IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.1978/2008 Decided on:7.5.2009 Mohinder Singh Malhi. …Petitioner. Versus Commissioner, Municipal Corporation and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. For the petitioner : Mr.D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondents : Mr. Rakesh Jaswal, Advocate for respondent No.1. Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General for respondents No. 2 and 3. Rajiv Sharma, J. The petitioner was appointed as Junior Engineer in the Municipal Corporation, Shimla on 22.3.1975. He was confirmed as Junior Engineer with effect from 22.9.1977. He applied for 42 days earned leave due to illness of his mother. It was sanctioned by the competent authority on 24.8.1981. Thereafter he made applications for extension of leave on various dates between 7.10.1981 to 22.7.1983. According to the petitioner, these applications were received and diarized in the office of 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 the Engineer, B&R Department, Municipal Corporation, Shimla. He came to join his duties in the month of February, 1985. He was apprised that his services already stood terminated vide office order dated 18.11.1983 with effect from 1.11.1983. He made request for re-employment. This prayer was turned down by the Municipal Corporation on 11.4.1985. Thereafter he made representation to the Secretary (LSG) on 30.4.1985 and also made representation seeking reconsideration of his request of reemployment on compassionate grounds. These representations were rejected by the State on 12.1.1990. His further representation dated 30.4.1990 was also rejected by the State on 30.6.1990. Mr. D.P. Gupta, Advocate has strenuously argued that his client was confirmed employee of the corporation and his services could not be dispensed with without holding the formal inquiry as stipulated under section 73 of the Himachal Pradesh Municipal Corporation Act, 1979. He then contended that the petitioner has neither received any letter dated 24.3.1983 nor his client has ever read any notice published on 29.8.1983 in the daily Edition of the ‘The Tribune’. Mr. Rakesh Jaswal, Advocate has vehemently argued that the services of the petitioner have been terminated in accordance with law. According to him, letter dated 24.3.1983 was sent to him under registered A/D about the refusal of his leave. He then contended that letter dated 24.3.1983 could not be delivered and was received back with the endorsement that the petitioner was out of India. He then contended that the services of the petitioner have been terminated after issuing notice asking the petitioner to resume his duties within one month on 28.9.1983. He lastly contended that since the petitioner was not available it was not possible to hold inquiry against him as per section 73 of the Himachal Pradesh Municipal Corporation Act, 1979. 3 I have heard the learned counsel for the parties and perused the record carefully. The petitioner was confirmed on 22.9.1977. His leave application for 42 days was sanctioned on 24.8.1981. He submitted applications for extension of leave on various dates between 7.10.1981 to 22.7.1983. The letter issued to the petitioner on 24.3.1983 came back undelivered (Annexure R-1). He was informed to join his duties within 30 days vide public notice issued in the daily Edition of ‘The Tribune’ dated 28.9.1983. He was informed that in case he failed to join his duties within 30 days, his services shall stand terminated after the expiry of period of 30 days. It is in these circumstances the petitioner’s services have been terminated purportedly exercising the powers vested under section 4 (4) of the Himachal Pradesh Municipal Corporation Act, 1979. It will be apt at this stage to take into consideration section 73 of the Himachal Pradesh Municipal Corporation Act, 1979 (hereinafter referred to as ‘the Act’ for brevity sake). Sub-section (2) of section 73 of the Act provides in clear terms that no officer or employee can be punished under sub-section (1) of section 73 unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Section 73 of the Act reads as under: “73. Punishment of Corporation officers and other employees. (1) Every Corporation officer or other Corporation employee, other than those referred to in sub-section (1) of section 70, shall be liable to have his increments or promotion withheld or to be censured, reduced in rank, compulsorily retired, removed or dismissed for breach of any departmental regulations or of discipline or for careless, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by regulations: 4 Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by an authority subordinate to that by which he was appointed: Provided further that the Corporation may by regulations provide that Corporation employees belonging to such classes or categories as may be specified in the regulations shall be liable also to be fined by such authority as may be specified therein. (2) No such officer or other employee shall be punished under sub-section (1) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that this sub-section shall not apply- (a) where an officer or other employee is removed or dismissed on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to remove or dismiss such officer or other employee is satisfied that for some reason to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause. (3) If any question arises whether it is reasonably practicable to give to any officer or other employee an opportunity of showing cause under sub-section (2), the decision thereon of authority empowered to remove or dismiss such officer or other employee shall be final. (4) An officer or other employee upon whom a punishment has been inflicted under this section may appeal to such officer or authority as may be prescribed by regulations.” Mr. Rakesh Jaswal, Advocate on the basis of proviso (b) to sub- section (2) of section 73 has vehemently argued that it was not reasonably practicable to give opportunity of showing cause to the petitioner. He then 5 contended that the petitioner was informed by way of letter dated 24.3.1983 to resume his duties. He did not resume his duties. In fact, it has come in the reply that the letter came back undelivered. The petitioner was informed by way of public notice on 28.9.1983 to résumé his duties within 30 days. Thereafter his services were terminated on 18.11.1983 with effect from 1.11.1983. In the present case, the petitioner has not been served with any show cause notice before removing him under sub-section (2) of section 73. He was confirmed employee of the Corporation. In case the employer was under impression that it was not reasonably practicable to give any opportunity to show cause to the petitioner, the reasons were required to be recorded separately. The Corporation has failed to place any contemporaneous material on record to tangibly establish that the separate reasons were ever recorded as per the provisions of clause (b) of sub-section (2) of section 73 of the Act. The services of the petitioner, who was confirmed employee, could not be terminated in a summary manner by the employer. In fact, a regular inquiry was required to be instituted against the petitioner. In the present case, the respondent-corporation has only tried once to inform the petitioner that his leave could not be sanctioned and he should resume his duties. The Corporation was required to at least make two or three efforts to serve the petitioner. The public notice though has been issued in the daily edition of ‘The Tribune’, but there is nothing on record to suggest that it was readily available in a place where the petitioner was residing. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Dinanath Shantaram Karekar and others, (1998) 7 SCC 569 have held that when the charge-sheet was issued to the 6 employer comes back undelivered, additional efforts are required to be made. Similarly, their Lordships have not considered the service of notice by way of publication in a newspaper as valid since there was nothing on record to indicate that the newspaper in which the show cause notice was published was a popular newspaper which was accepted to be read by the public in general or that it had wide circulation in the area or the locality where the respondent lived. Their Lordships have held as under: “3. Respondent was an employee of the appellant. His personal file and the entire service record was available in which his home address also had been mentioned. The charge sheet which was sent to the respondent was returned with the postal endorsement "not found." This indicates that the charge sheet was not tendered to him even by the postal authorities. A document sent by registered post can be treated to have been served only when it is established that it was tendered to the addressee. Where the addressee was not available even to the postal authorities, and the registered cover was returned to the sender with the endorsement "not found," it cannot be legally treated to have been served. The appellant should have made further efforts to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be treated as sufficient. That being so, the very initiation of the departmental proceedings was bad. It was ex-parte even from the stage of charge sheet which, at no stage, was served upon the respondent. 4. So far as the service of show cause notice is concerned, it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show-cause notice either through the office peon or by registered post. There is nothing on record to indicate that the newspaper in which the 7 show-cause notice was published was a popular newspaper which was accepted to be read by the public in general or that it had wide circulation in the area or locality where the respondent lived. The show-cause notice cannot, therefore, in these circum-stances, be held to have been served on the respondent. In any case, since the very initiation of the disciplinary proceedings was bad for the reason that the charge sheet was not served, all subsequent steps and stages, including the issuance of the show-cause notice would be bad. 10. Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "Communication" cannot be invoked and "Actual Service" must be proved and established. It has already been found that neither the charge-sheet nor the show- cause notice was ever served upon the original respondent. Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated.” The Court is of the opinion that since the petitioner was confirmed employee, a regular inquiry was required to be initiated against the petitioner when he failed to join his duties. The removal of the petitioner in a summary manner vide letter dated 18.11.1983 is declared arbitrary. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexures A-3 dated 18.11.1983, A-6 dated 11.4.1985, A-9 dated 12.1.1990 and A-11 dated 30.6.1990 are quashed 8 and set aside. The petitioner is held entitled to all the consequential benefits. Needful be done within a period of eight weeks from today. However, the corporation is at absolute liberty to initiate regular disciplinary proceedings against the petitioner and conclude the same in accordance with law, if so desired. No costs. 7.5. 2009 (Rajiv Sharma ), J. *awasthi*