IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8587 of 1998 WITH SPECIAL CIVIL APPLICATION No 3326 of 1998 WITH SPECIAL CIVIL APPLICATION No 1548 of 1998 WITH SPECIAL CIVIL APPLICATION No 9461 of 1996 WITH SPECIAL CIVIL APPLICATION No 9492 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE AKSHAY H.MEHTA ============================================================ 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VIRENDRAKUMAR JAYANTILAL GANATRA Versus GUJARAT ELECTRICITY BOARD -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8587 of 1998 MR BHASKAR P. TANNA, SR. ADVOCATE with MS MAHROOK KERRAVALA, ADVOCATE for TANNA ASSOCIATES for Petitioner MR NK MAJMUDAR and MR HS MUNSHAW for Respondent No. 1-2 MR MH RATHOD for Petitioners in rest of the matters. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKSHAY H.MEHTA Date of decision: 01/04/2004 CAV JUDGEMENT 1. This group of petitions is filed by the former employees of the respondent - Gujarat Electricity Board (hereinafter referred to as 'the Board'), whose services have been terminated by the Board by resorting to Regulation No. 113 of the Services Regulations which have been framed by the Board in exercise of powers conferred by section 79 (c) of the Electricity (Supply) Act, 1948 (hereinafter referred to as 'the Regulations'). The said regulation has been pressed into service to summarily discharge the petitioners from service on the ground of continued absence from service despite warning to return to duty. In all cases except one the petitioners who had been transferred out of their circle had not joined the duty at the transferred place despite intimations/notices having been given to them by the Board. Their absence on duty at the place of transfer was, therefore, treated as continued absence from duty under Regulation 113 of the Regulations and their services were terminated on that ground. 1.1. In one case the petitioner had gone abroad without waiting for the grant of permission to proceed on leave by the superior officer and the same was treated to be continued absence from duty without prior permission of the concerned authority which made her liable to be discharged from the service in view of Regulation 113 and accordingly she was discharged from the service. The facts of each case would be discussed in detail little later in this judgment. 1.2. Since Regulation 113, which has been resorted to by the Board to bring about the end of the services of the petitioners, it has now become the main target of attack of the petitioners. It is, therefore, required to be reproduced verbatim. It reads as under :- Regulation-113 : Continued absence from duty or overstay, inspite of warning, to return to duty, shall render the employee liable to summarily discharged from service without the necessity of proceedings under the Gujarat Electricity Board Conduct, Discipline and appeal procedure. Obviously now the controversy is whether termination of the services of the petitioners with the help of Regulation 113 is just, proper and valid in light of the contentions that have been raised in the petitions and the submissions made during the course of hearing by the counsels for the parties. 2. Mr. B.P. Tanna, learned Senior Advocate appearing for the petitioner in Special Civil Application No. 8587 of 1998 has submitted that in his case the termination of service is not by way of simple discharge, but it is an order of dismissal which is passed by way of penalty treating the unauthorized absenteeism as act of misconduct and, therefore, the requisite procedure under the provisions of the Gujarat Electricity Board (Conduct, Punishment and Appeal) Rules (hereinafter referred to as 'the Conduct and Appeal Rules') ought to have been followed. He has further submitted that even if the impugned order amounts to discharge simpliciter in accordance with the provisions of the Regulation 113, it would be 'retrenchment' as defined under the provisions of section 2 (oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act') and before effecting the retrenchment, the Board was required to follow the procedure prescribed by the provisions of Section 25 (F) of the I.D. Act, but the same has not been followed and, therefore, the impugned order is bad in law. He has further submitted that service of permanent employee who has been in the establishment since long cannot be terminated without affording to him an opportunity of hearing. In other words, according to him, in such case the minimum requirement of following the principles of natural justice has to be complied with and when that is not done, the act becomes violative of principles of natural justice and hence bad in law. He has further submitted that the Regulation 113 is violative of Articles 14, 16, 19 (1) (g) and 21 of the Constitution of India and it is required to be declared ultra-vires the aforesaid constitutional provisions. Lastly he has submitted that since the impugned order has not been passed by the competent authority, it is required to be quashed and set aside. 2.1. Mr. M.H. Rathod, learned advocate appearing for the petitioners in Special Civil Applications Nos. 3326/1998, 1548/1998, 9461/1996 and 9492/1996 has contended that considering the facts and circumstances of the case, it is clear that the termination of the services has been brought about by way of penalty and, therefore, the requisite procedure as prescribed under the Conduct and Appeal Rules ought to have been followed. He has further submitted that in view of the Board's policy, Class-III or Class-IV employee could not be transferred outside his Circle unless there were compelling circumstances which have been adequately described in the said policy. According to him, in the instant case, no such compelling circumstances existed requiring Board to transfer the petitioners outside their Circle and therefore, the petitioners were justified in not reporting on duty at the transferred place and their absence could not have been termed as continued absence from duty or unauthorized absence. So far the legal submissions are concerned, he has adopted the submissions made by Mr. Tanna in toto. 2.2. As against that, Mr. N.K. Majmudar and Mr. H.S. Munshaw, learned advocates appearing for the Board have submitted that the Regulations have been framed by virtue of the power conferred on the Board by the provisions of the Electricity (Supply) Act and, therefore, these Regulations have force of a statute. They have further submitted that since Regulation 113 is also part of the Regulations, it has got force of law and the Board could resort to said provision in appropriate cases and pass order of discharge from service against the defaulting employee. They have further submitted that since the provisions of Regulation 113 do not envisage holding of any inquiry or following the procedure laid down under Section 25 (F) of the I.D. Act, the Board was empowered to pass order of discharge simpliciter and dispense with the aforesaid procedure. According to them, such discharge even did not amount to retrenchment under Section 2 (oo) of the I.D. Act and no compliance of the provisions of section 25 (F) was required to be made before passing the impugned orders. They have also submitted that in view of the decision rendered by the Apex Court in the case of Gujarat Electricity Board v/s. Atmaram Poshani reported in AIR 1989 S.C. at page 1433, in which the Apex Court was required to consider Regulation 113 and the order discharging the employee from service under that provision; and the said order was held to be valid, the issue regarding its validity stands concluded. In other words, it is submitted by them that when the Apex Court has upheld the order of termination of service which was passed without following any procedure under section 25 (F) of the I.D. Act or without compliance of principles of natural justice, it is clear that no such requirement is to be complied with. Lastly they have submitted that facts of each case would show that impugned orders were just and proper and there was no reason for interference by this Court with the orders of termination of the services and the petitions be dismissed. 2.3. Both the sides have placed reliance on various decisions of this Court and the Apex Court. I will refer to them in the course of the judgment. 3. Since the question regarding validity of Regulation 113 has been raised in these petitions and the same has been challenged on the ground of it being violative of constitutional provisions, in particular of Articles 14, 16, 19 (1)(g) and 21 of the Constitution of India, I will first examine the impugned provision of the Regulations from that angle. 3.1. It may be noted here that so far the counsels for respondent-Board are concerned, they have submitted that the question with regard to validity of Regulation 113 stands concluded by virtue of the Apex Court's decision rendered in the case of GEB V/s. Poshani (supra). However, the said submission cannot be accepted because in para. 5 of the said judgment, the Apex Court has observed as under :- "5. It is note-worthy that the validity of Regulation 113 was not challenged before the High Court and the parties proceeded on the assumption that Regulation 113 was valid and applicable to the respondents' service." The said Regulation was not challenged even before the Apex Court. It was only the order passed against Mr. Poshani that was challenged on the ground of noncompliance of principles of natural justice. In view of the aforesaid observations made by the Apex Court, it is clear that the question regarding validity of Regulation 113 has been kept open. 3.2. Before I embark upon the detailed examination of this issue, it will be worthwhile to refer to the transfer policy relating to employees of Class-III and IV and the provisions regarding absence without leave, over stay of leave, etc., contained in the Regulations and the Board's Conduct, Discipline and Appeal Rules, apart from Regulation 113. 3.3. The Board itself has evolved a policy governing/regularising transfer of Class-III and IV employees. It is adequately contained in a letter, which has been addressed to the Superintending Engineer. (O & M), G.E.B. C.O. Jamnagar dated 23rd October, 1996 by Addl. Chief Engineer (WZ), Rajkot, the contents thereof are required to be reproduced in toto. The same are as follows:- Confidential G.E.B. Zonal Office, Rajkot Dt. 23/10/96. No.:RZ/Est/TRF/96/525 To The S.E. (O&M), GEB : C.O., Jamnagar, Sub : Out of Circle tranfers on administrative grounds "It has been observed that in many cases proposals for out of Circle transfers of employees are received without strong justification for such an action or without supporting documents. As far as possible transfer on administrative reasons should be made within the Circle, so that the employee concerned may realise his mistake. If he is involved in any serious act or misconduct, disciplinary action as per the procedure must be taken as otherwise such an action is likely to reflect prejudicial action. Transfer out of Circle should be resorted to in rare cases. Grounds should be very justifiable, Documentary evidence should also support the proposal while reading such proposal to this office, such documents and incidents of indisciplined behaviour by the employes, previous transfer within the circle, charge-sheet given etc., should be categorically furnished. Thereby, it should be established that there is full justification for proposal. In such all type of cases, the disciplinary action procedure should follow without fail. Above guidelines may please be kept in view while dealing such cases." sd/- Addl. Chief Engineer (WS) Rajkot c.f.w. cs. to :- ============= The I/c. G.M. (HRD), GEB: No : Baroda. It is not disputed that the aforesaid communication regarding transfer outside the Circle is made in relation to Class-III and Class-IV employees. The policy, therefore, lays down that only in rare cases the transfer of such employee out of the circle should be resorted to. It is only in cases where the concerned employee is involved in any serious act or misconduct proposal for transfer outside the circle can be submitted. Further alongwith the proposal, documentary evidence referred to in the policy should be categorically furnished in support of the proposal to the concerned office. Then only transfer outside the Circle could be made. In fact the policy lays down that it should be established that there is full justification for transfer outside the circle and in all such type of cases the disciplinary action procedure should be followed without fail. 3.4. So far the absence from duty without prior permission (unauthorized absenteeism) or even overstaying the period of sanctioned leave is concerned, it is dealt with in the following Regulations, which are as under :- Regulation 148: If in the opinion of the authority competent to sanction casual leave, an employee has either overstayed the period of casual leave sanction to him or has absented himself without prior permission, without sufficiently satisfactory reasons or is found to be in habit of absenting himself frequently from duty inspite of warning absence will not be treated as casual leave and will be treated as a breach of discipline. Regulation-236: Any act of misconduct or breach of discipline shall be punishable to the extent provided under these regulations few of such acts of misconduct or breaches of discipline are mentioned below as indicative of the nature of such acts and breaches. (a) Unpunctuality and irregular attendance or absence without permission. xxx xxx xxx xxx Regulation 237 provides for various punishments which reads as under :- Regulation-237: Without prejudice to the provisions of any law for the time being in force, employee who is found to be guilty of any acts or of misconduct or or any breach of discipline, is punishable as indicated below according to the gravity of the breach of misconduct. The punishment will not only depend on the findings in the case under review, but also on his past record. (i) Warning. (ii) Reprim and or censure (iii) Withholding increments for a specified period. (iv) fine upto the limit that may be prescribed by the Board. (v) Reduction to a lower post. (vi) recovery of the loss from the emoluments of the employee upto the limit that may be prescribed by the Board. (vii) Suspension (viii) Removal from the service. (ix) Dismissal which may result in disqualifying the employee from any Govt., or semi Government employment. Regulation 238 provides for the procedure for dealing with cases of acts of misconduct and breaches of discipline. The same reads as under :- Regulation-238 : The Board may prescribe a procedure for dealing with cases of acts of misconduct and breaches of discipline, and appropriate authorities to hold inquiries and to impose punishments or to order any disciplinary action and also to hear appeals. Gujarat Electricity Board Establishment Manual, which deals with Board's employees conduct, discipline and appeal procedure. Clause 4 thereof deals with classification of offences, which classifies the offences committed by the employees in the following two categories, namely (a) acts of misconduct and (b) minor lapses and delinquencies. The acts of misconduct are described in Schedule-A; whereas minor lapses and delinquencies are enumerated in Schedule-B. Items nos. 14, 15, 16 and 17 of Schedule-B deal with absenteeism in one form or the other. They are as under :- SCHEDULE - B MINOR LAPSES AND DELINQUENCIES :- (14) Staying away on casual leave without sufficient ground and satisfactory explanation. (15) Asking for extension while on leave without sufficient cause. (16) Overstaying leave. (17) Absence without prior permission. Thus the instance of remaining absent without permission of the concerned authority in any of the aforesaid forms is classified as minor lapse and delinquency. Clause 9 provides for punishments in connection with minor lapses and delinquencies, which reads as under :- Clause 9-Punishments : The following limits are prescribed for minor lapses delinquencies and acts of misconduct according to the gravity of each case :- _______________________________________________________________ Name of Punishment Appealable offence non appealable ______________________________________________________________ (1) Minor lapses & (a) Warning Non-appealble delinquencies (b) Reprimand (c) Fine upto 1/10 (i) non-appealable of the basic pay if fine is less than Rs.5 (d) Recovery from pay to make up wholly or partly the pecuniary loss caused to the Appealable organisation the due to negligence or breach of orders (amounts less than Rs.50). Thus, it can be seen that the unauthorized absenteeism has been dealt with by the Board in two different ways; firstly under regulation 113 it has been considered as a ground to render concerned employee liable to summarily discharged without following any proceedings under the Board's conduct, discipline and appeal procedure when the absence from duty is continued one and despite warning it is not resumed; and secondly it has been treated as minor lapse or delinquency entailing imposition of certain punishments. In other words, in the first category the unauthorized absenteeism is neither treated as misconduct nor as minor lapse or delinquency; whereas in the second category it has been treated as a minor lapse and delinquency requiring imposition of one of the aforesaid punishments. Clause 5 provides for procedure for dealing with minor lapses and delinquencies and also the competent officer to take action against the defaulting employee. It reads as follows :- Clause 5 : Procedure for dealing with minor lapses and delinquencies : (a) Cases of minor lapses and delinquencies may be summarily dealt with without he necessity of following the procedure in clause 6 and warning or reprimand may be issued or a fine imposed, provided, however, the employee's explanation in writing should normally be obtained whenever a fine is imposed. Any reprimand or fine imposed by the appropriate authority shall be entered into the personnel trocord of the employee. (b) The following are the competent officers to act under sub-clause (a) :- _________________________________________________________ Class if Employees Competent Authority _________________________________________________________ (i) Class III & IV Employees Branch Head in Head Office Executive Engineer or officer incharge of the respective operating or construction unit in the divisions. (ii) Class II Officers Secretary non technical Officers. Chief Engineer for Technical Officers. (iii) Class I Officers as in (ii) above but in consultation with Chairman Apart from this, there does not seem to be any other provision regarding absence without leave, atleast my attention has not been drawn to it by the any of the counsels appearing for the parties. 3.5. The reading of two different provisions would make it clear that so far Regulation 113 is concerned, it requires no procedure to be followed for relieving the defaulting employee from service if such employee has remained on leave without permission of the concerned officer and despite warning to resume the service, has not done it. When absence without permission or overstaying the sanctioned leave is treated as misconduct or breach of discipline under the Board's employees Conduct, Discipline and Appeal procedure, for such absenteeism certain procedure as envisaged under clause 5 is required to be followed by the competent authority and upon the default being established, one of the punishments including that of levy of fine, prescribed in clause 9 has to be imposed. It may also be seen that so far regulation 113 is concerned, against the decision of the competent authority no appeal has been provided for. As against that, in the second category only in the case of warning or imposition of fine of less than Rs.5/= appeal has not been provided for; otherwise against all the orders of penalty there is a provision of appeal. 3.6. Aforesaid policy of the transfer outside the circle and various provisions are now required to be kept in view while discussing the issue regarding validity of Regulation 113. 3.7. By now the factors which are required to be taken into consideration for examining the issue regarding validity of any statute, provision of the statute or rules or regulations having statutory force vis-a-vis aforesaid provisions of the Constitution have been well defined by the Apex Court. Broadly speaking, they can be stated as under :- I. Whether the impugned provision is arbitrary, discriminatory and unguided. II. Whether it violates principles of natural justice. III. Whether it is unreasonable. IV. Whether it is against public policy and public interest. V. Whether it is unfair and/or unconscionable. Keeping in view the aforesaid factors, I will now examine the constitutional validity of Regulation 113. I. Whether the impugned provision is discriminatory, arbitrary and unguided. ------------------------------------------------ WHETHER IT IS DISCRIMINATORY : 4. Simple reading of Regulation 113 will show that in the event of continued absence from duty or overstay inspite of warning to return to duty, shall render the concerned employee liable to summarily discharged from service. It also provides that no proceedings under the Board's Conduct, Discipline and Appeal Procedure would be required to be followed. There is another category of unauthorized absentees as covered under Regulation 236 Clause (a). Though these provisions are termed in different ways, they essentially relate to absence without permission. It is true that Regulation 113 envisages that inspite of warning if the concerned employee did not return to duty, the consequences mentioned therein would follow. In Regulation 236 Clause (a) no such indication has been given. In both the provisions no particular time limit is prescribed. In other words, after what specified period or duration of absence the defaulting employee will be liable to be dealt with either under Regulation 113 or Regulation 236(a). Regulation 236(a) even does not say whether it is only applicable to the cases of the employee later on joining the duty either on account of the warning or for any other reason or even to the cases where despite notice employee has not joined the duty. Clause (a) of Regulation 236 only says absence without prior permission and nothing more. In Regulation 113 words 'continued absence from duty' would mean absence from duty without leave as said by the Apex Court in Poshani's case. Clause (a) of Regulation 236 deals with cases of unpunctuality, irregular attendance and absence without permission. The irregular attendance and absence without permission are separately mentioned. Irregular attendance means frequently remaining absent without permission. Absence may be of short duration. Irregular attendance and unpunctuality are described in Regulation 224 as acts of breach of discipline. Absence without permission may even be for longer period. Power to treat it as breach of discipline is conferred upon Competent Authority under Regulation 148. Ofcourse it deals with casual leave which can be permitted for maximum five days at a time which in extraordinary circumstances can be extended upto 8 days not beyond that as per Regulation 147. It may be noted here that Regulation 148 also includes category of employees who habitually remain absent despite warning. In such circumstances, there is ample scope for discrimination, deliberate or otherwise. In a given case, an employee may be treated as a defaulter under Regulation 113 and in another he may be treated as a employee committing breach of discipline under Regulation 236 (a). So far the consequence under Regulation 113 is concerned, the defaulting employee renders himself liable to summarily discharged from service; whereas if it is considered to be a breach of discipline under Regulation 236 (a), such employee escapes with minor punishment. Thus, it is quite possible that concerned officer at one place may deal the defaulting employee, who has not resumed even after notice to do so, under Regulation 113; whereas officer at some other place, may treat it as an act of misconduct or breach of discipline under Regulation 236 (a), which as per clause (9) of the Board's Conduct, Discipline and Appeal