IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 1045 of 1998 From SPECIAL CIVIL APPLICATION No 3530 of 1997 with LETTERS PATENT APPEALS NOS. 1128 of 1998, 1066/1998, 1067/1998, 1068/1998, 1055/1998, 1057/1998, 1071/1998, 1074/1998, 1076/1998, 213/1999 AND 199/1999 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO ======================================================== SHAKUNTALA P DEVLEKAR Versus SURAT MUNICIPAL CORPORATION -------------------------------------------------------------- Appearance: MR NIRAV K. MAJMUDAR, Advocate for Appellants in L.P.A. NOS. 1045/1998, 1055/1998, 1057/1998, 1074/1998, 1076/1998, 1071/1998 and 199/1999 MS. PAURAMI B. SHETH, Advocate for Appellant in L.P.A. No. 1128/1998 MRS. KETTY A. MEHTA, Advocate for Appellants in L.P.A. Nos. 1066/1998, 1067/1998 and 1068/1998. MR.A.V.PRAJAPATI, Advocate for Appellants in L.P.A. No.213/1999 MR PRASHANT G DESAI for Respondents - Surat Municipal Corporation in all matters -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE KUNDAN SINGH Date of decision: 30/04/2002 ORAL COMMON JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. These Letters Patent Appeals have been directed against the common judgement and order dated 1st August 1989 passed by the learned Single Judge in a group of petitions in which the petitioners had challenged the orders of their dismisssal from service passed by the respondent Surat Municipal Corporation and the decision of the Standing Committee confirming the orders. Special Civil Application No. 7110 of 1997 was filed by the Surat Municipal Employees (Staff) Union and the other petitions were filed by individual employees amongst the members of the said Union. 2. Due to the outbreak of pneumonic plague in the city of Surat, the Municipal Commissioner, after getting appropriate sanction from the State Government to take special measures, gave a call through public notices to the employees of the Municipal Corporation to report for work in view of the emergency situation created by the dangerous disease and issued a warning that defaulters will be dismissed. Some employees, however, did not heed and came to be dismissed on or around 29th September 1994. On 1st October 1994, the Municipal Commissioner issued orders that the defaulting employees who come to join duty after 30-9-1994 should be required to explain their absence and in cases where the explanation is found to be proper, they may be instructed to join. The explanations given by the petitioners - appellants who attempted to join after their dismissal orders were not found to be acceptable and their appeals came to be dismissed by individual orders made by the Administrator dealing with the grounds which were put forth by these employees for trying to explain their absence. The said Staff Union thereupon filed Special Civil Application No.12677 of 1994 challenging the termination of the employees. During those proceedings, by an interim direction issued on 11-7-1996, the respondent authorities were directed to consider the representations and contentions of these dismissed employees and take a decision in accordance with law in the matter. 2.1 Pursuant to that direction, a post-decisional hearing came to be given to the Union as well as each of the aggrieved employees who made the representations by accepting the direction of the Court for such post-decisional hearing. They were also given a personal hearing and ultimately, the Standing Committee, after considering their representations and contentions as well as the orders earlier made by the Administrator, found that there was no valid ground for interfering with the dismissal of these appellants - employees. In about four cases wherein the explanation given was found to be acceptable, the employees were allowed to resume duty. Thereafter, when the Special civil Application No. 12677 of 1994 came up for hearing on 7th April 1997, the learned Single Judge, observing that earlier by the interim order, the Court had accepted the arguments of the petitioner Union against their summarily dismissal made without being given an opportunity of being heard, but, instead of allowing the petition at that stage, granted an opportunity of post-decisional hearing before making final orders, held that, since the case of the petitioners was considered by the Corporation and was rejected by the Standing Committee, validity of the subsequent orders made after hearing the representations could not be decided in that petition. It was, therefore, held that the petitions had become infructuous in view of the subsequent orders and leaving it open to the petitioners to seek remedy against the final orders before the appropriate forum, the petition was rejected. Thereupon, the petitioners filed a group of petitions, from which the present appeals arise. 2.2 The learned Single Judge, by his judgement and order dated 1st August 1998, holding that an appropriate post-decisional hearing was given to these employees and observing that, in the facts and circumstances of the case, it was not reasonably practicable to give each of them an opportunity of hearing or showing cause in view of the fact that, as announced by the public notice dated 25-9-1995, the situation was very grave and the sanctioned leave of all the employees who had taken it was cancelled and without any exception, the entire staff was required to resume duty, failing which their services were to be terminated, found that, in such a situation, when the administration was engaged in saving human life, it was not practicable to hold enquiry against persons who had no sense of duty. It was also held that the petitioners had accepted the post-decisional hearing by submitting their representations and having obtained orders on merit, they cannot now contend that pre-decisional hearing should have been given. Moreover, there was no illegality committed in the post-decisional hearing. The learned Single Judge took note of the fact that the Administrator had considered the representations of the employees in their appeals and reinstated four where he found the explanations to be acceptable. Thereafter, the matter was again considered by the Standing Committee pursuant to the Court direction where liberty was given to the petitioners to make written submissions. After considering all representations and after hearing the parties, the Standing Committee rejected the representations of the petitioners. The learned Single Judge then proceeded to consider each individual case of the petitioners and out of the group of petitions, allowed four petitions, directing the respondents to re-consider their case, while dismissing the other petitions. The learned Single Judge, after an elaborate analysis of the facts from the record, found that there was nothing objectionable against the decision taken by the Standing Committee confirming the orders of dismissal of the petitioners who are the present appellants. 3. Three learned counsel have addressed us on behalf of the appellants adopting each others arguments and the fourth adopted their arguments. It has been contended on behalf of the appellants that there was no pre-decisional hearing given as required by the provisions of section 56(3) of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as `the said Act') and the post-decisional hearing cannot cure that defect. It was argued that the provisions of clause (b) of the proviso to sub-section (3) of section 56 of the said Act were not attracted in the instant case, because, the competent authority had not recorded any satisfaction that it was not reasonably practicable to give an opportunity of showing cause to these employees. It was submitted that reasonable opportunity to show cause would imply a full-fledged hearing, for which such post-decisional consideration of representation cannot be a valid substitute. It was also argued that, from the circumstance of emergency, no such satisfaction can be inferred unless specifically recorded in writing. It was contended that the circular issued on 1-10-1994 was discriminatory since those who reported after 1-10-1994 were allowed to explain and join, while those who were already dismissed, were not permitted to join. It was argued that unless an employee became violent or lunatic, hearing could not be dispensed with under the said proviso to section 56(3) of the Act. It was further argued that, under proviso (b) of section 56(3) of the Act, the authority should make a mention in the order imposing punishment about the satisfaction that it was not possible or practicable to give an opportunity to show cause and therefore, a post-decisional opportunity could not cure that defect of non-recording the satisfaction in the dismissal order. It was submitted that the respondent had not shown from the record that any such satisfaction had been reached. Moreover, such satisfaction was required to be separately recorded in each case. It was then argued that, even after re-consideration of the representations in the so called post-decisional hearing, the respondent did not give any finding on the reasons put forth by the employees for their absence by giving any cogent ground and had just upheld the earlier dismissal orders, the defect of which could not get cured by such post-decisional hearing. It was submitted that even during the post-decisional hearing, no show cause notice was given setting out the charges against these employees and no material was pointed out to the employees on the basis of which they were required to answer the charges. Therefore, no effective post-decisional hearing was given to justify the summarily dismissal of these employees. It was contended that the declaration of emergency in the city under section 62 of the said Act could apply only to the services which were enumerated as essential services in the Rules and did not apply to all services of the Municipal corporation. Therefore, the insistence on the employees to report to duty would apply only to those belonging to the enumerated essential services and not to the appellants. 3.1 In support of their contentions, the learned counsel for the appellants placed reliance on the following decisions : [a] The decision of the Supreme court in Swadeshi Cotton Mills v. Union of India, reported in AIR 1981 SC 818 was cited for the proposition that the general principle - as distinguished from an absolute rule of uniform application - seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. It was observed that, in short, this rule of fairplay must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands, and that the Court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. [b] The decision of the Supreme Court in Institute of Chartered Accountants of India v. L.K.Ratna, reported in AIR 1987 SC 71, was cited to point out that where allegation of misconduct against Chartered Accountant were made, it was held that a member of the institute of the Chartered Accountant of India accused of misconduct was entitled to a hearing by the Council when, on receipt of the report of the Disciplinary Committee, it proceeds to find whether he is or is not guilty. [c] The decision of the Supreme Court in K.I.Shephard v. Union of India, reported in AIR 1988 SC 686, being a case in which on amalgamation some of the employees of the banking company were intended to be excluded, was cited to point out that the Supreme Court held that there was no justification to hold that the rules of natural justice had been ousted by necessary implications because of the time frame prescribed under the Banking Regulation Act, and that there was no justification to think of a post-decisional hearing. It was held that there was no justification to throw such employees out of employment and then give them an opportunity of representation when the requirement was that they should have the opportunity as a condition precedent to action. It was observed that it is common experience that once a decision has been taken, there is a tendency to uphold it and the representation may not really yield any fruitful purpose. [d] The decision of the Supreme Court in Jashwant Singh v. State of Punjab, reported in AIR 1991 SC 385 was cited for the proposition that the decision to dispense with the departmental inquiry cannot be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. [e] The decision of the Supreme Court in Union of India v. Tulsiram Patel, reported in AIR 1985 SC 1416 was cited for the proposition that, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an inquiry. [f] The decision of the Supreme Court in K.C.Joshi v. Union of India, reported in AIR 1985 SC 1046 was cited for the proposition that, where an employee who was a protected workman and an active worker of the trade union, was removed from service on the ground of his unsatisfactory work and unsuitability without an inquiry in accordance with the principles of natural justice and it was found from the facts that, the charge of unsuitability was either cooked up or conjured up for a collateral purpose of doing away with the service of an active Trade Union worker, who because of his activities became an eye sore; it was held that the termination of services could not be said to be legal, valid or justified. [g] The decision of the Supreme Court in Jai Shanker v. State of Rajasthan, reported in AIR 1966 SC 492 was cited to point out that, in a case where the Regulations involved a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause, the Supreme Court held that, though it is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, it did not think that the Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. [h] The decision of the Supreme Court in Deokinandan Prasad v. The State of Bihar, reported in AIR 1971 SC 1409 was cited for the proposition that, though the service rule prescribed automatic termination of service for continuous absence for five years, an order passed to that effect without giving opportunity to Government servant offends Article 311 of the Constitution. It was noted in paragraph 25 of the judgement that the continuous absence from duty for over five years, apart from resulting in the forfeiture of the office also amounts to misconduct under Rule 46 of the Pension Rules disentitling the said officer to receive pension. It was admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. It was therefore held that the order was in clear violation of Article 311 of the Constitution and it was quashed even on that ground also. Earlier in paragraph 22 of the judgement, the Supreme Court found that the circumstances clearly showed that the petitioner could not be considered to have been continuously absent from duty for over five years during the period referred to therein and the order was quashed on that ground. [i] The decision of the Supreme Court in C.L.Subramaniam v. The Collector of Customs, reported in AIR 1972 SC 2178 was cited for the proposition that the procedural guarantee under Article 311 of the Constitution was a valuable one and breach of that guarantee vitiates the inquiry. [j] The decision of the Supreme court in Nepal Singh v. State of U.P. reported in AIR 1984 SC 84 was cited to point out that, in a case where termination of service of temporary Sub Inspector of Police was found to be on unsatisfactory and vague ground, the Court held that the order was liable to be quashed. [k] The decision of the Supreme Court in The Managing Director, U.P. Warehousing Corporation v. Vijay Narayan Vajpayee, reported in AIR 1980 SC 840 was cited to point out that, in case of an employee of the Warehousing Corporation, the Supreme Court has held that the employment of the respondent employee was a public employment and the statutory body - the employer - could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force, or in the absence of such Regulations, in accordance with the rules of natural justice. It was held that the Court would presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the Corporation, and an opportunity to lead evidence in defence of the charge, as also a show cause notice for the proposed punishment. [l] The decision of the Supreme Court in Ravindra Kumar Mishra v. U.P. State Handloom Corporation Ltd., reported in 1987 (Supp) SCC 739 was cited to point out that, in a case where U.P. State Handloom Corporation was the employer, it was held by the Supreme Court that the employees of the Corporation are entitled to protection under Part III of the Constitution and hence, since the Corporation had made service rules on par with Article 311(2), its employees were entitled to the benefits of the principles underlying Article 311(2), as interpreted by Supreme Court in various decisions. It was held that the Rule 68 of the Corporation's Service Rules was almost on par with the protection contemplated by Article 311(1), and yet no inquiry as required by Rule 68 was made on merits. On merits, it was held the employee was a temporary servant and had no right to the post and the order challenged was an order of termination in innocuous terms and did not cast any stigma and was, therefore, not open to challenge. [m] The decision of the Supreme Court in D.K. Yadav v. J.M.A. Industries Ltd., reported in XIII (2) G.L.H. 174 was cited to point out that, in a case where admittedly no opportunity was given to the appellant and no inquiry was held before terminating the services of the appellant, the Supreme Court held that there can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice, and that both are aimed at arriving at a just decision. The impugned termination was, therefore, held to be violative of the principles of natural justice. [n] The decision of the Supreme Court in H.L.Trehan v. Union of India, reported in AIR 1989 SC 568 was cited for the proposition that, any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution. It was held that the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such post-decisional opportunity. In this case, the management of Caltex Oil Refining (India) Ltd. (CORIL) to which management of the Undertaking of Caltex (India) Ltd. had been transferred altered the conditions of service of the staff of the Caltex (India) Ltd. to their disadvantage without giving them an opportunity of being heard, and it was held that the order altering the conditions was liable to be set aside. [o] The decision of the Supreme Court in S.L.Kapoor v. Jagmohan, reported in AIR 1981 SC 136 was referred to for the proposition that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man. It was held that the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. The person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. That was a case of supersession of Municipal Committee under the provisions of the Punjab Municipal Act, and it was held that the opportunity should be given to Committee before an order of supersession is passed against it. [p] The decision of this Court in Dr. S.C.Kaushik v. Union of India, reported in XXI G.L.R. 997 was cited to point out that, in a case where medical officer who was serving for more than five years was replaced by a fresh recruit and both had not passed the selection examination, it was held that the impugned termination was discriminatory and violative of Articles 14 and 16 of the Constitution and the rule of `last come first go' should be observed. [q] The decision in Mohd. Maqbool v. State of Jammu and Kashmir, reported in 1998 (4) SLR 114 was cited to point out that the learned Single Judge of the Jammu and Kashmir High Court has held that, it is well settled that the gravity of the activities of the delinquent did not furnish a justification for taking away for constitutional guarantee of enquiry for removing him from service. It was observed that that the severity or the gravity of the allegations against him may warrant removal from service. But, the gravity and seriousness of the allegations does not furnish basis for doing away with the constitutional guarantee of an inquiry. 4. The learned counsel