9911796707
TMI Blog2006 (2) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... delay and laches and the respondents are to be directed not to proceed further on the basis of the said notice. I must also to say that even if liberty is available to the petitioner, delay is fatal in the case on hand. It would therefore appear from the above observations made in the impugned order that the learned Single Judge has interfered with the impugned show-cause notice mainly on the ground of delay and laches and the appellant-employer has been directed not to proceed further on the basis of the said notice. This appears to be the sole reason, which weighed with the learned Single Judge to interfere with the show-cause notice issued by the appellant-employer to the respondent-employee. 2. It would be of some relevance to note here itself that when the appeal came up for preliminary hearing before the Division Bench on 13-9-2005, after the arguments were heard in part, learned Counsels for the parties requested for time to make efforts to arrive at an amicable settlement and the Court also felt that, that would be most appropriate in the circumstances of the case on hand and accordingly, adjourned the matter to 19-9-2005. Subsequently, when the matter came up for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der made by this Court on 23-12-2005 that pursuant to the impugned show-cause notice, the enquiry has already been initiated against the respondent and a final report has already been submitted. The enquiry seems to be at the stage of issue of a second show-cause notice to the respondent. In fact, the order made by this Court on 23-12-2005 was almost in the nature of a modification of the earlier order. Thereafter, on 3-1-2006, the Bench comprising of the learned Judges Sri P. Vishwanatha Shetty, J. and Sri Huluvadi G. Ramesh, J. directed the office to list the appeal before a Bench in which the learned Judge Sri Vishwanatha Shetty is not a member; after obtaining the orders of the Hon'ble Chief Justice. Accordingly, after obtaining the orders of the Hon'ble Chief Justice, the matter has been placed before us. This is how the matter has come up before us. 3. The background facts in a nutshell are as follows.- The respondent herein was appointed by the appellant on contract basis for a period of 3 years in terms of a letter sent to him on 21-8-1987. The terms stated in the said letter are that for the said period, the respondent would be on probation which is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings and after allowing the appellant an opportunity to show cause, the allegations of misconduct are not proved and the proceedings dropped, the appellant in that eventuality, shall be entitled to the payment of the aforesaid arrears along with interest at the rate of 18% per annum. Consequent upon such order made by the Division Bench of this Court, the respondent was reinstated on 6-11-1996. Thereafter, a show-cause notice was issued on 8-11-1996. Reply thereto was submitted on 18-12-1996. After affording personal hearing, by an order dated 23-8-1997, the respondent was discharged from service. A statutory appeal was filed by the respondent and the same was rejected. Thereafter the respondent filed a writ petition and the learned Single Judge of this Court by an order in the case of Y.N. Krishnamurthy v. Karnataka Silk Industries Corporation Limited, Bangalore 2001(9) Kar. L.J 488 allowed the writ petition and ordered reinstatement with full backwages and continuity of service. The operative portion of the said order passed by the learned Single Judge in Y.N. Krishna Murthy's 2001(9) Kar. L.J 488 case, reads as under: 16. In the light of these two judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f notices that the punishment inflicted is proportionate to the shortcomings/misconduct of the appellant and action of the management is purely based on documentary evidences and his poor performance in discharging of duties. It is absolutely not known to me as to why the Board has approved the punishment order without any enquiry. Suffice it to say that the Board has equally not applied its mind to the facts of the case and therefore it requires my interference at this stage. 19. The Counsel for the management submits that the matter may be remanded to the Board for reconsideration. In the normal circumstances that request could have been accepted but in this case, I am convicted that a serious legal error is committed in the original order and no useful purpose is served in remitting the matter to the Board. In these circumstances, taking into consideration, the factual aspect of the matter, the earlier direction of this Court and its legal effect on the order and the case-laws on the subject, I deem it proper to allow this petition in its entirety and set aside the impugned order. Petitioner is entitled for reinstatement with full back wages and continuity of service and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay, the Court has to render justice by issuing appropriate direction to arrest delayed proceedings. This is one such rare case where the Court has to interfere to arrest unreasonable delayed action on the part of the respondent. 17. Before concluding, I also deem it proper to observe that Danda is not the only method to maintain discipline. There are several methods available to correct an erring workmen. Management can, even without resorting to Danda , adopt any other method in the matter. Repeated threat of 'Danda' would only create bitterness among the employer and employees. Employees form part of the establishment. Employer and employees are two eyes of an establishment. Unless both eyes work in a right direction, body industry would suffer. Therefore, what I want to emphasis is that the employer need not always use 'Danda' as the only weapon to correct the employees. 18. In the facts and circumstances of this case, I accept this petition. A direction is issued to the respondent not to proceed further in terms of the show-cause notice impugned in this petition. 19. In the normal circumstances, I would not have imposed costs. The presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired of the respondent to reply to the show-cause notice. But a writ petition was filed on the ground that the show-cause notice issued was without jurisdiction in view of the order passed by this Court in Y.N. Krishna Murthy's 2001(9) Kar. L.J 488 case. Though the learned Single Judge noticed that right of an employer to initiate proceedings against a workman is always to be respected and acted upon, but proceeded to interfere with the impugned show-cause notice on the ground of delay and laches on the part of the appellant in initiating action against the respondent, which ground was neither pleaded nor argued. Hence, the impugned order made by the learned Single Judge warrants interference in the appeal by this Court. 6. In support of his submissions, the learned Counsel for the appellant has placed reliance upon the following decisions: 1. V.K. Majotra v. Union of India AIR 2003 SC 3909 ; 2. Food Corporation of India and George Varghese and Anr. AIR 1991 SC 1115 ; 3. Registrar of Co-operative Societies, Madras and Anr. v. F.X. Fernando (1994) I LLJ 819 SC ; 4. State of Punjab v. Chamanlal Goyal (1995) II LLJ 679 SC ; 5. B.C. Chaturvedi v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not implemented till now. In December 2001, the respondent was posted to Audit Department after the show room was closed down during the year September 2001. Again on 14-2-2005 a show-cause notice-cum-charge-sheet was issued alleging the same charges contained in the earlier charge-sheet. The respondent challenged the charge-sheet in Y.N. Krishna Murthy's (1) case, in which stay has been granted by the learned Single Judge on 24-2-2005. The learned Single Judge allowed the writ petition and imposed costs of ₹ 10,000/- on the appellant vide the impugned order dated 12-7-2005. The appellant preferred the present writ appeal and obtained stay order. This is a case where the management is bent upon removing the respondent from service by adopting improper means. Though the Division Bench had specifically indicated to hold an enquiry, the Management without holding an enquiry removed the respondent from service. In the circumstances, the learned Single Judge of this Court in Y.N. Krishna Murthy's (3) case, gave a quietus to the matter by allowing the writ petition in its entirety and directing the respondent to be reinstated with full back wages and continuity of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent has placed reliance upon the following decisions: I. Regarding delay in issuing the charge-sheet: a. State of Madhya Pradesh v. Bani Singh and Anr. 1990 CriLJ 1315 ; b. State of Andhra Pradesh v. N. Radhakishan [1998] 2 SCR 693 ; c. N. Krishna Murthy v. Syndicate Bank, Manipal, Dakshina Kannada and Ors. (2001) II ILLJ 363 Kant ; d. N.B. Kulkarni v. Life Insurance Corporation of India, Bombay and Ors. ILR 1999 KAR 2677 ; e. P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board (2005) III LLJ 527 SC . II. Regarding vague charges: a. Management of the Northern Railway Co-operative Credit Society Limited, Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur and Anr. (1967) II LLJ 46 SC ; b. Transport Commissioner, Madras-5 v. A. Radha Krishna Moorthy (1995) 1 SCC 332 ; c. G.V. Aswathanarayana v. Central Bank of India, Bombay and Ors. (2004) I LLJ 36 Kant ; d. Surath Chandra Chakravarty v. State of West Bengal (1971) I LLJ 293 SC ; e. Sawai Singh v. State of Rajasthan (1986) II LLJ 390 SC . III. Regarding double jeopardy: a. State of Assam and Anr. v. J.N. Roy Biswas (1976) II LLJ 17 SC ; b. A. Gopala Rao v. The Post Mast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct upon the learned Single Judge or did not weigh with the learned Single Judge. In fact the learned Single Judge himself has observed in the impugned order that the employer has every right to initiate disciplinary proceedings against an erring employee and there cannot be any two opinions on this aspect. Having so noticed the rights of an employer, the learned Single Judge has however proceeded to interfere with the impugned show-cause notice on account of delay and laches on the part of the appellant-employer in initiating action against the respondent. Admittedly, no such ground of delay and laches on the part of the appellant-employer was either pleaded in the writ petition or urged on behalf of the writ petitioner at the time of the arguments before the learned Single Judge. According to the learned Single Judge, the delay in initiating action against the respondent is fatal to the case on hand. The delay on the part of the employer in initiating action against the writ petitioner was not a ground taken by the writ petitioner and there was absolutely no opportunity for the appellant-employer to meet such ground. The factor with regard to the delay in initiating the disciplina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue to bear with an employee who according to the employer is not at all suitable to the post which he has holding. It is now well-settled that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. When the factual scenario of the present case is considered in the background of the above settled legal principles, the inevitable conclusion is that the learned Single Judge was not justified in interfering with the show-cause notice issued by the appellant to the respondent. It is needless to point out that many a times the enquiries will be fact finding preceded by issue of a show-cause notice in order to find out whether an employee is or is not suitable to the post and whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-employee had been given a clean chit of all such charges levelled against him and that he enjoyed an immunity from such charges for all time to come. That apart, it has to be pointed out that impugned show-cause notice makes reference to some omissions and commissions which were subsequent to the date of the earlier order. We are therefore of the view that in the facts and circumstances of the case on hand, there was absolutely no occasion for the learned Single Judge to have interrupted the proceedings at the stage of the issuance of the show-cause notice itself. The Hon'ble Supreme Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find out actual facts with the participation and in the presence of the parties. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (c) of the Act providing for recruitment to the post of Vice-Chairman from amongst the administrative services have been put at naught/obliterated from the statute book without striking them down as no appointment from amongst the categories mentioned clauses (b), (bb) and (c) could now be made. So long as Section 6(2)(b), (bb) and (c) remains on the statute book such a direction could not be issued by the High Court. With respect to the learned Judges of the High Court we would say that the learned Judges have over stepped their jurisdiction in giving a direction beyond the pleadings or the points raised by the parties during the course of the arguments. The writ Courts would be well-advised to decide the petitions on the points raised in the petition and if in a case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to the notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise. We leave the discussion here. 9. We are also in agreement with the submissions made by the Counsel for the appellants that the High Court ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probationer. True, a probationer like a temporary servant or employee is also entitled to certain protection and his or her services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. But, this stage has not yet reached and it is too premature to say that the respondent had been terminated arbitrarily or in a punitive manner. This is because the action initiated by the employer by issue of the impugned show-cause notice is yet to be concluded or finalised. 11. In the case of Krishnadevaraya Education Trust and Anr. v. L.A. Balakrishna [2001] 1 SCR 387 the Hon'ble Supreme Court has observed as under: 5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee being on contractual basis could be terminated at any time without assigning any reason with 24 hours notice from either side - Reference was made to alleged misconduct of employee in order - Misconduct referred to, was motive and not foundation - It is case of termination simpliciter - Does not involve civil consequences - Principles of natural justice not required to be complied with. 14. We are therefore of the clear view that this is not a stage at which the learned Single Judge could have interfered with the matter. 15. In the case of Special Director and Anr. v. Mohd. Ghulam Chouse and Anr. 2004 (164) ELT 141 (SC) the Hon'ble Supreme Court has held as under: The practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties is deprecated. Unless, the High Court is satisfied that the show-cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully perused the decisions relied upon by the learned Counsel for the respondent and we find that the principles enunciated in those decisions have no application to the facts and circumstances of the case on hand. In fact, the principles enunciated in the decisions relied upon by the learned Counsels for the parties were kept in mind, while dealing with the facts and circumstances of the case on hand and we find that the decisions relied upon by the learned Counsel for the respondent have absolutely no application to the facts and circumstances of the case on hand. Therefore, there is no need to make reference to each of those decisions relied upon by the learned Counsel for the respondent. Suffice it to say that the principles enunciated therein have no application to the facts and circumstances of this case. 19. In the result, this writ appeal filed by the appellant is allowed. The impugned order made by the learned Single Judge is hereby set aside. The respondent is hereby directed to offer his explanation to the show-cause notice, if he has not yet offered his explanation to the same and in case any adverse order passed against him, liberty is granted to approach the Compet ..... 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