a."! rt4t IN THE HIGH COURT OF DELHIAT NEW DELHI!, / l@(Cl No.7761/2003 & CMs No.13378/03. 331/2004 KUNDAL I^A.L ..... Petitioner Througlr 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 Respondents No.l attd? 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 ludgment? X 2. To be refenedto ttre Reporterornot? '/ 3. lrVhether the iudgment should be reported in the Digest? ./ .,i :@ l. 6 this Writ Petition it has been prayed ttrat the Order dated t 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 WP(C) No.7761l2003 Page 1 of. L2 I .t Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified .i _) a ,'-1 \ /l( .Q ) \ \b / dated 3.9.2000 terminating the services of the Petitioner be quasNa-da the Petitionerbe reinstated with all consequential benefits. 2. The first incident which has been narrated in the petition and relied upon pertains to the Respondent's Memorandum dated 15.5.2002, bringing to the notice of the Petitioner that he had been 'arrogant and indecent', and 'rude and defiant' in his behaviour to his superior, Colonel A.S. Budhiraia. T?rereafter, by Memorandum dated 30.5.2002 other alleged misconducts were brouglrt within the scope of the Inquiry. In my view it would be superfluous to go into the details for the reason that the Petitioner has admitted all ttrese charges, attributing his misbehaviour to mental strain due to domestic problems. He had expressed his regret and had requested ttrat he be given another drance. The Letter/Order dated 24.6.2002 was passed in this background. Flercising leniency, it rrvas decided to forfeit one increment with cumulative effect and his suspension was revoked. The Petitioner rnras simultaneously transferred and posted as a LDC to Arakonam Warehouse. He was further informed that his beha-viour and performance would be watched closely at ^ Arakon.am Headquarters and that if there was any further recunence of nrisconduct it would be viewed .seriously and action would be taken against him. By letter dated L.7.2002 the Petitioner had been directed to vacate the official accommodation within one month. wP(C) No.7761l2003 Page?of 12 i /.-- ,-{ F I y'-t;' (q. 3. Mr. Shali, learned counsel forthe Petitioner, has contended thdt'-tLre transfer was, ttrerefore, obviously in the nature of a punishment; that a transfer is not a permissible punishment; and that this Order stood vitiated onthe application oflegalprinciple of double jeopardy. 4. The Petitioner had' addressed a letter dated 26.7.2002 praying therein that he was prepared to join duties at Arakonam Headquarters provided he is paid a sum of Rs.21,0001- from his Provident Fund Account. lhe request was acceded to. By ttre Respondents letter dated 5.8.2002 the Petitioner was informed that since he was not obeying the Orders, his senrices were liable to be terminated on 8.8.2002. However, by his letter dated 9.8.2002 the Petitioner informed the Respondent that he has purchased a railway ticket to join duties atArakonam Warehouse but could not undertake the ioumey because of ill-health. Keeping in view the Petitioner's resolute failure to report for duty at Arakoram the Secretary General of the Respondent eventually terminated the employment of the Petitioner with effect from 3.9.2002. Mr. Shali has contended that as no Inquiry has been conducted and the Petitioner was not grven adequate opportunity to show cause, principles of natr:ral justice havg been violated, thereby creating sufficient gror:nd for quashing of the Orders. It should be emphasised ttrat so far as the transfer Order is concerned the Petitioner had not remonstrated against it. on the contrary he had wP(C) No.7761/2003 Page3 of 12 {:t applied for and obtained the zum of Rs.21,000/- from his Provident Fund Account, and had purchased a railway ticket to r:ndergo ttre iourney. In his letter dated 26.7.2002 he has stated tlrat "I am prepared to ioin my duty at Arakonam Warehouse forthwith provided I am sanctioned and given 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 dated 5.8.2002 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 the Respondent found the Petitioner's explanation unsatisfactory. Nevertheless they granted further time upto 12th August to the Petitioner to report for duty at Arakonam. His dismissal/termination Order was passed even later, on 3.9.2002. The Petitioner was grven a long rope, but he chose to hang himself with it. Principles of natr:ral iustice take effect only where a miscarriage of justice occurs, as is perceived by the Petitioner himself at the relevant time. If it is raised later on, becawe of legal advice, the complaint loses almost all its sting.As the Petitioner had all along expressed his willingn€ss to abide by and comply with the transfer Order, I do not consider it appropriate or necessary to go into the question of its alleged illegality or of it being contrary to the principles of natual justice. wP(C) No.7761l2003 Page4of L2 -{ .\(r\/ hr State of ff.P. Versus Harendra Arora and Another, AIRIOOI4C 2319 ttre Hon'ble Supreme Court was concemed with the non-supply of the krquiry Report to the delinquent officials, on whose behalf it was pleaded ttrat the principles of natural justice have been violated. This is how the Court dealt with the issue: Turning now to the facts of the case on han4 it has to be seen whether ttre non-frrmishing of ttre enquiry report the delinquent ofiicer has suffered any prejudice. Undisputedly, after submission of enquiry report the State Government sent a show cause notice to the delinquent pursuant to which he had shown cause and DisciplinaryAuthority after considering the said show cause, passed ttre orderof dismissal. Itis not stand of the respondentthat in absence of ttre enquiry report he could not submit an effective show cause before the order of dismissal was passed. Neither from the order passed by the Tribunal nor ttre Htgh Court it would appear that the respondent had raised this point there that he could not fiIe an effective show cause in the absence of enquiry report nor it has been stated that in the show cause reply it was complained that the delinquent had not been sened with a copy of the enquiry rcport. From these facts, it is not possible to hold that the respondent has been preiudiced by non -furnishing of enquiry report 6. The application for the principles of natural justice have been considered in great detail in Canara Bank and Ors. vs. Shri Debasis Das and ors., fr 2003 (3) sc 183 where ttre question of non-supply of the Inquiry Report had also been raised. The Apex Court took into !YP(C) No.776Lt2oD3 Page 5 of 12 f- , :l ,,( ,}. + (d) \ consideration the fact that at no stage had the employee pfMa prejudice and, therefore, there was no violation of principles of nah:ral justice. 7. In Nagar Palika, Nataur v. fLP. Public Services Thibunal, Luclorow and others, (1998) 2 SCC 400, the grievance that had been raised was that an opportunity to inspect ttre records had not been glven . The Court after keeping into perspective the judgment in The Managing llirector, ECIL v. B. Karuurakar, (1993) 4 SCC 727, found no infirmity with the procedure since repeated opportunities and reminders for this purpose had been glven but remained unutilised Nevertheless in Narayan Bao v State of Andhra Pradesh, AIR 1957 SC 737, documents had not been produced by the Police Officer concerned with the result that the accused persons did not have all necessary information for proper conduct of the defence. T?rere can be no gainsaylng that where a procedure has been set down by statute it must be adhered to, more so where criminal proceedings are concerned, Even in those circumstances the Cor:rt found that non compliance with statutory procedure would not have ttre result.of vitiating ttre proceedings. Ttre Cor:rt, however, cautioned ttrat if it is shor,rm in a particular case that the omission had caused prejudice 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 natural wP(C) No.7761l2003 Page 6 of 12 ) '. & ,') /^"y' / ('/ / \,/ justice as an afterthought or based on legal advice. There caN'f,no injustice where none has been perceivedorfeltbythe person concerned. B. A reading of the impugned Order also leaves no ma.nner of doubt that ttre only punisLrment that was inflicted on the Petitioner was that of the withholding of increment. The tansfer rnras ordered keeping the exigencies of services in view and merely because a warning had been issued to the Petitioner that he should conduct himself properly, ttrat decision does not transform itself into a punishment. This is especially so since the charges that had been levelled against the Petitioner are of a serious nafl:re, and the punishment imposed manifested a lenient attitude towards him. In the event, the Petitioner has only abused this leniency, as he has failed altogether to report for duty and has filed this Writ Petition only when ejectment proceedings in respect of the staff quarters had been initiated against him by the Management. It is beneficial to reproduce this extract from the decision of the Apex Court in Unlon of hrdla and Others vs. Ianardhan Debanath andAnother, (2004) 4 SCC 245: 14.The allegations made against ttre respondents are of serious nature, and ttre conduct attributed is certainly unbecoming. tfilhether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding arL enquiry to find out whether there was misbehaviour or conduct unbecoming of an wP(C) No.7761/2003 PageT of 12 + ,a / -"t) \ \/ ) employee is unnecessary and what is needed is \r-e--/ prima facie satisfaction of the authority concerned on the contemporary reports about ttre occurrence complained of and if the requirement, as submittedby learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whettrer the respondents could be transferred to a different division is a matter for ttre employer to consider depending upon the administrative necessities and the extent of solution for the problems faced 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 had opined that ttre dismissal of a Workm.Ln for use of abusive language towards his superior justifies the termination of his employment. It took not€ of the fact that the Workman had been ctrargesheeted earlier and inspite of ttre gravity of his offence, he was dealt with lenienfly, thereby making the accusation of vindictiveness wholly unjustified. 10. Mr. Shali has contended that there is a dear and significant distinction between the dismissal and termination of employmbnt and that they cannot be viewed as synonymous of each other. It is his contention that ttre employment of the Petitioner has been terminated and this is beyond the power of ttre Secretary General who can only pass wP(C) No.7761l2003 Page 8 of LZ ? i r t. a))v withholding of t-t i orders of promotion, demotion, suspension, glismlssa! and earned increment of the staff. I find no merit, whatsoever, in ttris zubmission. Ttrere is no justification for drawing a distinction between the dismissal and termination of services; Neither is Article 311 of the Consdhrtion attracted nor has any stahrtorily defined distinction applicable to the Respondent been broug[rt to my notice. In some precedents a distinction has been drawn between this legal nomenclature; termination of service has been to connote an end of service either by flux of time or superannuation etc., whereas dismissal has negative and punitive attributes. If semantics have to be gone into, since the Secretary General has the power to dismiss :rn employee, ttren such power would always indude ttre less stringent and detrimental decision of termination of service. No precedent has been strornm by learned counsel for the Petitionerin this regard- Even if these terms deal with different situations in strict legal parlance, an employer such as the Secretary General of the Indian Red Cross Society, can scarcely be expectedto be aware ofit. 11. It has also been contended that since the dismissal/termination Order has been issued by the Secretary General, she has transgressed the principles of natural justice inasmuch as stre has been a judge in her own cause. The rude behaviour, to which thd Petitioner has pleaded guilty, wP(C) No.7761l2003 Page9 of 12 :. t \! '?. had not originated against the Secretary General but was related to ttre conduct of ttre Petitioner with Colonel Buddhiraja. Retance has been placed on the extracted provision of Central Civil Services (Classification, Control and Appeal) Rr:les to buttress the argument that the faih:re to hold an Lrquly vitiates the termination/dismissal Orden 14. Prrocedure fs1 | rnposing mafor penaldes (1) No order imposing any of flre penalties specified in Clauses (v) to (x) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rr:le and Rule 15, or in the mannerprovided by the Public Servants (lrquiries) Act, 1850 (37 of 1850), where such inquiry is held under ttrat Act. (2) \Alhenever ttre Disciplinary Authority is of ttre opinion that fJrere are grounds for inquiring into the truth of any imputadon of misconduct or misbehaviour against a Government servant, it may itselfinquire into, orappoint underthisn:le orunderthe provisions of the Public Servants (Inquiries) Act, 1850, as ttre case may be, an authorityto inquire into the truththereof. Explanation.-Where ttre Disciplinary Authority itself holds the inquiry, any reference in sub-rule (7) to sub-mle (20) and in sub-rule (22) to the Inquiring Authority shall be construed as a reference to the Dis 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 the Petitioner. In view of his admission of guilt, and his prayer for leniency, this matter stood closed. T?rereafter, the Petitioner had obeyed the transfer Order. An Inquiry is instituted with a view to determine the wP(C) No.7761t2003 Page 10 of tZ )} .? ') ,/)( n71 d.isputed question of facts. At no point of time has it been t X#Oon that the Petitioner had obeyed ttre tansfer Order. He had 'been granted/afforded an opportunity to Show Cause against the termination of his services but he had avoided service, and had on particular date, refused to accept the Notice. It would be a travesty of law to expect ttre Management to carryout a full-fledged Inquiry even in these circumstances. The Hon'ble Supreme Court has rendered the following opinion in Syndtcate Bank vs. General Secretary, Syndicate Bank Staff Assoc{adon and Anot}ren, (2000) 5 SCC 65 which is apposite in the circumst€ul.ces of tllis case: "16. Now what are ttre requirements of principles of natural justice, which are required to be observed? Ttrese are: (1) a workman should know the nature of the complaint or accusation; (2) an opportunity to state his case; and (3) the management should act in good faith which means ttrat the action of ttre management should b ei farr, reasonable and just... 17. It is no point laying stress on the principles of natural justice without r:nderstanding their scope or real meaning. There are two essential elements of natural justice which are : (a) no man shall be judge in lris ornm cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In couse of time by various judicial pronolrncements ttrese two principles of natural jusdce have been expanded, e.5., a parry must have due notice when the tribunal will proceed; the tribunal should not act on irrelevant evidence or strut out relevant evidence; if the tribunal consists of several members they all must sit together at all times; the wP(C) No.776lt2oo3 PageIIof L2 ! t, tribunal should act independently and should not be biased against any party; its action shouldbe based on good faith and order (sic) and should act in a just, fair and 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 clause 16 of the Bipartite Settlement. It dghtly held that Dayananda has voluntarily retired from the service of the Bank Under ttrese circumstances it was not necessary for ttre Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank Nothing of ttre like has happened here. Assumlng for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in clause 16 of the Bipartite Settlement:" 13. A Preliminary Objection concerning the maintainability of ttre present Writ Petition has been raised. However, in view of my findings on the merits of ttre case I think it unnecessary to deal with this Objection. ,l i1l' \." ( VIKRAMAIIT SEN ) JUDGE Pagel?of 12 14. The Petition is devoid of meit and is dismissed I - lZ_, {- March 16,2005 TP wP(C) No.7761/2003 I