IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 16010 of 2007 Date of Decision: 8.7.2010. Jaspal Singh --Petitioner Versus G.N.D.U., Amritsar through its Registrar --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Amrik Singh, Advocate for the petitioner. Mr. P.S. Khurana, Advocate for the respondents. *** PERMOD KOHLI.J (ORAL) Post held by the petitioner as Senior Assistant, Examination Branch in the Guru Nanak Dev University, Amritsar has been declared to be vacant on account of his absence from duty even without issuing any notice to him vide impugned order dated 5.7.2007 (Annexure P-10). Validity of this order is under challenge in this petition. It is not in dispute that the petitioner was a regular permanent employee of the university. He applied for leave to go to Canada, where his wife and daughter were residing with permission to leave the station for the period w.e.f. 5.5.2007 to 24.6.2007 vide his application dated 11.4.2007. Request for leave was, however, declined by the respondent-university vide order dated 25.4.2007. The petitioner alleged to have undergone treatment in Guru Teg Bahadur Hospital, Amritsar from 03.5.2007 to 22.5.2007. He again requested for furlough leave vide his representation dated 23.5.2007. It appears that without waiting for the sanction of the leave, he proceeded to Canada. Respondent-university vide the impugned order terminated his services by declaring his post vacant. The impugned order is sought to CWP. No. 16010 of 2007 -2- be defended on the strength of Statute 74 framed by the university which reads as under:- “ 74. If the employee remains absent without leave or overstays his leave, he shall forfeit all his salary for the time of his absence; and if he remains absent without leave or overstays his leave for more than one week, his office shall be declared vacant and he shall be liable to pay an amount equivalent to his salary, in lieu of notice for the prescribed period. However, the competent authority may grant exemption from such recovery on the merits of the case.” Validity of impugned order is challenged primarily on the ground of non-observance of the principles of natural justice and violation of the statutory rules framed by the university. It is contended on behalf of the petitioner that no notice or opportunity of being heard was ever granted to the petitioner before passing the impugned order. As regards the violation of the statutory rules is concerned, the contention raised on behalf of the petitioner is that termination of the service is one of the major penalties provided under Statute 33 (i) of the university statutes. The competent authority was required to hold an inquiry and disciplinary proceedings before imposing the penalty of termination as prescribed under the statutes. The relevant extract of Statute 33 (i) is reproduced hereunder:- “ 33 (i) The following penalties may for good and sufficient reason be imposed upon any employee of the university: (e) Removal from pay of the whole or part of any pecuniary loss caused to the university by negligence or breach of orders. (f) Dismissal from the service of the university which ordinarily disqualifies from future employment. CWP. No. 16010 of 2007 -3- (ii) Except where otherwise laid down in the Statutes, the authority competent to appoint shall be competent to impose any kind of punishment including removal from office on grounds of misconduct, gross inefficiency etc. in the event of any such orders of punishment by the competent authority, the employee concerned shall have the right of appeal to the next higher authority whose decision shall be final. (iii) No penalty of dismissal, removal or reduction shall be imposed unless the employee has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. (iv) The grounds on which it is proposed to take action under clause (c), (e), (f) or (g) shall be reduced to the form of a definite charge or charges which shall be communicated in writing to the employee concerned and he shall be required within a reasonable time to state in writing whether he admits the truth of all or any of the charges, what explanation or defence if any, he has to offer and whether he desires to be heard in person. If he so desires or if the appointing authority so directs, an oral enquiry shall be held at which all evidence shall be heard as to such of the charges as are not admitted. The person charged shall be entitled to cross-examine the witnesses, to have such witness called as he may wish provided that the officer conducting the enquiry may for reasons to be recorded in writing refuse to call any witness. The proceeding shall contain sufficient record of the evidence and the statement of the findings and the grounds thereof. When it is proposed to take action under clause (a), (b) or (d), no order shall be passed imposing a penalty on an employee unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation has been taken into consideration. (vi) After the enquiry against an employee has been completed and after the punishing authority has arrived at a provisional conclusion in regard to penalty to be imposed, the delinquent employee shall, if the penalty proposed is dismissal, removal or reduction in rank be supplid with a copy of the report of the enquiry authority and be called upon to show cause within a reasonable time, not ordinarily exceeding one month, against the particular penalty proposed to be inflicted upon him. Any representation, submitted by the delinquent employee in this behalf shall be taken into consideration before final orders are passed.” From the perusal of the above statute, it is evident that removal or dismissal from service are the penalties prescribed under Statute 33(i) Sub clauses (ii), (iii), (iv) and (vi) of Statute 33 (i) lays down the procedure CWP. No. 16010 of 2007 -4- for imposing the penalties referred to above. It goes without saying that absence from duty constitutes a service misconduct and thus attracts the provisions of Statute 33 (i). Even though, Statute 74 is relied upon by the respondents to justify the impugned order and is an independent provision, nonetheless the absence from duty cannot be taken out of the purview of service misconduct. Admittedly, no charge sheet was ever served upon the petitioner nor any disciplinary inquiry was held against him. The action is said to be initiated under Statute 74 and not under Statute 33(i). It has been held by the Hon'ble Supreme Court in a case reported as AIR 1966 SC 1364 titled as Mafatlal Narandas Barot Vs. D. Rathod, Divisional Controller, State Transport Mehsana and another that the termination of service of a permanent employee on account of absence without leave without giving opportunity to show cause contravenes principles of natural justice. A similar defence by the Road Transport Corporation was negated by the Hon'ble Supreme Court. The relevant observations are as under:- “ 12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgement, the appellant was entitled to an opportunity to show cause against the action proposed to be taken CWP. No. 16010 of 2007 -5- against him.” A Constitution Bench of the Hon'ble Supreme Court further examined the validity of a similar rule as Statute 74 framed by the respondent-university and the right of of the permanent employee. In 1991 (supplement) SCC 600 titled as Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others, the Hon'ble Supreme Court considered the entire law on the subject and the validity of such a provision in the light of principles of natural justice and observed as under:- “Thus on a conspectus of the catena of cases decided by this Court the only conclusion follows is that Regulation 9(b) which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons 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 principles of natural justice as well as Article 14 of the Constitution. It has also been held consistently by this Court that the Government carries on various trades and business activity through the instrumentality of the State such as Government Company or Public Corporations. Such Government Company or 265 Public Corporation being State 'instrumentalities are State within the meaning of Article 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part III as well as to conform to the directive principles in Part IV of the Constitution. In other words the Service Regulations or Rules framed by them are to be tested by the touchstone of Article 14 of Constitution. Furthermore, the procedure CWP. No. 16010 of 2007 -6- prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this power of termination by giving notice or pay in lieu of notice can be exercised. 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 which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurely. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Regulation 9(b) does not expressly exclude the application of the 'audi alteram partern' rule and as such the order of termination of service of a permanent employee cannot be passed by simply issuing a month's notice under Regulation 9(b) or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported CWP. No. 16010 of 2007 -7- order is made.” In view of the settled legal position, this petition is allowed. The impugned order (Annexure P-10) is hereby quashed. Petitioner is directed to be reinstated to service forthwith, however, he shall not be entitled to any financial benefit for the period he remained out of service, though, his emoluments/salary shall be fixed on notional basis by giving him notional benefit of increments and other such benefits as might have accrued during such period. The respondents are, however, at liberty to proceed against the petitioner in accordance with law for absence from duty, if, so desired. (PERMOD KOHLI) JUDGE 8.7.2010. lucky Whether to be reported ? Yes.