This writ petition is filed by the petitioner challenging the order dated 21.4.1998 passed by the second respondent and after setting aside the same for a consequential direction to restore the petitioner in the post of Superintendent with all benefits.
2. By the impugned order dated 21.4.1998, the petitioner's services were removed by the second respondent on the basis of an order passed by the first respondent Vice Chancellor Tamil Nadu Agricultural University.
3. Notice of motion was ordered in the writ petition on 15.6.1998 and subsequently, the matter was admitted on 09.11.2001. The petitioner's prayer for interim relief was rejected by this court by an order dated 26.8.2003.
4. On notice from this Court, a detailed counter affidavit (running into 45 pages) has been filed by the second respondent.
5. The first respondent University was created by the Tamil Nadu Act 8 of 1971. The petitioner joined as a Fieldman during the year 1960. Subsequently, he was selected by the Tamil Nadu Public Service Commission to the post of Junior Assistant and appointed with effect from 14.5.1965 in the office of the Dean, Agricultural College and Research Institute, Coimbatore. After the formation of the University with effect from 01.6.1971, the centre got merged with the Tamil Nadu Agricultural University and the petitioner became its employee. The petitioner was promoted as an Assistant on 06.8.1975. Subsequently, on promotion he was made as Superintendent with effect from 18.7.1984. At the time of his removal, he was Superintendent under the Directorate of Soil and Crop Management Studies of the University at Coimbatore.
6. The petitioner proceeded on Unearned Leave on Private Affairs from 01.1.1984 to 30.9.1984. Then he applied for Extraordinary Leave on loss of pay for one year and two months from 01.10.1984 to 30.3.1985. Instead of joining duty, he went on extending the leave from 01.10.1985 to 31.3.1986. Thereafter from 01.4.1987 to 31.3.1988. During the aforesaid period, he was asked to report for duty and his leave was refused. In spite of the same, he did not report for duty and continuously applied for leave for various spells. Later on, the University found that the letters sent in his name were received by one P.Sivagami. Hence, they requested the Superintendent of Police, Tiruchirappalli to find out the whereabouts of the petitioner. It was found that he was working in Saudi Arabia by using a false passport and giving false details.
7. Therefore, a charge memo was framed along with a questionnaire dated 13.11.1987. He filled up the questionnaire and it was sent without signing the same. He did not give any satisfactory reply for his long absence without any leave application. During the police enquiry, it was found that his wife's name was Sivagami. She had told the police that the petitioner had taken their daughter to Bombay for treatment for her mental illness. But, however, on enquiry by the police, it was revealed that he had gone to the Middle-East and was working there. For the charge memo dated 28.1.1998, the petitioner sent a reply dated 16.3.1998. He had stated that since he had worked for more than 28 years, he may be allowed to rejoin duty. He also pointed out that some other teaching staff had also gone abroad and were let off without punishment.
8. An enquiry was ordered by an Enquiry Committee and the petitioner was directed to appear before the Enquiry Committee. The enquiry was held on 16.3.1998. The Chairman of the Enquiry Committee submitted a report on 18.3.1998 holding the petitioner guilty of all the charges. A copy of the enquiry report was furnished to the petitioner. After getting his explanation, a show-cause notice was issued to him asking his reply as to why he should not be removed from service. The order of the first respondent Vice Chancellor was communicated by the second respondent Registrar. The petitioner instead of answering the show-cause notice sought for further time. However, as his request was not bona fide, the punishment of removal from service was passed against the petitioner.
9. The counter affidavit fully sets out the circumstances under which the petitioner was removed from service. It was submitted by Mr.M.Ravi, learned counsel for the petitioner that the order passed by the Registrar communicating the decision of the Vice Chancellor of the University was illegal and since the competent authority had not passed the impugned order, it is liable to be set aside. According to the learned counsel, removal from service is a major penalty and therefore the Vice Chancellor ought not have passed the impugned order.
10. However, Appendix X of the statutes framed under the Tamil Nadu Agricultural University Act clearly shows that in respect of non-teaching staff working in the University, removal from service can be done by the Vice Chancellor. In the present case, the order has been passed by the Vice Chancellor and the Registrar had only communicated the said order of the Vice Chancellor. Therefore, there is no lack of jurisdiction as contended by the learned counsel.
11. The further argument was that since the petitioner in the normal course would have reached the age of superannuation on 30.6.1998, his removal from service just two months prior to his date of superannuation was not proper especially when there were only 70 days for his retirement. He also submitted that he got a family and the punishment of removal would deprive him of his entire terminal benefits.
12. Learned counsel placed reliance upon the judgment of the Supreme Court in Yoginath D.Bagde -vs- State of Maharashtra and another reported in AIR 1999 SC 3734. It is for the purpose of showing that in case the disciplinary authority disagreed with the findings of the Enquiry Officer, before his disagreement he should have been given a show-cause notice. In the present case, such a contingency did not take place.
13. Mr.P.Srinivas, learned counsel for the first respondent University and Ms.D.Geetha, learned counsel for respondents 2 and 3 submitted that the petitioner was not prejudiced by the conduct of enquiry and he was given a long rope. Inasmuch as the petitioner had remained absent without any justification for long number of years, he is not entitled to be heard either on the manner of enquiry or on the proportionality of the punishment.
14. In this context, the learned counsel placed relied upon the judgment of the Supreme Court in Government of A.P. And others -vs- Mohd.Taher Ali reported in AIR 2008 SC 375. The passage found in paragraph 5 is relevant, which is as follows:-
''Para 5. Learned counsel appearing on behalf of the respondent submitted that in fact, the disciplinary authority while passing the order has taken into consideration the earlier absence of the respondent from the duty. He submitted that this could not have been taken into consideration as the respondent was not aware about these incidents and those were not the part of the charges levelled against him. In support of his submission, learned counsel for the respondent has invited our attention to the judgment of this Court titled State of Mysore -vs- V.K.Manche Gowda reported in 1964 (4) SCR 540, but in the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also absented himself from duty on earlier occasions also. In our opinion there can be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the chargesheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement."
15. He also further placed reliance upon the judgment of the Supreme Court in North Eastern Karnataka Road Transport Corporation -vs- Ashappa reported in (2006) 5 SCC 137 and referred to the passage found in paragraph 8 which reads as follows:-
''Para 8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organisation. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly."
16. In the light of the rival contentions, it is necessary to refer to certain decisions of the Supreme Court which will have a bearing on the present case.
17. The Supreme Court in Gujarat Electricity Board and another v. Atmaram Sungomal Poshani [1989 (2) SCC 602] held that no employee of a Public Undertaking has a right to be absent from duty without sanction of leave merely on account of pendency of his representation with the employer. Though it dealt with the case of an employee in not having obeyed an order of transfer, it will have relevance as in the present case, the petitioner had contended that his representation was pending with the University and he should have been given further opportunity to join duty.
18. In the case relating to Aligarh Muslim University and others v. Mansoor Ali Khan [2000 (7) SCC 529], the Supreme Court dealt with a case of absence of University employee obtaining EOL to join in another University in a foreign country. In that case, the Supreme Court in paragraphs 24 to 35 observed as follows:-
Para 24: "The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India, Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wades Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31) [I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma. In that case, the principle of prejudice has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P.
Para 25: The useless formality theory, it must be noted, is an exception. Apart from the class of cases of admitted or indisputable facts leading only to one conclusion referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.
Para 26: It will be sufficient, for the purpose of the case of Mr Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan, namely, that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr Mansoor Ali Khan though notice has not been issued.
Para 27: Our reasons for saying that the case of Mr Mansoor Ali Khan falls within the exception can be stated as follows:
Admittedly, leave was sanctioned only for 2 years from 18-4-1979. When before the expiry of the period, Mr Mansoor Ali Khan applied on 18-4-1981 for extension of leave by 3 more years, the University wrote to him on 17-9-1981/23-9-1981 granting extension only for one year from 18-4-1981 and also stated that he was required to resume duties by 18-4-1982. It did not stop there. It further forewarned Mr Khan as follows:
Please note that no further extension in the period of your leave will be possible and you are advised to make preparation for resuming duty positively by 18-4-1982. In other words, he was put on advance notice that it would not be possible to give any further extension i.e. beyond one year on the ground of continuance in the job at Libya and he was to resume duty by 18-4-1982. In fact, thereafter some special consideration was still shown in his favour by way of granting him joining time up to 1-7-1982. It was clearly said that otherwise he would be deemed to have vacated the post. If he had, in spite of this warning, gone ahead by accepting a further contract in Libya, it was, in our view, his own unilateral act in the teeth of the advance warning given. That conduct, the learned Single Judge thought and in our view rightly to be sufficient to deny relief under Article 226.
Para 28: We may state that the University has not acted unreasonably in informing him in advance while granting one year extension, in addition to the initial absence of 2 years that no further extension will be given. We have noticed that when the extension is sought for three years, the Department has given him extension only for one year as he had already availed 2 years extraordinary leave by that time. It has to be noticed that when employees go on foreign assignments which are secured by them at their own instance, in case they do not come back within the original period stipulated or before the expiration of the extended period, the employer in the parent country would be put to serious inconvenience and will find it difficult to make temporary alternative appointments to fill up the post during the period of absence of those who have gone abroad. However, when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In this case, giving of further extension only for one year out of the further period of three years sought for is not unreasonable. In such a situation, if the employee has entangled himself into further commitments abroad, he has to blame himself.
Para 29: On the above facts, the absence of a notice to show cause does not make any difference for the employee has already been told that if his further overstay is for continuing in the job in Libya, it is bound to be refused.
Para 30: Should notice have been given before he is deemed to have vacated office under Rule 5(8)(i)? Was no prejudice caused?
Para 31: Now the question of deeming the vacation of the post is mentioned both in Rule 10 which deals with 5 years absence and also by Rule 5(8)(i) where absence is for a period less than 5 years. In the latter case, it is true, notice is normally contemplated. We have said that Rule 10 has no application to the case before us since the absence of Mr Mansoor Ali Khans absence is less than 5 years. Now even under Rule 5(8)(i), there is a deeming provision of vacation of the post where the explanation offered by the employee, consequent upon a notice, is found not satisfactory.
Para 32: Let us then take two situations. An employee who is permitted to be abroad for two years on a job seeks extension for 3 years but is granted extension only for 1 year and is also told in advance that no further extension will be given and if he does not join after the 1-year extended period, he will be deemed to have vacated office. Let us assume that he does not join as advised and, in a given case, notice is given calling for his explanation. He replies stating that he had entered into a further commitment for 2 years and wants one more year of extension. The University refuses extension treating the explanation as unsatisfactory and under Rule 5(8)(i) deems that he has vacated his job. No fault can be found in the procedure. Let us take another situation where the officer does not join in identical circumstances but is not given notice under Rule 5(8)(i). He has no other explanation from what is revealed in his writ petition filed later other than his further commitment abroad for 2 more years. In the latter case, it is, in our opinion clear that even if no notice is given, the position would not have been different because that particular explanation would not be treated as satisfactory had already been intimated to him in advance. Therefore, the absence of a notice in the latter situation must be treated as having made no difference. That is precisely the position in the case of Shri Mansoor Ali Khan.
Para 33: Another important aspect of the matter is that no new reason has been projected in the writ petition of Mr Khan for his seeking further extension earlier while in Libya. The only reason stated is that he had obtained further extension in a job. It is not a case where there is a plea in the court that there were different grounds or reasons which he could have put in his explanation, if called for, such as ill health etc. Indeed, if the reasons could have been somewhat different, as may perhaps be disclosed or proved in a subsequent writ petition such as his own failing health, one can understand. But so far as leave for purposes of job continuance in Libya is concerned, he has been fully put on advance notice that no further extension will be given. It must be held that no prejudice has been caused even though no notice is given under Rule 5(8)(i).
Para 34: We may add a word of caution. Care must be taken, wherever the court is justifying a denial of natural justice, that its decision is not described as a preconceived view or one in substitution of the view of the authority who would have considered the explanation. That is why we have taken pains to examine in depth whether the case fits into the exception.
Para 35: Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason, that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L. Kapoor case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr Mansoor Ali Khan under Point 5."
19. The Supreme Court, however, in the case of V.C., Banaras Hindu University and others v. Shrikant [2006 (11) SCC 42] dealt with the case of a University Lecturer going for abroad and applying for extension of leave. In paragraphs 41, 57 and 60 of the judgment, it was observed as follows:-
Para 41: "Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of
Article 14 of the Constitution of India. If the action taken by the authority is found to be illogical in nature and, therefore, violative of
Article 14 of the Constitution, the same cannot be sustained. Statutory authority may pass an order which may otherwise be bona fide, but the same cannot be exercised in an unfair or unreasonable manner. The respondent has shown before us that his leave had been sanctioned by the Director being the Head of the Department in terms of the Leave Rules. It was the Director/Head of the Department who could sanction the leave. Even the matter relating to grant of permission for his going abroad had been recommended by the Director. The respondent states, and it had not been controverted, that some other doctor was given the charge of his duties. We have indicated sufficiently that the Vice-Chancellor posed unto himself a wrong question. A wrong question leads to a wrong answer. When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefor, he misdirects himself in law. In such an event, an order of the statutory authority must he held to be vitiated in law. It suffers from an error of law."
Para 57: "The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorised absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank v. Sakattar Singh."
Para 60: "A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding: (SCC p. 345, para 20) A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.
20. Therefore, the argument based upon the principles of natural justice has no application in the present case as the petitioner was sufficiently informed that his refusal to join the post on the stipulated date will render him as having left the services of the University.