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Judgment
J.B. Pardiwala, J.—This petition has been preferred under Article 226/227 of the Constitution praying to quash and set aside order No. GA/PS/1282/437-A dated 19.01.2001 imposing major penalty of compulsory retirement upon the Petitioner with full pension and 2/3rd gratuity and treating the period of unauthorized absence from 11.06.1990 as ''Dies non''.
Facts relevant for the purpose of deciding this petition can be summarized as under:
2.1 The Petitioner was serving with Kandla Port Trust as a Senior Clerk. It appears that after putting in service of about twenty six years, he preferred an application for voluntary retirement from service on 31.07.1989. It also appears that his request for voluntary retirement was also accepted by Respondent No. 2 vide memorandum dated 10.05.1989, and thereafter, was revoked vide order dated 17.07.1989. Record reveals that a charge-sheet came to be filed against the Petitioner for certain acts of misconduct and major penalty of compulsory retirement was imposed. The sum and substance of the allegations levelled in the charge-sheet are to the effect that the Petitioner, while working in the Estate Section of Kandla Port Trust, acquired certain immovable properties in his own name and in the name of his wife by way of purchase and/or by means of instrument of a general power of attorney in his name during the period from July 1981 to May 1989. It appears that this particular charge levelled against the Petitioner is on the basis of certain regulations i.e. Kandla Port Employees (Conduct) Regulations, 1964. Regulation 15 of Kandla Port Employees (Conduct) Regulations, 1964 reads as under:
Movable, immovable and valuable property:
No employee shall, except with the previous knowledge of the Board, acquire or dispose of any immovable property lease, mortgage, purchase, sale gift or otherwise, either in his own name or in the name of any member of his family:
Provided that any such transaction conducted otherwise than through a regular or reputed dealer shall require the previous sanction of the prescribed authority.
2.2 Record reveals that from the year 1990, since the time when Petitioner tendered request for voluntary retirement, he remained absent from service. It appears that the withdrawal of voluntary retirement was made a subject-matter of challenge before the civil court by filing a civil suit. However, all the proceedings ultimately came to an end in the year 1998 when Civil Revision Application No. 318 of 1992, preferred by the Petitioner against an interim order passed by the civil court, came to be rejected by this Court. It appears that upon rejection of Civil Revision Application No. 318 of 1992, the Petitioner ultimately thought fit to withdraw the civil suit.
2.3 It also appears from the record that second charge-sheet was issued against the Petitioner on the ground that while functioning as Senior Clerk, he remained absent without sanctioned leave or permission from 11.06.1990; thus thereby contravening Sub-regulation 8 of Regulation 3 of Kandla Port Employees (Conduct) Regulations, 1964. Regulation 3 Clause 8 of Kandla Port Employees (Conduct) Regulations, 1964 reads as under:
3(8): No employee shall, (ii) Be absent without sanctioned leave or permission.
2.4 Record revels that both the inquires proceeded against the Petitioner-delinquent. So far as first inquiry initiated for breach of Regulation 12 of the Kandla Port Employees (Conduct) Regulations, 1964 is concerned, the inquiry officer, vide his report dated 22.11.2000, held that the Petitioner, working as a Senior Clerk with Kandla Port Trust, has carried out the trade/business of purchase and sale of immovable property which is in contravention of Regulations 12 and 15 of the Kandla Port Employees (Conduct) Regulations, 1964, and thereby failed to maintain absolute integrity and devotion to duty in breach of Regulation 3 of Kandla Port Employees (Conduct) Regulations, 1964 and the charges approved against the Petitioner.
2.5 So far as second inquiry regarding unauthorized absence is concerned, the inquiry officer came to the conclusion that the Petitioner-delinquent remained absent from duty unauthorizedly from 11.06.1990 without permission and thereby has contravened Sub-regulation 8 of Regulation 3 of the Kandla Port Employees (Conduct) Regulations, 1964.
2.6 Taking into consideration both the reports of the inquiry officers, the disciplinary authority of Kandla Port Trust, vide order dated 19.01.2001, in exercise of the power conferred under Regulation 11 of the Kandla Port Employees (Classification, Control and Appeal) Regulations, 1964, imposed upon the Petitioner, the major penalty of compulsory retirement from service as provided under Regulation 10, Clause-V of Kandla Port Employees (Classification, Control and Appeal) Regulations, 1964, with full pension and 2/3rd gratuity. In the said order, the disciplinary authority has also observed that the period of unauthorized absence from 11.06.1990 till the date of the order shall, however, be treated as ''Dies non'' and shall not be counted for any purpose whatsoever.
2.7 Record also reveals that aggrieved by the said order of the disciplinary authority imposing penalty of compulsory retirement, an appeal was preferred before the appellate authority which came to be dismissed vide order dated 23/25.06.2001. It is at this stage that the Petitioner approached this Court by way of this petition challenging the orders passed by the authorities of Kandla Port Trust imposing penalty of compulsory retirement.
I have heard learned advocate, Mr. D.R. Dave, appearing for the Petitioner, and learned Dhaval D. Vyas, appearing for the Kandla Port Trust.
Learned Counsel, Mr. Dave, appearing for the Petitioner has put forward the following contentions:
(I) He would submit that the order passed by the authority imposing penalty of compulsory retirement is illegal, arbitrary and contrary to the Regulations, 1964;
(ii) Relying on Regulation 12 of the Kandla Port Employees (Conduct) Regulations, 1964, he submitted that the employee shall not acquire or dispose of any immovable property without prior sanction of the prescribed authority. He would submit that in the present case, there is evidence to suggest that the authorities were within the knowledge of such transactions, and if the authorities were within the knowledge of such transaction, then it cannot be said that there is breach of Regulation 15 of the Kandla Port Employees (Conduct) Regulations, 1964. He has relied upon the language implied in the said regulation which reads that "No employee shall, except with previous sanction of the Board". He submitted that since the authority was within the knowledge and did not object at any point of time, it cannot be said that there is breach of Regulation 15.
(iii) He would submit that properties were acquired directly or through the wife of the Petitioner by way of general power of attorney. It is a valid document as per the Power of Attorney Act.
(iv) He would also submit that the Petitioner as well as his wife were working with the Respondent as Class-III officials and were drawing sizeable salary, and as such, no law prohibits them from investing the surpluses in immovable properties.
(V) He also submitted that Clause-I of Regulation 3 of Kandla Port Employees (Conduct) Regulations, 1964, provides that the Regulations of 1964 shall apply to all persons appointed to posts in connection with affairs of the Kandla Port Trust provided that anything in Sub-Regulations 2 and 3 of Regulation 15 shall apply to an employee drawing pay not exceeding Rs. 500/- per mensen and holding a Class III and Class IV posts.
(VI) He would submit that even the finding, as regards unauthorized absence from service, is illegal and not tenable as he had already tendered application for voluntary retirement, which was accepted but subsequently withdrawn with oblique purpose.
(VII) He would submit that, thereafter, he was forced to challenge the said action of the Respondent by filing a Civil Suit in a Civil Court. He would submit that in the year 1994, he made efforts to resume on his post, and requested the authorities to allow him to resume service but the Respondents did not permit him to resume his service and, therefore, it cannot be said that he remained unauthorizedly absent till the time the order of penalty was passed.
(VIII) He submitted that as on today, the Petitioner is no more alive. He passed away in the year 2009. Petitioner''s wife, as a legal heir, is on record. He submitted that the order of compulsory retirement passed against the Petitioner deserves to be quashed.
Per contra, learned advocate, Mr. Dhaval Vyas put forward following contentions:
(I) He would submit that the findings arrived at by the authorities in a domestic inquiry cannot be challenged and proceed for a writ of certiorari on the ground that the relevant material evidence adduced before the authorities was insufficient or inadequate to sustain the findings with the Petitioner-delinquent is not guilty of breach of Kandla Port Employees (Conduct) Rules, 1964. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said findings are within exclusive jurisdiction of the competent authority and the said points cannot be agitated before a writ court.
(ii) He would submit that there is no jurisdictional error in the present case which warrants interference by this Court to upset the conclusions, howsoever erroneous those may be, unless such conclusions are so perverse and requires interference to come to a finding that, no court could ever have reached them. Lastly he submitted that this Court may not re-appreciate the evidence on question of fact.
I have given my anxious thoughts to the contentions raised before me and I have also gone through materials on record. At the outset, it needs to be mentioned that this Court, in cases of departmental inquiries and the findings recorded therein, does not exercise the powers of appellate court/authority. The jurisdiction of this Court under Article 226/227 is very limited, for instance whether it is found that the domestic inquiry is vitiated because of non-observance of principles of natural justice. Only if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ court. There is catena of Judgments of the Supreme Court which had settled the law on these topics and it is not necessary to refer to all these decisions. Suffice it to refer few decisions of Supreme Court on this topic viz. State of Andhra Pradesh Vs. Sree Rama Rao, and State of Andhra Pradesh and Ors. v. Chitra Venkata Rao reported in AIR 1975 SC 2151.
However, I would like to clarify few aspects. Relying on Regulation 3 Clause-I of the Kandla Port Employees (Conduct) Rules, 1964, learned advocate for the Petitioner submitted that Sub-regulations 2 and 3 of Regulation 15, on the basis of which, the Petitioner has been held guilty in the domestic inquiry shall not apply to an employee drawing a pay not exceeding Rs. 500/- per mensen and holding a Class-II or Class-IV post. During the course of hearing, it was clarified that till the last date, Petitioner was holding Class-III post but, during the course of transactions of sale and purchase of properties, he was drawing a salary of Rs. 2,000/-. This has been fairly admitted by learned Counsel for the Petitioner-delinquent. Therefore, the contention as regards non applicability of Sub-regulations 2 and 3 of Regulation 15 does not apply in the present case.
So far as being absent without sanctioned leave or permission is concerned, it is also not disputed. It is not in dispute that from 1990 onwards till the time, the order of compulsory retirement was passed, the Petitioner did not resume his service and remained absent. Of course, he has tried to justify by submitting that he had already tendered his application for voluntary retirement which was also accepted but, subsequently withdrawn and was thereafter made a subject-matter of civil suit which also came to be withdrawn in the year 1998, when civil revision application referred by the Petitioner against the interim order passed by civil court also came to be rejected.
However, I find that there is one part of the order, which, in my opinion is not in accordance with law, and to that extent, I am inclined to grant relief to the Petitioner. It is evident on plain reading of the order passed by the disciplinary authority that while imposing major penalty of compulsory retirement from service, as provided under Regulation 10 Clause-V of Kandla Port Employees (Classification, Control and Appeal) Regulations, 1964, the competent authority ordered for full pension and 2/3rd gratuity to be paid to the Petitioner. However, the disciplinary authority further observed that the period of unauthorized absence from 11.06.1990 till the date of order shall, however, be treated as ''Dies non'' and shall not be counted for any purpose whatsoever. For the sake of convenience, I may reproduce operative part of the impugned order which reads as under:
Now, therefore, having accepted the findings of the Enquiry Officer, in both the aforesaid departmental proceedings, the undersigned, in exercise of the power conferred under Regulation 11 of the Kandla Port Employees (Classification, Control and Appeal) Regulations, 1964 imposes upon the said Shri V.P. Soni, Sr. Clerk the major penalty of compulsory retirement from service, as provided under Regulation 10(V) of the Kandla Port Employees (Classification, Control & Appeal) Regulations, 1964, with full pension an two-third gratuity. The period of unauthorized absence from 11.06.1990 till the date of this order shall, however, be treated as ''Dies non'' and shall not be counted for any purpose, whatsoever.
The question, which falls for my consideration, is that while imposing penalty of compulsory retirement with full pension and 2/3rd gratuity, whether the disciplinary authority could have passed an order that the period of unauthorized absence from 11.06.1990 till the date of the punishment order be treated as ''Dies non'' and shall not be counted for any purpose whatsoever.
I am of the view that even while holding or accepting unauthorized absence from 11.06.1990 till the date of the order of penalty, there was no cessation of service, meaning to say the master-servant relationship or the employee-employer relationship, did not get snapped. During the interregnum period, no adverse action was also taken against the delinquent except inquiry and, ultimately in 2001, on conclusion of the inquiry, the order of penalty of compulsory retirement was ordered to be passed. I am conscious of the fact that the Supreme Court in A.P.S.R.T.C. and Another Vs. S. Narsagoud, has observed that the employee, held guilty of unauthorized absence from duty, cannot claim the benefit of increments notionally earned during the period of unauthorized absence in absence of the specific direction in that regard. Further Supreme Court has also observed that the period of unauthorized absence from duty, treated as misconduct and held liable to be punished by way of penalty, cannot be placed on a footing better than the period of extraordinary leave or leave without pay or a period of overstayal. However, I cannot ignore the fact that in the present case, much before the inquiry came to be initiated, the Petitioner had already applied for voluntary retirement and Kandla Port Trust had already granted the same vide order dated 10.05.1989, and thereafter, it was withdrawn on 17.07.1989. This action on the part of the Respondent compelled the Petitioner to prefer a civil suit seeking appropriate declaration in this regard and he also prayed for certain interim orders before the Civil Court which were granted, and ultimately, the matter reached the High Court, and High Court, in Civil Revision Application No. 318 of 1982, passed an order dated 24.03.1992 that, it will be open for the Petitioner to remain on leave pending final consideration of Civil Revision Application No. 318 of 1992. Unfortunately, this application was taken up for final hearing only in 1998, and in 1998, High Court took the view that though Civil Court, in an interim application, directed the Respondent i.e. Kandla Port Trust to permit the Petitioner to resume his duties, however, in appeal preferred by Kandla Port Trust, the appellate Court held that withdrawal of permission of premature retirement prior to the effective date of retirement can be said to be illegal or improper and this finding, which was challenged in Civil Revision Application No. 318 of 1992, was not disturbed on the premise that instead of deciding Civil Revision Application on merits, the suit cannot be ordered to be disposed of expeditiously and in this background, civil revision application was disposed of. That means till 1998, the issue, as to whether the action of the Respondent in withdrawing voluntary retirement was in accordance with law or not, was very much at large and in spite of request of the Petitioner herein to permit him to resume duties, it appears that the Trust did not allow him to work. I am of the view that this principle of ''Dies non'', which has been made applicable, would not apply. ''Dies non'' has been explained by Law Lexicon, 4th Edition 2010 as under:
Dies non. (Lat.) A day which is regarded by the law as one on which no judicial act can be performed, or legal diligence used. (Trayner)
(Shortened form of Dies non juridicius). A day not juridical, a day exempt from Court proceedings, such as a holiday or a Sunday.
A day on which the Courts do not ordinarily sit or carry on business; a day on which general business may not lawfully be transacted.
A day on which a law-Court is not held.
A day that is not counted for some purpose. For example, Saturday and Sunday are not counted as days of the working week.(Trade Finance)
The period for which Railways has given continuity of service to its employee in compliance of order made by Central Administrative Tribunal would not be treated as ''dies non''. Devi Charan Chaturvedi V. Union of India, 2000 (7) SLT 758. (Service Law)
An abbreviation of the phrase "dies non juridicus", non-judicial days-days during which the Courts do not transact any business-as Sunday or the legal holidays. (Havens V. Stiles, 56 LRA 736). It is frequently said that Sunday is "die non juridicus", but this means only that process cannot ordinarily issue or be executed or returned, and Courts do not usually sit, on that day. It does not mean that no judicial action be had on that day. On the contrary, it is laid down in books of authority that warrants for treason, felony and breach of the peace may be issued and executed on that day. (State v. Ricketts, 74 N.C. 187, 193)
When a day can be marked as dies non and its effect.-Absence of officials from duty without proper permission or when on duty in office, they have left the office without proper permission or while in the office, they refused to perform the duties assigned to them in subversive of discipline. In cases of such absence from work, the leave sanctioning authority may order that the days on which work is not performed be treated as dies non, i.e., they will neither count as service nor be construed as break in service. This will be without prejudice to any other action that the Competent Authorities might take against the persons resorting to such practices.
In this view of the matter, the part of the impugned order passed by the disciplinary authority, treating the period of unauthorized absence from 11.06.1990 till the date of the order of penalty as ''Dies non'' and not to be counted for any purpose whatsoever, appears to be without jurisdiction. While upholding the order passed by the disciplinary authority and confirmed by the appellate authority holding the Petitioner-delinquent guilty of Conduct Regulations,1964, I clarify that the since the disciplinary authority passed an order of full pension, the same ought to have been granted on the basis of continues service for interim period and the pension ought to have been fixed on the basis of last pay drawn at the time of imposition of penalty.
Now so far as withholding of 1/3rd of the gratuity is concerned also appears to be not in accordance with law. Section 4 Clause-VI of the Payment of Gratuity Act, 1972 reads as under:
Payment of gratuity:
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,-
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
(6) Notwithstanding anything contained in Sub-section (1),-
(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee [may be wholly or partially forfeited]-
(I) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
As held by the Supreme Court in case of Jaswant Singh Gill v. Bharat Coking Coal Ltd. reported in 2007 II LLJ 206, provision of the Payment of Gratuity Act, 1972 would prevail over rules and that unless and until loss or damage has been quantified, gratuity amount is not liable to be forfeited and that amount of gratuity is liable to be forfeited only to the extent of damage or loss caused. In the present case, it is not the case of the Respondent that there has been any damage or loss caused to the Port Trust by any of the acts of the Petitioner-delinquent. In this view of the matter, even withholding of 1/3rd of gratuity is not in accordance with the provisions of the Payment of Gratuity Act, 1972.
The final conclusion can be summarized as under:
(i) The order of disciplinary authority imposing penalty of compulsory retirement and upheld by the appellate authority i.e. Chairman of the Kandla Port Trust, is hereby confirmed.
(ii) The order passed by the disciplinary authority to the extent of treating the unauthorized absence, from 11.06.1990 till the date of order of penalty, as ''Dies non'' is hereby quashed and set aside. The Respondents are directed to re-fix the amount of pension on the basis of continues service for interim period and on the basis of last pay drawn at the time of imposition of penalty. It is clarified that this Court is not passing any orders of arrears so far as the difference amount is concerned from the date of passing of the penalty order in 2001.
(iii) The order of the disciplinary authority withholding of 1/3rd amount of gratuity is also quashed and set aside. The 1/3rd amount, which has been withhold towards gratuity, shall now be worked out and the difference be paid to the Petitioner with interest at the rate of 12% per annum.
(iv) In the above view of the matter, the petition partly succeeds. Rule is made absolute to the aforesaid extent. The Respondent is hereby directed to comply with the above referred directions within a period of four months from the date of receipt of the order taking into consideration the fact that the Petitioner is now no more alive and the benefit has go to the widow, who is on record.