/2003 [& ][CMs No.13378/03. 331/2004]

KUNDAL I^A.L..... PetitionerThrouglr Mr. [V.K. ][Shati ][with]Ms. SoniaArora, Advs.

versus

INDIAN RED [CROSS ][SOCIETY ][& ][ANR.... ][Respondent]Througlr l\llr. N.K. [Kaul, ][Sr. ][Adv.]with Mr. Anish [DaYal, ][Adv. ][for]No.l [attd?]Respondents

Date of Hearing: March [11' 2005]

Date of Decision:March [16.2005]

CORANI:HON,BLE MR. ]USTICE [VIKRANIA]IT ][SEN]

1. Whetherreporters [of ][local papers ][maybe ][allowed]to see the Xludgment? to see the Xludgment?

2. To be refenedto [ttre ][Reporterornot? ]'/

3. lrVhether the iudgment [should ][be ][reported ][in]./iudgment [should ][be ][reported ][in]./the Digest? Digest?

l. 6 this Writ Petition it [has been prayed ][ttrat ][the ][Order ][dated]24.6.2002 imposing [punishment ][of ][forfeitr:re ][of ][one ][increment with]cumulative effect as well [as ][the ][transfer ][of ][the ][Petitioner ][from ][the]National Headquarters [to ][Arakonam, ][Tamil ][Nadu be ][quashed; ][the Order]

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dated 3.9.2000 terminating the services of the Petitioner be quasNa-dathe Petitionerbe reinstated with all consequential benefits.2. The first incident which has been narrated in the petition and reliedupon pertains to the Respondent's Memorandum dated 15.5.2002,bringing to the notice of the Petitioner that he had been 'arrogant andindecent', and 'rude and defiant' in his behaviour to his superior, ColonelA.S. Budhiraia. T?rereafter, by Memorandum dated 30.5.2002 otheralleged misconducts were brouglrt within the scope of the Inquiry. In myview it would be superfluous to go into the details for the reason that thePetitioner has admitted all ttrese charges, attributing his misbehaviour tomental strain due to domestic problems. He had expressed his regret andhad requested ttrat he be given another drance. The Letter/Order dated24.6.2002 was passed in this background. Flercising leniency, it rrvasdecided to forfeit one increment with cumulative effect and hissuspension was revoked. The Petitioner rnras simultaneously transferredand posted as LDC to Arakonam Warehouse. He was further informedthat his beha-viour and performance would be watched closely atArakon.am Headquarters and that if there was any further recunence ofnrisconduct it would be viewed and action would be taken.seriously against him. By letter dated L.7.2002 the Petitioner had been directed tovacate the official accommodation within one month.wP(C) No.7761l2003Page?of 1212

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3. Mr. Shali, learned counsel forthe Petitioner, has contended thdt'-tLretransfer was, ttrerefore, obviously in the nature of punishment; that atransfer is not permissible punishment; and that this Order stoodvitiated onthe application oflegalprinciple of double jeopardy.4. The Petitioner had' addressed letter dated 26.7.2002 prayingtherein that he was prepared to join duties at Arakonam Headquartersprovided he is paid sum of Rs.21,0001- from his Provident FundAccount. lhe request was acceded to. By ttre Respondents letter dated5.8.2002 the Petitioner was informed that since he was not obeying theOrders, his senrices were liable to be terminated on 8.8.2002. However, byhis letter dated 9.8.2002 the Petitioner informed the Respondent that hehas purchased railway ticket to join duties atArakonam Warehouse butcould not undertake the ioumey because of ill-health. Keeping in view thePetitioner's resolute failure to report for duty at Arakoram the SecretaryGeneral of the Respondent eventually terminated the employment of thePetitioner with effect from 3.9.2002. Mr. Shali has contended that as noInquiry has been conducted and the Petitioner was not grven adequateopportunity to show cause, principles of natr:ral justice havg beenviolated, thereby creating sufficient gror:nd for quashing of the Orders. Itshould be emphasised ttrat so far as the transfer Order is concerned thePetitioner had not remonstrated against it. on the contrary he hadwP(C) No.7761/2003Page3 of 12

applied for and obtained the zum of Rs.21,000/- from his Provident FundAccount, and had purchased railway ticket to r:ndergo ttre iourney. [In]his letter dated 26.7.2002 he has stated tlrat "I am [prepared ]to ioin myduty at Arakonam Warehouse forthwith provided I am sanctioned andgiven non-refundable advance of Rs.21,000/- from my P.F. Account as [a]special case to enable me to join duty at Arakonam soon". By letter dated5.8.2002 the Respondents called upon the Petitioner to Show [Cause ][why]his services should not be terminated with effect from [8.8.2002, ][byway ][of]a Final Notice. hr its subsequent letter dated 7th/Bth August 2002 theRespondent found the Petitioner's explanation unsatisfactory.Nevertheless they granted further time upto 12th August to the Petitionerto report for duty at Arakonam. His dismissal/termination Order waspassed even later, on 3.9.2002. The Petitioner was grven long rope, buthe chose to hang himself with it. Principles of natr:ral iustice [take ]effectonly where miscarriage of justice occurs, as is perceived by thePetitioner himself at the relevant time. If it is raised later on, becawe oflegal advice, the complaint loses almost all its sting.As the Petitioner hadall along expressed his willingn€ss to abide by and comply with thetransfer Order, I do not consider it appropriate or necessary to [go ]into thequestion of its alleged illegality or of it being contrary to the principles ofnatual [justice.]

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hr State of ff.P. Versus Harendra Arora and Another, AIRIOOI4C2319 ttre Hon'ble Supreme Court was concemed with the non-supply ofthe krquiry Report to the delinquent officials, on whose behalf it waspleaded ttrat the principles of natural justice have been violated. This ishow the Court dealt with the issue:the krquiry Report to the delinquent officials, on whose behalf it waspleaded ttrat the principles of natural justice have been violated. This ishow the Court dealt with the issue:

Turning now to the facts of the case on han4 it has tobe seen whether ttre non-frrmishing of ttre enquiryreport the delinquent ofiicer has suffered anyprejudice. Undisputedly, after submission of enquiryreport the State Government sent show cause noticeto the delinquent pursuant to which he had showncause and DisciplinaryAuthority after considering thesaid show cause, passed ttre orderof dismissal. Itis notstand of the respondentthat in absence of ttre enquiryreport he could not submit an effective show causebefore the order of dismissal was passed. Neither fromthe order passed by the Tribunal nor ttre Htgh Court itwould appear that the respondent had raised thispoint there that he could not fiIe an effective showcause in the absence of enquiry report nor it has beenstated that in the show cause reply it was complainedthat the delinquent had not been sened with copy ofthe enquiry rcport. From these facts, it is not possibleto hold that the respondent has been preiudiced bynon -furnishing of enquiry report

6. The application for the principles of natural justice have beenconsidered in great detail in Canara Bank and Ors. vs. Shri Debasis Dasand ors., fr 2003 (3) sc 183 where ttre question of non-supply of theInquiry Report had also been raised. The Apex Court took into

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consideration the fact that at no stage had the employee pfMaprejudice and, therefore, there was no violation of principles of nah:raljustice.

7. In Nagar Palika, Nataur v. fLP. Public Services Thibunal, Luclorowand others, (1998) 2 SCC 400, the grievance that had been raised was thatan opportunity to inspect ttre records had not been glven . The Courtafter keeping into perspective the [judgment ]in The Managing llirector,ECIL v. B. Karuurakar, (1993) 4 SCC 727, found no infirmity with theprocedure since repeated opportunities and reminders for this purposehad been glven but remained unutilised Nevertheless in Narayan Baov State of Andhra Pradesh, AIR 1957 SC 737, documents had not beenproduced by the Police Officer concerned with the result that the accusedpersons did not have all necessary information for proper conduct of thedefence. T?rere can be no gainsaylng that where procedure has beenset down by statute it must be adhered to, more so where criminalproceedings are concerned, Even in those circumstances the Cor:rtfound that non compliance with statutory procedure would not havettre result.of vitiating ttre proceedings. Ttre Cor:rt, however, cautionedttrat if it is shor,rm in particular case that the omission had causedprejudice to the accused then the Cor:rt should interfere in the matter.Therefore, it is not proper to fall back on an alleged violation of naturalwP(C) No.7761l2003Page 6 of 126 of 12of 1212

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justice as an afterthought or based on legal advice. There caN'f,noinjustice where none has been perceivedorfeltbythe person concerned.B. reading of the impugned Order also leaves no ma.nner of doubtthat ttre only punisLrment that was inflicted on the Petitioner was that ofthe withholding of increment. The tansfer rnras ordered keeping theexigencies of services in view and merely because warning had beenissued to the Petitioner that he should conduct himself properly, ttratdecision does not transform itself into punishment. This is especially sosince the charges that had been levelled against the Petitioner are of aserious nafl:re, and the punishment imposed manifested lenientattitude towards him. In the event, the Petitioner has only abused thisleniency, as he has failed altogether to report for duty and has filed thisWrit Petition only when ejectment proceedings in respect of the staffquarters had been initiated against him by the Management. It isbeneficial to reproduce this extract from the decision of the Apex Court inUnlon of hrdla and Others vs. Ianardhan Debanath andAnother, (2004)4 SCC 245:

14.The allegations made against ttre respondents are ofserious nature, and ttre conduct attributed is certainlyunbecoming. [tfilhether ]there was any misbehaviour is aquestion which can be gone into in departmentalproceeding. For the purposes of effecting transfer, thequestion of holding arL enquiry to find out whetherthere was misbehaviour or conduct unbecoming of anserious nature, and ttre conduct attributed is certainlyunbecoming. [tfilhether ]there was any misbehaviour is aquestion which can be gone into in departmentalproceeding. For the purposes of effecting transfer, thequestion of holding arL enquiry to find out whetherthere was misbehaviour or conduct unbecoming of an

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\/ employee is unnecessary and what is needed [is ]\r-e--/prima facie satisfaction of the authority concerned onthe contemporary reports about ttre occurrencecomplained of and if the requirement, as submittedbylearned counsel for the respondents, of holding anelaborate enquiry is to be insisted upon the verypurpose of transferring an employee in public interestor exigencies of administration to enforce decorumand ensure probity would get frustrated. The questionwhettrer the respondents could be transferred to adifferent division is matter for ttre employer toconsider depending upon the administrativenecessities and the extent of solution for the problemsfaced by the administration.....

9. Very recenfly by Judgment dated 22.2.2005 in Mahindra and

Mahindm Ltd. v. N.B. Narm.de etc. the Hon'ble Supreme Court hadopined that ttre dismissal of Workm.Ln for use of abusive languagetowards his superior [justifies ]the termination of his employment. It tooknot€ of the fact that the Workman had been ctrargesheeted earlier andinspite of ttre gravity of his offence, he was dealt with lenienfly, therebymaking the accusation of vindictiveness wholly unjustified.

10. Mr. Shali has contended that there is dear and significantdistinction between the dismissal and termination of employmbnt andthat they cannot be viewed as synonymous of each other. It is hiscontention that ttre employment of the Petitioner has been terminatedand this is beyond the power of ttre Secretary General who can only pass

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orders of promotion, demotion, suspension, [glismlssa! ]andwithholding ofearned increment of the staff. I find no merit, whatsoever, in [ttris]zubmission. Ttrere is no justification for drawing distinction betweenthe dismissal and termination of services; Neither is Article 311 of [the]Consdhrtion attracted nor has any stahrtorily defined distinctionapplicable to the Respondent been broug[rt to my notice. In someprecedents distinction has been drawn between this legalnomenclature; termination of service has been to connote an end ofservice either by flux of time or superannuation etc., whereas dismissalhas negative and punitive attributes. If semantics have to be gone into,since the Secretary General has the power to dismiss :rn employee, ttrensuch power would always indude ttre less stringent and detrimentaldecision of termination of service. No precedent has been strornm bylearned counsel for the Petitionerin this regard- Even if these terms dealwith different situations in strict legal parlance, an employer such as theSecretary General of the Indian Red Cross Society, can scarcely beexpectedto be aware ofit.

11. It has also been contended that since the dismissal/terminationOrder has been issued by the Secretary General, she has transgressed theprinciples of natural justice inasmuch as stre has been [judge ]in her owncause. The rude behaviour, to which thd Petitioner has pleaded guilty,wP(C) No.7761l2003Page9 of 12of 1212

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had not originated against the Secretary General but was related to ttreconduct of ttre Petitioner with Colonel Buddhiraja. Retance has beenplaced on the extracted provision of Central Civil Services (Classification,Control and Appeal) Rr:les to buttress the argument that the faih:re tohold an Lrquly vitiates the termination/dismissal Orden

14. Prrocedure fs1 [| ]rnposing mafor penaldes

(1) No order imposing any of flre penaltiesspecified in Clauses (v) to (x) of Rule 11 shall be madeexcept after an inquiry held, as far as may be, in themanner provided in this Rr:le and Rule 15, or in themannerprovided by the Public Servants (lrquiries) Act,1850 [(37 ]of 1850), where such inquiry is held under ttratAct.

(2) \Alhenever ttre Disciplinary Authority is of ttreopinion that fJrere are grounds for inquiring into thetruth of any imputadon of misconduct or misbehaviouragainst Government servant, it may itselfinquire into,opinion that fJrere are grounds for inquiring into thetruth of any imputadon of misconduct or misbehaviouragainst Government servant, it may itselfinquire into,orappoint underthisn:le orunderthe provisions of thePublic Servants (Inquiries) Act, 1850, as ttre case maybe, an authorityto inquire into the truththereof.

Explanation.-Where ttre Disciplinary Authorityitself holds the inquiry, any reference in sub-rule (7) tosub-mle (20) and in sub-rule (22) to the Inquiringsub-mle (20) and in sub-rule (22) to the InquiringAuthority shall be construed as reference to theDis ciplinary Autho rity.

L2. Adequate opportr:nities were given to Show Cause against the

proposed action and the flndings of the Inquiry OfEcer were against thePetitioner. In view of his admission of guilt, and his prayer for leniency,this matter stood closed. T?rereafter, the Petitioner had obeyed thetransfer Order. An Inquiry is instituted with view to determine thewP(C) No.7761t2003Page 10 of tZ10 of tZof tZtZthis matter stood closed. T?rereafter, the Petitioner had obeyed thetransfer Order. An Inquiry is instituted with view to determine thewP(C) No.7761t2003Page 10 of tZ10 of tZof tZtZ

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d.isputed question of facts. At no point of time has it been t X#Oonthat the Petitioner had obeyed ttre tansfer Order. He had ['been]granted/afforded an opportunity to Show Cause against the terminationof his services but he had avoided service, and had on particular date,refused to accept the Notice. It would be travesty of law to expect ttreManagement to carryout full-fledged Inquiry even in thesecircumstances. The Hon'ble Supreme Court has rendered the followingopinion in Syndtcate Bank vs. General Secretary, Syndicate Bank StaffAssoc{adon and Anot}ren, [(2000) ]5 SCC 65 which is apposite in thecircumst€ul.ces of tllis case:

"16. Now what are ttre requirements of principles ofnatural justice, which are required to be observed?Ttrese are: (1) workman should know the nature ofthe complaint or accusation; [(2) ]an opportunity to statehis case; and (3) the management should act in goodfaith which means ttrat the action of ttre managementshould ei farr, reasonable and just...

17. It is no point laying stress on the principles ofnatural justice without r:nderstanding their scope orreal meaning. There are two essential elements ofnatural justice which are : [(a) ]no man shall be judge inlris ornm cause; and [(b) ]no man shall be condemned,either civilly or criminally, without being afforded anopportunity of being heard in answer to the chargemade against him. In couse of time by various judicialpronolrncements ttrese two principles of naturaljusdce have been expanded, e.5., parry must havedue notice when the tribunal will proceed; the tribunalshould not act on irrelevant evidence or strut outrelevant evidence; if the tribunal consists of severalmembers they all must sit together at all times; the

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tribunal should act independently and should not bebiased against any party; its action shouldbe based ongood faith and order (sic) and should act in [just, ]fairand reasonable manner. Ttrese in fact are [the]extensions or refinements of the main [principles ][of]natural [justice ]stated above.18. The Bank has followed the requirements of clause16 of the Bipartite Settlement. It dghtly held thatDayananda has voluntarily retired from [the ][service ][of]the Bank Under ttrese circumstances it was notnecessary for ttre Bank to hold any inquiry beforepassing the order. An inquiry would have beennecessary if Dayananda had submitted his explanationwhich was not acceptable to the Bank or contendedthat he did report for duty but was not allowed to [join]by the Bank Nothing of ttre like has happened here.Assumlng for moment that inquiry was necessitated,evidence led before the Tribunal clearly showed [that]notice was given to Dayananda and it is he whodefaulted and offered no explanation of his absencefrom duty and did not report for duty within 30 days ofthe notice as required in clause 16 of the BipartiteSettlement:"

13. Preliminary Objection concerning the maintainability of ttrepresent Writ Petition has been raised. However, in view of my findings onthe merits of ttre case I think it unnecessary to deal with this Objection.

14. The Petition is devoid of meit and is dismissed I -

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March 16,2005TP

( VIKRAMAIIT SEN )JUDGEJUDGE

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