If made with bonafide intention, a single notice suffices: Rajasthan High Court

 on 17 11 2020 at 01:47:08 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPURS.B. Civil Writ Petition No. 11880 2018Shri Mohan Mali S o Shri Ram Singh Mali Aged About 31 Years R o Village Rangama Tal Opposite Mandrayal Road Kanta TehsilAnd District Karoli. PetitionerVersusJudge Industrial Dispute Tribunal Cum Labour Court Jodhpur Jodhpur RespondentFor Petitioner(s) : Mr. Kuldeep MathurFor Respondent(s): Mr. Himanshu ShrimaliJUSTICE DINESH MEHTAJudgment05 11 20201.The present writ petition is directed against the order dated07.08.2018 passed by the Judge Industrial Tribunal cum LabourCourt Jodhpur whereby petitioner’s services have beenterminated with immediate effect.2.Mr. Kuldeep Mathur learned counsel for the petitionersubmitted that petitioner has challenged the above referred orderof termination so also the orders dated 07.08.2018whereby two annual grade increments of the petitioner withoutcumulative effect have been stopped by each of the order.3.The facts apropos are set out hereunder:3.1The petitioner was appointed by order dated 22.08.2016 as aClass IV employee in furtherance of regular selection process.[CW 11880 2018]Initially he was allowed to join as a probationer for a period of twoyears. 3.2 All went well till the petitioner received a notice dated11.06.2018 issued by the respondent requiring the petitioner togive his explanation as to why proceedings under Rule 17 CCA benot taken as on 29.05.2018 he remained present in the officeonly for one hour and that too without uniform. 3.3Twice petitioner took time for filing reply and ultimately itwas submitted on 26.06.2018 stating interalia that since uniformallowance was not given to him a probationer he was unable toattend the office in uniform and prayed that the proposedproceedings be dropped.3.4The respondent passed an order dating it as ‘31.07.2018’(signed on 07.08.2018) and punished the petitioner by stoppingtwo annual grade increments without cumulative effect. As thepetitioner was a probationer the penalty was inflicted with astipulation that the same will be given effect as and when annualincrements would be payable. 3.5 Surprisingly another notice of the same date[CW 11880 2018]3.7The respondent Presiding Officer passed yet another penaltyorder and stopped two annual grade increments withoutcumulative effect as and when it becomes due.3.8Similar notice of even datewas also issued bythe respondent interalia seeking petitioner’s explanation as towhy he remained absent without leave on 11.06.2018. 3.9The petitioner filed his reply on 26.06.2018 in response tothis notice also and submitted that he had discharged his duties atthe residence of the respondent and while giving specific timings.3.10The Presiding Officer passed third order on 07.08.2018 andimposed identical punishment upon the petitioner namelystopping two annual grade increments without cumulative effectfrom the date when it becomes due. 3.11Even after passing three penalty orders on the same date the Presiding Officer proceeded to dispense with petitioner’sservices with one stroke of pen.4.Mr. Mathur painstakingly submitted that a low paid employeeat the lowest rung has been thrown out of the employment simply because of the highhanded attitude of the respondent whois none other than a judicial officer that too dealing with cases ofindustrial and labour disputes. 5.Mr. Mathur argued that the respondent was at least requiredto consider and deal with the reply filed by the petitioner beforeimposing penalty. He pointed out that all the impugned ordershave been passed on the same date and in a mechanical mannerand contended that they have been passed with premeditatedmind. [CW 11880 2018]6.Learned counsel for the petitioner submitted that threeorders of stopping annual grade increments were nothing but aground prepared to oust the petitioner from service. Heemphatically submitted that the petitioner had furnished dueexplanation and that he had given duties at no other place thanrespondent’s own house on the relevant dates yet the respondentofficer brushed aside the reply and passed penalty orders.7.It was alternatively submitted that at the best therespondent could have marked leave and held the petitioner‘absent without leave’. Such harsh action of stoppage of twoannual grade increments for each day’s alleged leave that toothree in number demonstrates vindictiveness of the respondent. 8.Mr. Shrimali learned counsel for the respondent submittedthat as the petitioner had got an alternative and efficaciousremedy by way of statutory appeal this Court should not exerciseits writ jurisdiction under Article 226 of the constitution. 9.It was meekly argued that the petition suffers frommisjoinder of cause of action inasmuch as petitioner haschallenged all the orders in one petition.10.But for the preliminary objections so raised Mr. Shrimali hadhardly any thing to offer to justify the orders impugned given arather unusual factual backdrop. 11.Heard.12.Though the matter had come up on board for considerationof the second stay petition but having regard to the peculiar factsand more particularly the fact that the petitioner a probationer isworking at the strength of an interim order of the Court I feel thatit will not be appropriate to keep the sword of damoceles hanging[CW 11880 2018]over his head. Hence with the consent of learned counsel for theparties the matter was finally heard. 13.Final decision of the case at hands was deemed imperative lest the respondent who is bestowed the duty of decidingindustrial and labour disputes will himself generate more disputesof like nature. 14.The case at hands does not need much deliberation as thefacts themselves speak volumes about the fanciful attitude of therespondent Presiding Officer. The respondent firstly issued threenotices for identical breach for different dates giving only threedays’ time to show cause. Thereafter he passed three differentorders on a single day slapping three penalties of stoppage of twoannual grade increments knowing it fully well that petitionerbeing a probationer was not even entitled for annual gradeincrements.15.It is noteworthy that the first notice bearing No.309 2018was issued on 11.06.2018 alleging that petitioner had come onlyfor an hour on 29.05.2018. Another notice was issued on thesame date alleging that petitioner remained absent without leaveon 08.06.2018 and third notice too was issued on the very samedate alleging that petitioner remained absent without intimationon 11.06.2018. 16.It is strange that the learned Judge began the battle bytriggering three notices on 11.06.2018 for a purported breachrelating to 29.05.2018 08.06.2018 and 11.06.2018. Had he beenbonafide even a single notice would have sufficed. 17.A careful reading of all the noticeshowsthat petitioner’s explanation was elicited in 3 days to show why[CW 11880 2018]proceedings under Rule 17 of the CCA Rules for penalising thepetitioner may not be initiated. It will be useful to reproducerelevant part of the notice which reads thus: "vr% vki bl lEcU k esa rhu kse esa viuk Li’Vhdj.k is”k djs fdD ksa ugha vkids fo:) fu e 17 lhlh :Yl ds rgr dk Zokghdj nf.Mr fd k tkosA” 18.Petitioner sought time on 2 3 occasions perhaps in a hopethat respondent will cool down. Ultimately replies rather four lineexplanations to all the notices were filed on 26.06.2018.Whereafter the respondent herein took 11 12 days’ time to passthree identical ordersof stoppages of twoannual grade increments.19.One would be at a loss to comprehend that why notice wasissued belatedly on 11.06.2018 for purported breach of29.05.2018. Irrespective of the date of breach all the threenotices came to be issued on 11.06.2018. Receiving threenotices one after another would make anyone lose his balanceand peace what to talk of Class IV employee. 20.Then the learned Judge does not deal with much lessdialate upon the response given by the petitioner that thepetitioner was at hisresidence only doing dailychores. 21.First order though has been dated as 31.07.2018 but acareful reading reveals that the same was signed on 07.08.2018.Even numbers of all the three penalty orders are continuous. [CW 11880 2018]22.Having passed three orders of penalty respondents madethem the ground for getting rid of the petitioner or to bring anabrupt end to his services branding it to be ‘not satisfactory’. 23.Be that as it may three orders in effect amounts to stoppageof six annual grade increments. Having regard to the nature ofallegations levelled in the notices and the language used therein the penalty is not only highly disproportionate but is also inviolation of principles of natural justice.24.It is pertinent to note that the notice was only issued toshow cause why proceedings for punishment under Rule 17 ofCCA Rules may not be taken to which the petitioner responded bygiving a three line explanation with a request that the actionproposed in the notice be dropped.25.The respondent has not considered the explanation furnishedby the petitioner and has proceeded with predetermined mindset which is evident from the fact that immediately upon passing ofthe impugned order on 07.08.2018 itself he scooped thepetitioner out of the service.26.In view of the aforesaid all the three impugned orders dated07.08.2018 imposing penalty are hereby quashed and set aside. 27.Since these orders form the fulcrum of the impugnedtermination order dated 07.08.2018the same also fallsflat on the ground as the foundational orders have been quashed.28.No other reason or material has been brought on record toshow that petitioner’s services were not satisfactory. 29.The writ petition is allowed with cost.30.Though the harassment and agony which the petitionermight have suffered in the hands of respondent who is otherwise[CW 11880 2018]responsible of dealing with industrial and labour disputes isimmeasurable. But the ends of justice would not meet if in acase like this token cost is not imposed upon the respondent. 31.Hence a sum of Rs.20 000 is awarded as a cost oflitigation to the petitioner. Same shall be recovered in twoinstallments from salary of the respondent the author of theorders personally. 32.A copy of this order be sent forthwith to the Secretary Lawand Justice and to the Registrar General of the High Court fordoing the needful. A copy of the order instant be also placed inService Record of the respondent.33.Stay petitions also stand disposed of accordingly.(DINESH MEHTA) J161 Ramesh 

Summary: The principal seat of the Rajasthan High Court at Jodhpur clarified the question on when rule 17 of The Central Civil Services (Classification, Control And Appeal) Rules, 1965 (hereinafter, CCA) can be imposed against an employee and whether the petition suffered from misjoinder of action. This remarkable judgement was passed by the bench consisting of Justice Dinesh Mehta, that heard a petition filed by a Class IV employee in the matter of Shri Mohan Mali V Judge, Industrial Dispute Cum Labour Court [S.B. Civil Writ Petition No. 11880/2018]. The petitioner who was a class IV employee, selected through usual course of selection after being put on probation for two years alleged that his employer sent him a notice for being present in office for only an hour and without his uniform. The petitioner replies saying that due to him being a probationer, uniform allowance was not granted to him and prayed for proceedings to be quashed against him. However, the respondent instead sent him 2 other follow up notices which have been alleged to not be in bonafide intention. Therefore, the petitioner has filed this petition against the order passed by the Judge, Industrial Tribunal-cum-Labour Court, Jodhpur, by virtue of which the petitioner’s services had been terminated. Counsel for the petitioner alleged that two annual grade increments of the petitioner without cumulative effect have been stopped by the orders. As a result of which a low paid employee at the lowest rung had been thrown out of the employment owing to the highhanded attitude of the employer.  On the other hand, the respondent submitted that as the petitioner had got an alternative and efficacious remedy by way of statutory appeal and thus, this Court should not exercise its writ jurisdiction under Article 226 of the constitution. The Court empathetically opined, “It is strange that the learned Judge began the battle by triggering three notices on 11.06.2018 for a purported breach relating to 29.05.2018; 08.06.2018 and 11.06.2018. Had he been bonafide even a single notice would have sufficed. The case at hands does not need much deliberation, as the facts themselves speak volumes about the fanciful attitude of the respondent – Presiding Officer. The respondent firstly issued three notices for identical breach for different dates giving only three days’ time to show cause. Thereafter he passed three different orders on a single day, slapping three penalties of stoppage of two annual grade increments, knowing it fully well that petitioner being a probationer was not even entitled for annual grade increments. Having regard to the nature of allegations levelled in the notices and the language used therein, the penalty is not only highly disproportionate, but is also in violation of principles of natural justice. The respondent has not considered the explanation furnished by the petitioner and has proceeded with predetermined mind-set, which is evident from the fact that immediately upon passing of the impugned order on 07.08.2018 itself, he scooped the petitioner out of the service”. In light of reasons stated above, the Court quashed all three orders that imposed penalty.