http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: MAFATLAL NARAINDAS BAROT

       Vs.

RESPONDENT: DIVISIONAL  CONTROLLER,  STATE  TRANSPORT  CORPORATION   AND

DATE OF JUDGMENT: 13/12/1965

BENCH: SATYANARAYANARAJU, P. BENCH: SATYANARAYANARAJU, P. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V.

CITATION:  1966 AIR 1364            1966 SCR  (3)  40  CITATOR INFO :  R          1971 SC1828  (11)  RF         1973 SC 855  (24,26)  RF         1975 SC1331  (26,27,31,171,188,189)  R          1976 SC 888  (31)  R          1980 SC 840  (11)  RF         1989 SC 341  (11)

ACT: Dismissal-employee  absent  without  leave  and  failing  to report  for duty when directed-Dismissed on payment  of  two months’  salary  in  lieu  of  notice-Regulations  governing service  condition providing for opportunity to  show  cause against  proposed punishment not complied with--Property  of dismissal.

HEADNOTE: The   appellant,  who  was  a  permanent  employee  of   the respondent  State  Transport Corporation,  proceeded  on  15 days’  leave on January 15, 1962 and thereafter applied  for an  extension  of  his  leave  on  medical  grounds.    This extension  was  refused  and  although  the  appellant   was directed to report for duty immediately, he continued to  be absent  and  wrote  to  the respondent  on  March  3,  1963, intimating him of his inability to join duty as he was still not  well.   By an order of the respondent  dated  March  9, 1962,  the appellant’s services were terminated with  effect from January 16, 1962 on the ground of long absence. After   his   representations  and  an  appeal   to   higher authorities  in  the  ;Corporation had  been  rejected,  the appellant  filed  a petition for a writ  of Certiorari  to quash  the dismissal order, but this petition was  dismissed in limine. It  was  contended  on  behalf  of  the  appellant  that  in accordance with Clauses 4(b), 38 and 40 of Schedule A to the Regulations  governing  his  service  conditions,  a  charge should have been framed against him and that be was entitled to  an  opportunity  to  show  cause  against  the  proposed ’punishment.   On  the other hand it  was  the  respondents’ contention  that though the order of dismissal  referred  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

long  absence as the cause of termination,  the  termination itself  was not by way of punishment and the only  right  of the appellant under Regulation 61 was to two months’  notice in   lieu   of  pay;  and  that  an   examination   of   the correspondence and the circumstances of the case showed that the  appellant had been given to opportunity to  show  cause and that there was in fact and in substance compliance  with the rules of natural justice. HELD : The order of termination passed against the appellant must  be quashed as it was bad in law since  it  contravened the  provisions of cl. 4(b) of the Regulations and also  the principles of natural justice. [44 B] Clauses  38 and 40 provided that absence without  leave  and without  reasonable cause, and failure,  without  sufficient cause.. to report for duty when directed amount to acts  of misconduct.   Under clause 4(b) it was therefore  obligatory on  the  part  of the respondent to  give  the  appellant  a reasonable opportunity to show cause, by providing him  with a copy of the charge or charges as well as the statement  of the allegations that had been made against him. [43 F] 41

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil APPEAL  No. 757 of 1964. Appeal  by Special Leave from the Judgment and Order,  dated the  28th  May, 1963 of the Gujarat High  Court  in  Special Civil Application No. 419 of 1963. R.   Gopalakrishnan, for the appellant. N.   S. Bindra and B. R. G. K. A char, for the respondent. The Judgment of the Court was delivered by Satyanarayana  Raju,  J. This appeal, by special  leave,  is against the judgment and order of the High Court of  Gujarat at  Ahmedabad, dated May 28, 1963, dismissing in  limine  an application  filed  by the appellant under Art. 226  of  the Constitution. The  facts material for the purposes of this appeal  may  be briefly  stated.  ’Me appellant was a permanent employee  of the   State  Transport  Corporation,  Gujarat,   hereinafter referred to as the Corporation.  At the material time he was employed   as  a  Writer  in  the  Visnagar  Depot  of   the Corporation in Mahasana District.  On January 15, 1962,  the appellant  applied  to  the  Divisional  Controller,   State Transport,  Mahasana,  for leave for 15 days on  the  ground that he had to attend to his ’personal work.  On January 16, 1962, he was transferred from Visnagar to Ambaji where there was  a  vacancy  in the office of  the  Depot  Manager.   On January 31, 1962, a formal order transferring the  appellant from  Visnagar to Ambaji was passed, and he was directed  to join duty at Ambaji. On  that date, the appellant applied for extension of  leave on medical grounds but his request was refused by an  order, dated February 15, 1962.  He was directed to report for duty at  Ambaji within 48 hours of the receipt of notice  failing which, he was warned, he would be removed from service.   On March  3,  1962,  the  appellant  wrote  a  letter  to   the Divisional  Controller  intimating him of his  inability  to join  duty  as he was still not well.  To  this  letter,  he enclosed a medical certificate. By  an  order,  dated March 9, 1962,  the  services  of  the appellant were terminated with effect from January 16, 1962, on  the  ground  of  long absence.   The  appellant  made  a representation  to  the Divisional Controller on  March  17,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

1962  and  thereafter  preferred an appeal  to  the  General Manager of the Corporation.  Both of them were rejected.   A further appeal preferred by him to the  L9SUPCI/66--4 4 2 appellate  Committee was also unsuccessful.   The  Committee held that the leave applications of the appellant were  made only with a view to evade joining duty at Ambaji. The  appellant  applied to the High Court of  Gujarat  under Arts.  226  and  227 of  the  Constitution,  impleading  the Divisional Controller as respondent, for the issue of a writ of  certriorari  to  quash  the  order  of  dismissal.   His petition  was dismissed in limine on May 28, 1963.  On  June 17, 1963, the appellant applied for a certificate to  appeal to this Court but it was refused.  Thereafter he applied for special leave and that was granted by this Court. It  may  be stated at the outset that the respondent  is  an autonomous statutory Corporation formed under the provisions of  the  Road Transport Corporations Act, 1950.  It  is  not disputed that the appellant could not invoke the  provisions of Art. 311 of the Constitution. The  short  question  for determination  in  the  appeal  is whether the appellant was entitled to an opportunity to show cause  against  the  proposed  punishment  as  required   by regulation  No.  61  of the  Regulations  which  govern  the service conditions of the employees of the Corporation.   It is admitted that no charge was framed against him nor was he given an opportunity to show cause. It is contended for the respondent that though the order  of termination  referred  to  long  absence  as  the  cause  of termination,  the  termination  itself was  not  by  way  of punishment  and the only right of the appellant was  to  two months’ pay in lieu of notice under regulation No. 61,  that assuming that the termination was by way of punishment,  the appellant,  as would be evident from the correspondence  and the circumstances of the case, had been given an opportunity to  show cause and that there was in fact and  in  substance compliance with the rules of natural justice. We  may, at this stage, read the relevant regulations  which admittedly govern the service conditions of the employees of the G Corporation.  Regulation No. 61 provides as follows :               "The service of an employee, who does not hold               a permanent appointment in State Transport  or               a  lien  on  a permanent  appointment  in  any               Government   Department  from  which   he   is               transferred,  are liable to be  terminated  by               the  Competent Authority by giving a  calendar               month’s  notice or a calendar month’s  pay  in               lieu :                                     43               Provided  that the services of casual  workers               and  part  time  workers  may  be   terminated               without any notice;               Provided further that a permanent employee  of               State Transport shall be entitled to 60  days’               notice or 60 days’ pay in lieu."               Clauses 3 8, 40 and 4 (b) of Schedule A to the               Regulations provide:               "38.   Irregular attendance,  absence  without               leave and without reasonable cause and absence               without permission."               40.Failure,  without sufficient  cause,  to               report,  when directed, for duty, on the  part               of  an  employee  to whom  the  leave  he  has               applied for is refused."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

             "4(b).   A  person  against  whom  action   is               proposed   to   be  taken  for  any   act   of               misconduct,  shall be provided with a copy  of               the  charge or charges as well as a  statement               of  allegations  that have been  made  against               him, and over which enquiry is being held."               Clause 3 defines two classes of offences named               acts  of  misconduct  and  minor  lapses   and               delinquencies,  respectively and sub cl.  (ii)               of   cl.   3  states  inter  alia   that   the               misconducts are those specified in Schedule A. Regulations  38  and 40 provide that  irregular  attendance, absence  without  leave  and without  reasonable  cause  and failure, without sufficient cause, to report, when directed, for  duty  amount  to acts of misconduct.   Clause  4(b)  is specific and clear.  Under that clause, it is obligatory  on the  part  of  the  respondent,  to  give  the  appellant  a reasonable opportunity to show cause, by providing him  with a copy of the charge or charges, as well as the statement of the   allegations   that  have  been   made   against   him. Admittedly,  the respondent did not frame a  charge  against the appellant nor conduct any enquiry. It  is true that the respondent may visit the punishment  of discharge  or  removal  from service on  a  person  who  has absented himself without leave and without reasonable cause, but  this  cannot  entail  automatic  removal  from  service without  giving such person reasonable opportunity  to  show cause why he be not removed.  The appellant is entitled to a reasonable  opportunity  to  show cause  which  includes  an opportunity  to deny his guilt and establish  his  innocence which  he  can  do,  only when he  knows  what  the  charges levelled against him are and the allegations on 44 which  such charges are based.In our judgment the  appellant was  entitled  to an opportunity to show cause  against  the action proposed to be taken against him. The order of termination passed against the appellant is bad in  law since it contravenes the provisions of cl.  4(b)  of the  Regulation and also the principles of natural  justice. In all the circumstances of the case, we are satisfied  that the  impugned order must be quashed.  A writ  of  certiorari will accordingly issue quashing the order of dismissal,  but this  will not preclude the respondent from making  a  fresh enquiry  against the appellant after giving  him  reasonable opportunity to show cause as provided under cl. 4(b) of  the regulations. The  appeal  is accordingly allowed, but there  will  be  no order as to costs. Appeal allowed. 45