Thangaraj v. The Vice Chancellor, Tamil Nadu Agricultural University, Coimbatore-641 003
Case at a glance
Provisions considered
Key paragraphs
- Para 1414. In this context, the learned counsel placed relied upon thejudgment of the Supreme Court in Government of A.P. And others -vs-Mohd. Taher Ali reported in AIR 2008 SC 375. The passage found inparagraph 5 is relevant, which is as follows:-''Para 5. Learned counsel appearing…
- Para 1515. 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 passagefound in paragraph 8 which reads as follows:- ''Para 8. Remaining absent for a…
- Para 1717. The Supreme Court in Gujarat Electricity Board and anotherv. Atmaram Sungomal Poshani [1989 (2) SCC 602] held that no employeeof a Public Undertaking has a right to be absent from duty withoutsanction of leave merely on account of pendency of his representationwith the employer.…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.2.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.7906 of 1998V.Thangaraj... Petitioner-vs-1.The Vice Chancellor, Tamil Nadu Agricultural University, Coimbatore-641 003.
The Registrar, Tamil Nadu Agricultural University, Coimbatore-641 003.
The Chairman, Enquiry Committee, Director (Planning & Monitority)Tamil Nadu Agricultural University, Coimbatore-641 003... Respondents PRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorarified mandamus callingfor the records on the file of the second respondent culminating inNo.L2/5190/90 dated 21.4.1998 and quash the same and direct respondents1 and 2 herein to restore the petitioner for the post of Superintendent. For petitioner: Mr.M.RaviFor respondents : Mr.P.Srinivas (R1) Ms.D.Geetha (R2 & R3) *****
O R D E R This writ petition is filed by the petitioner challenging theorder dated 21.4.1998 passed by the second respondent and after settingaside the same for a consequential direction to restore the petitionerin the post of Superintendent with all benefits. https://hcservices.ecourts.gov.in/hcservices/
2. By the impugned order dated 21.4.1998, the petitioner'sservices were removed by the second respondent on the basis of an orderpassed by the first respondent Vice Chancellor Tamil Nadu AgriculturalUniversity.3. Notice of motion was ordered in the writ petition on 15.6.1998and subsequently, the matter was admitted on 09.11.2001. Thepetitioner's prayer for interim relief was rejected by this court by anorder dated 26.8.2003.
On notice from this Court, a detailed counter affidavit(running into 45 pages) has been filed by the second respondent.
The first respondent University was created by the Tamil NaduAct 8 of 1971. The petitioner joined as a Fieldman during the year1960. Subsequently, he was selected by the Tamil Nadu Public ServiceCommission to the post of Junior Assistant and appointed with effectfrom 14.5.1965 in the office of the Dean, Agricultural College and Research Institute, Coimbatore. After the formation of the Universitywith effect from 01.6.1971, the centre got merged with the Tamil NaduAgricultural University and the petitioner became its employee. Thepetitioner was promoted as an Assistant on 06.8.1975. Subsequently, onpromotion he was made as Superintendent with effect from 18.7.1984. Atthe time of his removal, he was Superintendent under the Directorate of Soil and Crop Management Studies of the University at Coimbatore.
The petitioner proceeded on Unearned Leave on Private Affairsfrom 01.1.1984 to 30.9.1984. Then he applied for Extraordinary Leave onloss 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 01.10.1985to 31.3.1986. Thereafter from 01.4.1987 to 31.3.1988. During theaforesaid period, he was asked to report for duty and his leave wasrefused. In spite of the same, he did not report for duty andcontinuously applied for leave for various spells. Later on, the University found that the letters sent in his name were received by oneP.Sivagami. Hence, they requested the Superintendent of Police, Tiruchirappalli to find out the whereabouts of the petitioner. It wasfound that he was working in Saudi Arabia by using a false passport andgiving false details.
Therefore, a charge memo was framed along with a questionnairedated 13.11.1987. He filled up the questionnaire and it was sentwithout signing the same. He did not give any satisfactory reply forhis long absence without any leave application. During the policeenquiry, it was found that his wife's name was Sivagami. She had toldthe police that the petitioner had taken their daughter to Bombay fortreatment for her mental illness. But, however, on enquiry by thepolice, it was revealed that he had gone to the Middle-East and wasworking there. For the charge memo dated 28.1.1998, the petitioner sent https://hcservices.ecourts.gov.in/hcservices/ a reply dated 16.3.1998. He had stated that since he had worked formore than 28 years, he may be allowed to rejoin duty. He also pointedout that some other teaching staff had also gone abroad and were letoff without punishment.
An enquiry was ordered by an Enquiry Committee and thepetitioner was directed to appear before the Enquiry Committee. Theenquiry was held on 16.3.1998. The Chairman of the Enquiry Committeesubmitted a report on 18.3.1998 holding the petitioner guilty of allthe charges. A copy of the enquiry report was furnished to thepetitioner. After getting his explanation, a show-cause notice wasissued to him asking his reply as to why he should not be removed fromservice. The order of the first respondent Vice Chancellor wascommunicated by the second respondent Registrar. The petitioner insteadof answering the show-cause notice sought for further time. However, as his request was not bona fide, the punishment of removal fromservice was passed against the petitioner.
The counter affidavit fully sets out the circumstances underwhich the petitioner was removed from service. It was submitted byMr.M.Ravi, learned counsel for the petitioner that the order passed bythe Registrar communicating the decision of the Vice Chancellor of the University was illegal and since the competent authority had not passedthe impugned order, it is liable to be set aside. According to thelearned counsel, removal from service is a major penalty and thereforethe Vice Chancellor ought not have passed the impugned order. 10. However, Appendix X of the statutes framed under the TamilNadu Agricultural University Act clearly shows that in respect of non-teaching staff working in the University, removal from service can bedone by the Vice Chancellor. In the present case, the order has beenpassed by the Vice Chancellor and the Registrar had only communicatedthe said order of the Vice Chancellor. Therefore, there is no lack ofjurisdiction as contended by the learned counsel.
The further argument was that since the petitioner in thenormal course would have reached the age of superannuation on30.6.1998, his removal from service just two months prior to his dateof superannuation was not proper especially when there were only 70days for his retirement. He also submitted that he got a family andthe punishment of removal would deprive him of his entire terminalbenefits.
Learned counsel placed reliance upon the judgment of the Supreme Court in Yoginath D.Bagde -vs- State of Maharashtra and anotherreported in AIR 1999 SC 3734. It is for the purpose of showing that incase the disciplinary authority disagreed with the findings of the Enquiry Officer, before his disagreement he should have been given ashow-cause notice. In the present case, such a contingency did not https://hcservices.ecourts.gov.in/hcservices/ take place.
Mr.P.Srinivas, learned counsel for the first respondentUniversity and Ms.D.Geetha, learned counsel for respondents 2 and 3submitted that the petitioner was not prejudiced by the conduct ofenquiry and he was given a long rope. Inasmuch as the petitioner hadremained absent without any justification for long number of years, heis not entitled to be heard either on the manner of enquiry or on theproportionality of the punishment.
In this context, the learned counsel placed relied upon thejudgment of the Supreme Court in Government of A.P. And others -vs-Mohd. Taher Ali reported in AIR 2008 SC 375. The passage found inparagraph 5 is relevant, which is as follows:-''Para 5. Learned counsel appearing on behalf of therespondent submitted that in fact, the disciplinary authoritywhile passing the order has taken into consideration theearlier absence of the respondent from the duty. He submittedthat this could not have been taken into consideration as therespondent was not aware about these incidents and those werenot the part of the charges levelled against him. In supportof his submission, learned counsel for the respondent hasinvited our attention to the judgment of this Court titledState of Mysore -vs- V.K.Manche Gowda reported in 1964 (4)SCR 540, but in the present case we are satisfied that infact the respondent deliberately absented himself from dutyand did not offer any explanation for his absence fromelection duty. It is not the respondent's first absence. Healso absented himself from duty on earlier occasions also. Inour opinion there can be no hard and fast rule that merelybecause the earlier misconduct has not been mentioned in thechargesheet it cannot be taken into consideration by thepunishing authority. Consideration of the earlier misconductis often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondentis a habitual absentee then there is no reason to ignore thisfact at the time of imposing penalty. Moreover, even ignoringthe earlier absence, in our opinion, the absence of 21 daysby a member of a disciplined force is sufficient to justifyhis compulsory retirement. "
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 passagefound 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 https://hcservices.ecourts.gov.in/hcservices/ a fleet of buses. It is a statutory organisation. It has toprovide public utility services. For running the buses, theservice of the conductor is imperative. No employer runninga fleet of buses can allow an employee to remain absent fora long time. The respondent had been given opportunities toresume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a periodof more than three years, his leave records were seen and itwas found that he remained unauthorisedly absent on severaloccasions. In this view of the matter, it cannot be saidthat the misconduct committed by the respondent herein hasto be treated lightly. "
In the light of the rival contentions, it is necessary torefer to certain decisions of the Supreme Court which will have abearing on the present case.
The Supreme Court in Gujarat Electricity Board and anotherv. Atmaram Sungomal Poshani [1989 (2) SCC 602] held that no employeeof a Public Undertaking has a right to be absent from duty withoutsanction of leave merely on account of pendency of his representationwith the employer. Though it dealt with the case of an employee in nothaving obeyed an order of transfer, it will have relevance as in thepresent case, the petitioner had contended that his representation waspending with the University and he should have been given furtheropportunity to join duty.
In the case relating to Aligarh Muslim University and othersv. Mansoor Ali Khan [2000 (7) SCC 529], the Supreme Court dealt with acase of absence of University employee obtaining EOL to join in anotherUniversity in a foreign country. In that case, the Supreme Court inparagraphs 24 to 35 observed as follows:-Para 24:"The principle that in addition to breach ofnatural justice, prejudice must also be proved has beendeveloped in several cases. In K.L. Tripathi v. StateBank of India, Sabyasachi Mukharji, J. (as he then was)also laid down the principle that not mere violation ofnatural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade’s 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 towhen the principles of natural justice are toapply, nor as to their scope and extent. ... Theremust also have been some real prejudice to thecomplainant; there is no such thing as a merely https://hcservices.ecourts.gov.in/hcservices/ technical infringement of natural justice.
Therequirements of natural justice must depend on thefacts and circumstances of the case, the nature ofthe inquiry, the rules under which the tribunal isacting, the subject-matter to be dealt with, and soforth.” Since then, this Court has consistently applied theprinciple of prejudice in several cases. The aboveruling and various other rulings taking the same viewhave 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 sameprinciple has been reiterated again in Rajendra Singh v.State of M.P.Para 25:The “useless formality” theory, it must benoted, is an exception. Apart from the class of cases of“admitted or indisputable facts leading only to oneconclusion” referred to above, there has beenconsiderable debate on the application of that theory inother cases. The divergent views expressed in regard tothis theory have been elaborately considered by this Court in M.C. Mehta referred to above.
This Courtsurveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, LordBingham, Megarry, J. and Straughton, L.J. etc. invarious cases and also views expressed by leadingwriters like Profs. Garner, Craig, de Smith, Wade, D.H.Clark etc. Some of them have said that orders passed inviolation must always be quashed for otherwise the courtwill be prejudging the issue. Some others have said thatthere is no such absolute rule and prejudice must beshown. Yet, some others have applied via media rules. Wedo not think it necessary in this case to go deeper intothese issues. In the ultimate analysis, it may depend onthe facts of a particular case. Para 26:It will be sufficient, for the purpose of thecase of Mr Mansoor Ali Khan to show that his case willfall within the exceptions stated by Chinnappa Reddy, J.in S.L. Kapoor v. Jagmohan, namely, that on the admittedor indisputable facts, only one view is possible.
Inthat event no prejudice can be said to have been causedto Mr Mansoor Ali Khan though notice has not beenissued. https://hcservices.ecourts.gov.in/hcservices/ Para 27:Our reasons for saying that the case of MrMansoor Ali Khan falls within the exception can bestated as follows: Admittedly, leave was sanctioned only for 2 yearsfrom 18-4-1979. When before the expiry of the period, MrMansoor Ali Khan applied on 18-4-1981 for extension ofleave by 3 more years, the University wrote to him on17-9-1981/23-9-1981 granting extension only for one yearfrom 18-4-1981 and also stated that he was required toresume duties by 18-4-1982. It did not stop there. Itfurther forewarned Mr Khan as follows: “Please note that no further extension in theperiod of your leave will be possible and you areadvised to make preparation for resuming dutypositively by 18-4-1982.” In other words, he was put on advance notice that itwould not be possible to give any further extension i.e.beyond one year on the ground of continuance in the jobat Libya and he was to resume duty by 18-4-1982.
Infact, thereafter some special consideration was stillshown in his favour by way of granting him joining timeup to 1-7-1982. It was clearly said that otherwise hewould be deemed to have vacated the post. If he had, inspite of this warning, gone ahead by accepting a furthercontract in Libya, it was, in our view, his ownunilateral act in the teeth of the advance warninggiven. That conduct, the learned Single Judge thoughtand in our view rightly to be sufficient to deny reliefunder Article 226. Para 28:We may state that the University has not actedunreasonably in informing him in advance — whilegranting one year extension, in addition to the initialabsence of 2 years — that no further extension will begiven. We have noticed that when the extension is soughtfor three years, the Department has given him extensiononly for one year as he had already availed 2 years’extraordinary leave by that time.
It has to be noticedthat when employees go on foreign assignments which aresecured by them at their own instance, in case they donot come back within the original period stipulated orbefore the expiration of the extended period, theemployer in the parent country would be put to seriousinconvenience and will find it difficult to maketemporary alternative appointments to fill up the postduring the period of absence of those who have gone https://hcservices.ecourts.gov.in/hcservices/ abroad. However, when rules permit and provide for anemployee to go abroad discretion must be exercisedreasonably while refusing extension. In this case, giving of further extension only for one year out of thefurther period of three years sought for is notunreasonable. In such a situation, if the employee hasentangled himself into further commitments abroad, hehas to blame himself. Para 29:On the above facts, the absence of a notice toshow cause does not make any difference for the employeehas already been told that if his further overstay isfor continuing in the job in Libya, it is bound to berefused.
Para 30:Should notice have been given before he isdeemed to have vacated office under Rule 5(8)(i)? Was noprejudice caused?Para 31:Now the question of deeming the vacation ofthe post is mentioned both in Rule 10 which deals with 5years’ absence and also by Rule 5(8)(i) where absence isfor a period less than 5 years. In the latter case, itis true, notice is normally contemplated. We have saidthat Rule 10 has no application to the case before ussince the absence of Mr Mansoor Ali Khan’s absence isless than 5 years. Now even under Rule 5(8)(i), there isa deeming provision of vacation of the post where theexplanation offered by the employee, consequent upon anotice, is found not satisfactory. Para 32:Let us then take two situations. An employeewho is permitted to be abroad for two years on a jobseeks extension for 3 years but is granted extensiononly for 1 year and is also told in advance that nofurther extension will be given and if he does not joinafter the 1-year extended period, he will be deemed tohave vacated office.
Let us assume that he does not joinas advised and, in a given case, notice is given callingfor his explanation. He replies stating that he hadentered into a further commitment for 2 years and wantsone more year of extension. The University refusesextension treating the explanation as unsatisfactory andunder Rule 5(8)(i) deems that he has vacated his job. Nofault can be found in the procedure. Let us take another https://hcservices.ecourts.gov.in/hcservices/ situation where the officer does not join in identicalcircumstances but is not given notice under Rule 5(8)(i). He has no other explanation — from what is revealedin his writ petition filed later — other than hisfurther commitment abroad for 2 more years. In thelatter case, it is, in our opinion clear that even if nonotice is given, the position would not have beendifferent because that particular explanation would notbe treated as satisfactory had already been intimated tohim in advance.
Therefore, the absence of a notice inthe latter situation must be treated as having made nodifference. That is precisely the position in the caseof Shri Mansoor Ali Khan. Para 33:Another important aspect of the matter is thatno new reason has been projected in the writ petition ofMr Khan for his seeking further extension earlier whilein Libya. The only reason stated is that he had obtainedfurther extension in a job. It is not a case where thereis a plea in the court that there were different groundsor reasons which he could have put in his explanation, if called for, such as ill health etc. Indeed, if thereasons could have been somewhat different, as mayperhaps be disclosed or proved in a subsequent writpetition — such as his own failing health, one canunderstand. But so far as leave for purposes of jobcontinuance in Libya is concerned, he has been fully puton advance notice that no further extension will begiven.
It must be held that no prejudice has been causedeven though no notice is given under Rule 5(8)(i).Para 34:We may add a word of caution. Care must betaken, wherever the court is justifying a denial ofnatural justice, that its decision is not described as a“preconceived view” or one in substitution of the viewof the authority who would have considered theexplanation. That is why we have taken pains to examinein depth whether the case fits into the exception. Para 35:Thus, in our view, in the above peculiarcircumstances, the only conclusion that can be drawn isthat even if Mr Mansoor Ali Khan had been given noticeand he had mentioned this fact of job continuance in Libya as a reason, that would not have made anydifference and would not have been treated as asatisfactory explanation under Rule 5(8)(i). Thus, on https://hcservices.ecourts.gov.in/hcservices/ the admitted or undisputed facts, only one view waspossible. The case would fall within the exception notedin S.L. Kapoor case. We, therefore, hold that noprejudice has been caused to the officer for want ofnotice under Rule 5(8)(i). We hold against Mr MansoorAli Khan under Point 5."
The Supreme Court, however, in the case of V.C., BanarasHindu University and others v. Shrikant [2006 (11) SCC 42] dealt withthe case of a University Lecturer going for abroad and applying forextension of leave. In paragraphs 41, 57 and 60 of the judgment, itwas observed as follows:-Para 41:"Although, laying down a provision providingfor deemed abandonment from service may be permissiblein law, it is not disputed that an action takenthereunder must be fair and reasonable so as to satisfythe requirements of Article 14 of the Constitution of India. If the action taken by the authority is found tobe illogical in nature and, therefore, violative of Article 14 of the Constitution, the same cannot besustained. Statutory authority may pass an order whichmay otherwise be bona fide, but the same cannot beexercised in an unfair or unreasonable manner. Therespondent has shown before us that his leave had beensanctioned 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 theleave. Even the matter relating to grant of permissionfor his going abroad had been recommended by the Director. The respondent states, and it had not beencontroverted, that some other doctor was given thecharge of his duties. We have indicated sufficientlythat the Vice-Chancellor posed unto himself a wrongquestion. A wrong question leads to a wrong answer. Whenthe statutory authority exercises its statutory powerseither in ignorance of the procedure prescribed in lawor while deciding the matter takes into considerationirrelevant or extraneous matters not germane therefor, he misdirects himself in law. In such an event, an orderof the statutory authority must he held to be vitiatedin law. It suffers from an error of law. "Para 57:"The matter may, however, be different in acase where despite having been given an opportunity ofhearing, explanation regarding his unauthorised absenceis not forthcoming or despite giving him an opportunityto join his duty, he fails to do so, as was the case in https://hcservices.ecourts.gov.in/hcservices/ Punjab & Sind Bank v.
Sakattar Singh. "Para 60:"A provision relating to abandonment ofservice came up for consideration yet again in VivekaNand Sethi v. Chairman, J&K Bank Ltd. before a DivisionBench of this Court. This Court opined that although ina case of that nature, principles of natural justicewere required to be complied with, a full-fledgeddepartmental enquiry may not be necessary, holding: (SCCp. 345, para 20)
A limited enquiry as to whether the employeeconcerned had sufficient explanation for notreporting to duties after the period of leave hadexpired or failure on his part on being asked so todo, in our considered view, amounts to sufficientcompliance with the requirements of the principlesof natural justice.
Therefore, the argument based upon the principles of naturaljustice has no application in the present case as the petitioner wassufficiently informed that his refusal to join the post on thestipulated date will render him as having left the services of the University.
In the light of the above legal principles and the ruleposition, the writ petition will stand dismissed. However, therewill be no order as to costs. Sd/Asst. Registrar/true copy/Sub Asst. Registrarjs To1.The Vice Chancellor, Tamil Nadu Agricultural University, Coimbatore-641 003. https://hcservices.ecourts.gov.in/hcservices/
2. The Registrar, Tamil Nadu Agricultural University, Coimbatore-641 003.3.The Chairman, Enquiry Committee, Tamil Nadu Agricultural University, Coimbatore-641 003. +1cc to Mr.M.Ravi, Advocate Sr 4831KJI(CO)km/9/2.W.P.No.7906 of 1998
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India — arts. 14, 226; TamilNadu Agricultural University Act.
Which court decided this case, and when?
Madras High Court, on 02 Feb 2009.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.