Surender Prasad v. Central Public Works Department

(i) the Appellant was honorably acquitted by the Additional Sessions Judge,

(ii) no departmental enquiry was conducted by the Respondent qua the

Appellant. Therefore, it is his contention that the Appellant‟s services could not have been terminated by the Respondent; and neither could the Appellant‟s absence from duty be termed to be willful misconduct. Reliance in this regard has been placed on a decision of the Supreme Court in Nar Singh Pal Vs. Union of India, (2000) 3 SCC 588; a decision of the Hon‟ble High Court of Orissa in Md. Mazim Vs. District Transport Manager (Admn.) Orissa State Transport Services and Ors., MANU/OR/0124/1974; and a decision of the Hon‟ble High Court of Himachal Pradesh in H.P. & Ors. Vs. Dr. Parvesh Thakur, 2020 SCC OnLine HP 3474.

16. Lastly, the Ld. Counsel for the Appellant has submitted that the Award 2 passed by the Ld. CGIT did not suffer from any perversity that warranted interference by the Ld. Single Judge exercising his writ jurisdiction under Article 226 of the Constitution of India. Reliance in this regard has been placed on Asha Ram (Supra).

17. The Ld. Counsel for the Respondent has re-iterated the stand taken before the Ld. Single Judge in the Writ Petition and accordingly, submits Digitaaly that the Impugned Judgement suffers from no infirmity.

18. Heard the Ld. Counsels for the parties at length and perused the record. The present matter is being disposed of at the motion hearing stage itself with the consent of the parties.

19. The facts of the present case reveal that the Appellant was engaged as a Muster Roll Assistant Wireman by the Respondent with effect from 27.01.1983. Subsequently, the Appellant‟s services are stated to have been terminated with effect from 05.05.1989 by the Respondent on account of inter alia willful unauthorized absence; and on account of the Appellant being arraigned as an accused in the FIR and consequently arrested by Delhi Police. Undisputedly, the Appellant was acquitted by the Additional Sessions Judge, Tis Hazari Court, Delhi vide judgment of acquittal dated 26.07.1994. Thereafter, the Respondent did not reinstate the services of the Appellant. Aggrieved, the Appellant instituted an ID which culminated into Award 1. Aggrieved by Award 1, the Respondent herein challenged the same before this Hon‟ble Court by way of a W.P. (C) 401 of 2003. This Hon‟ble Court vide an order dated 18.03.2004 was pleased to remand the matter back to Ld. CGIT with a direction to consider the matter afresh. The Ld. CGIT on a consideration of the matter afresh came to pass Award 2. Aggrieved by Award 2, the Respondent herein challenged the same by way of the underlying writ petition before this Hon‟ble Court. This Hon‟ble Court was pleased to set aside Award 2 by way of the Impugned Judgment.

20. This Court has carefully considered the Impugned Judgement. In this Court‟s considered opinion, the Ld. Single Judge has carefully examined the Digitaaly Policy issued by the Respondent.The Ld. Single Judge has come to a conclusion that the Respondent was justified in terminating the Appellant‟s service as a muster roll employee in light of the Appellant‟s continued incarceration in the custody of Delhi Police exceeding over 48 (forty-eight) hours.

21. In this context, it would be relevant to consider the Policy. The same is reproduced as under: “1.That the matter was discussed with the representatives of the Union. The procedures adopted in CWPD is that whenever muster roll workers/causal labour is arrested on several criminal charges like murder, theft, rape, etc. and is detained by the police in its custody for more than 48 hours, the token ofsuch worker is taken by the Executive Engineer and he is not allowed to work till he is clearly exonerated by the Court.

2. Except where notice is necessary under any statutory obligation no notice is required for termination of services of the muster roll worker/causal labour. Their services will be deemed to have been terminated when they absent themselves on the close of the day. The existing practice should continue till some alternative is decided upon. ”

22. Under the terms of the Policy the Respondent could validly terminate the services of the inter alia a muster roll employee in the event of an arrest and continued incarceration exceeding 48 (forty-eight) hours of such employee in the event such arrest and incarceration relates to serious criminal charges such as murder. Accordingly, this Court finds no infirmity with the findings of the Ld. Single Judge in relation to the ability of the Respondent to take appropriate action against the Appellant.

23. Ld. Counsel for the Appellant has also advanced an argument vis-à- Digitaaly vis (i) the non-satisfaction of condition precedents under Section 25F of the ID Act; and (ii) consequently a violation of Section 25J of the ID Act. This Court is of the considered opinion that the reliance placed by the Appellant on provisions of the ID Act is erroneous. Under Section 2(oo) of the ID Act the term „retrenchment‟ has been defined. The same is reproduced as under: “Section 2 Definitions ……… (oo) retrenchment means the termination by the employer of the service of a workman for any any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include— (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health; …………”

24. The Appellant‟s absence from duty led to his name being struck off the Respondent‟s muster roll of employees. Undisputedly, the Appellant could not be reinstated up until his acquittal from the proceedings emanating out of the FIR as per the Respondent‟s Policy outlined above in Paragraph Digitaaly 21 of this Judgement. Thereafter, the Appellant was acquitted by the Additional Sessions Judge, Tis Hazari Court, Delhi. However, as rightly observed by the Ld. Single Judge, the Policy enacted by the Respondent did not contemplate any automatic reinstatement of an employee solely on the ground that he / she has been acquitted from the underlying criminal proceedings. In this context, the striking-off of the name of the Appellant from the Respondent‟s muster roll of employees on account of his willful absence would not attract the rigors of Section 25F and Section 25J of the ID Act. Accordingly, in the peculiar facts and circumstances of this case, the reliance placed on Anoop Sharma (Supra) is misdirected.

25. The Ld. Counsel for the Appellant placed reliance on Krushnakant B. Parmar (Supra) on the ground that the Appellant‟s absence from service was on account of extenuating circumstances i.e., his arrest in relation to the FIR and accordingly, his absence could not be held to be willful. Pertinently, the Appellant reported on duty last on 04.05.1989 and thereafter was arrested and produced before the Magistrate on 12.05.1989. On perusal of the record, this Court finds that the Appellant failed to establish any extenuating circumstances justifying his willful unauthorized absence from duty. All that was presented before the Ld. Single Judge were bald averments and unsubstantiated submissions qua an allegedly illegal arrest. Accordingly, the reliance placed on Krushnakant B. Parmar (Supra) is erroneous.

26. The Ld. Counsel for the Appellant has also placed reliance upon D.K. Yadav (Supra) alleging contravention of „principles of natural justice and fair play’ by the Respondent qua the Appellant. In D.K. Yadav (Supra) the Digitaaly muster roll employee was deemed „willfully absent‟ and subsequently terminated. On a perusal of the facts of the case it emerges that the appellant therein was restrained and not permitted to sign the attendance register which led to him being deemed „willfully absent‟. Therefore, D.K. Yadav (Supra) is distinguishable on facts. It would be important to underscore that the Supreme Court in D.K. Yadav (Supra) also carves out an exception to the applicability of „principles of natural justice and fair play’, which has been stated as under:

27. Furthermore, it would be pertinent to mention the decision of the Supreme Court in Vijay S. Sathaye v. Indian Airlines Ltd., (2013) 10 SCC 253 wherein the Supreme Court has observed as under: “12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.

13. In Jeewanlal (1929) Ltd. v. Workmen [AIR 1961 SC 1567] this Court held as under: (AIR p. 1570, para 6) “6. … there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.” (See also Shahoodul Haque v. Registrar, Coop. Societies [(1975) 3 SCC 108: 1974 SCC (L&S) 498: AIR 1974 SC 1896].)

14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as “retrenchment” from service. (See State of Haryana v. Om Parkash [(1998) 8 SCC 733: 1999 SCC (L&S) 262].) Digitaaly

15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah [AIR 1964 SC 1272], while dealing with a similar case, this Court observed: (AIR p. 1275, para 5)

A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590: 1979 SCC (L&S) 76: AIR 1979 SC 582]

16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC 65: 2000 SCC (L&S) 601] and Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529: 2002 SCC (L&S) 965: AIR 2000 SC 2783] this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant [(2006) 11 SCC 42: (2007) 1 SCC (L&S) 327], Chief Engineer (Construction) v. Keshava Rao [(2005) 11 SCC 229: 2005 SCC (L&S) 872] and Bank of Baroda v. Anita Nandrajog [(2009) 9 SCC 462: (2009) 2 SCC (L&S) 689] ”

28. As observed by the Supreme Court in D.K. Yadav (Supra), the „principles of natural justice‟ may be excluded in given special and exceptional exigencies. In the considered opinion of this Court, the „principles of natural justice‟ were dispensed with herein in a special and exceptional circumstance i.e., on account of resignation by the employee and / or prolonged incarceration as a result of involvement in a serious criminal Digitaaly case. Therefore relying on the decision of the Supreme Court in Vijay S. Sathaye (Supra), this Court is of the opinion that the reliance placed on D.K. Yadav (Supra) is misguided.

29. The Ld. Counsel for the Appellant has placed reliance on Praveen Kumar Jain (Supra). In said case, the Supreme Court observed that the termination order for services of a muster roll employee on account of misconduct was bad in law as it did not originate from any departmental enquiry. Similarly, reliance has been placed on a decision of this Hon‟ble Court in Haryana Roadways, Delhi (Supra) wherein a daily wage sweeper‟s services were terminated on account of misconduct due to unauthorised absence from duty for a period of 4 (four) days. In the considered opinion of this Court, the Appellant‟s reliance on Praveen Kumar Jain (Supra) and Haryana Roadways, Delhi (Supra) is wholly misconstrued and distinguishable entirely on facts. The Appellant herein was not terminated on account of misconduct and in fact, willfully remained unauthorizedly absent from service; and thereafter was found embroiled in a serious criminal case which prohibited the Respondent from re-engaging his services up until he was finally acquitted.

30. The Ld. Counsel for the Appellant has placed reliance on Nar Singh Pal (Supra) wherein the Supreme Court has observed that inter alia the involvement in a criminal cannot be made the basis for termination of services of a temporary employee. Accordingly, this Court is of the considered opinion that the said case is distinguishable on facts as the Appellant herein willfully remained unauthorizedly absent from service; and thereafter was incarcerated on account of a serious criminal case. The case Digitaaly herein cannot be construed to be one wherein an employee was terminated solely on account of involvement in a criminal case and accordingly, the principle evolved in Nar Singh Pal (Supra) is inapplicable herein.

31. The attention of this Court was also drawn to Md. Mazim (Supra) and Dr. Parvesh Thakur (Supra). This Court has perused the aforementioned judgements and is of the considered opinion that the same have no bearing on the present L.P.A as neither is the Appellant a permanent employee of the Respondent who was suspended on account of involvement in a criminal case nor was the Appellant‟s service terminated solely on the basis of involvement and incarceration in relation to a criminal case. As has been observed repeatedly, the Appellant willfully remained unauthorizedly absent from service in addition to him being named in the FIR and subsequently incarcerated. Accordingly, neither Md. Mazim (Supra) nor Dr. Parvesh Thakur (Supra) are applicable to the facts of the present case.

32. Relying on Asha Ram (Supra), the Appellant contended before this Court that the scope of interference by a court exercising its writ jurisdiction under Article 226 of the Constitution of India is limited. While this Court does not disagree with the aforesaid contention, it is well settled that a supervisory court may interfere with the findings of a fact-finding forum in the event such findings are perverse. Thus, relying on the decision of the Supreme Court in Puri Investments v. Young Friends & Co., 2022 SCC OnLine SC 283 this Court is of the opinion that the Ld. Single Judge rightly interfered with the decision of the Ld. CGIT as the underlying award was perverse on account of conclusions contrary to the evidence i.e., the Ld. CGIT observed that reinstatement of the Appellant was mandatory on Digitaaly account of the Policy whereas the Policy does not envisage any mandatory reinstatement.

33. The Ld. Counsel for the Appellant has relied upon a judgment delivered in the case of H.D. Singh (Supra), and it has been argued that striking off the name of an employee from the muster rolls amounted to termination and accordingly invited the rigors of Section 25F of the ID Act. In the considered opinion of this Court the aforementioned decision does not apply to the facts of the present case wherein the Appellant has willfully remained absent from service and thereafter could not be reinstated on account of his involvement in a serious criminal case as encapsulated more particularly above.

34. Lastly, the Ld. Counsel for the Appellant has placed reliance on a decision of the Supreme Court in Surinder Singh v. CPWD, (1986) 1 SCC 639; and a decision of this Hon‟ble High Court in Director General of Works v. Regional Labour Commissioner, 2013 SCC OnLine Del 1410 contending that Appellant herein ought to have been paid wages equal to that of a regular employee. In the considered opinion of this Court, the said reliance is misconstrued. This Hon‟ble Court in Director General of Works (Supra) itself observed that the doctrine of equal pay for equal work had evolved beyond Surinder Singh (Supra) and clarified that the decision in Director General of Works (Supra) was rendered on account of the „principle of finality‟. Accordingly, the reliance placed by the Appellant on the aforementioned judgments is wholly erroneous.

35. This Court is cognizant of the role of a court exercising writ Digitaaly jurisdiction under Article 226 of the Constitution of India vis-à-vis a factfinding forum such as the Ld. CGIT as expounded in Puri Investments (Supra). Accordingly, this Court has perused the record and is of the considered opinion that the case herein was a fit case for the Ld. Single Judge to disturb the observations of a fact-finding forum. Additionally, it would be pertinent to note that the Appellant has received the benefit of wages of under Section 17-B of the ID Act for a considerable period of time.

36. Therefore, in consideration of the totality of circumstances of this present case, this Court finds no reason to interfere with the Impugned Judgement. Accordingly, the present L.P.A stands dismissed.

SATISH CHANDRA SHARMA, CJ SANJEEV NARULA, J. SEPTEMBER 6, 2023 Digitaaly