S.H. Pande vs Municipal Corporation of Greater Bombay and another

K. Madhava Reddy, C.J.—The appellant-petitioner, an employee of the Municipal Corporation for Greater Bombay, filed the writ petition initially challenging the order dated 8th May 1972 transferring him from the post of Meter Supervisor. H Ward, to act as Head Clerk on the establishment of F (South) Ward. Conservancy Branch. The appellant failed to join as acting Head Clerk and absented himself from duty. Having filed the writ petition he continued to remain absent. While the writ petition was pending, more than five years elapsed and during all these years the appellant remained absent. The Municipal Corporation passed an order dated 9th November 1977 informing the appellant on completion of five years'' continuous absence from duty that he ceased to be in service from 8th May 1977. This order of the (Municipal Corporation was made having regard to Regulation 19 of the Municipal Service Regulations (hereinafter referred to as the "Regulations") framed u/s 81 (1), (b), (c). (d) and (e) of the Bombay Municipal Corporation Act, 1888 (hereinafter referred to as the "Act") which reads as under :

Lien on post lost after 5 years'' absence :

After five years'' continuous absence from duty, whether with or without leave, a Municipal servant ceases to be a Municipal employee.

Thereupon the appellant, by way of amendment to the writ petition, called in question the legality of the order of 9th November 1977 as well as the validity of Regulation 19 under which that order was passed. ,

The learned Single Judge held that the grievance of the appellant against his administrative transfer was wholly misconceived and that it was not a proper case to strike down the order dated 9th November 1977 while exercising jurisdiction under Article 226 of the Constitution of India.

We find ourselves in agreement with the learned Single Judge that the order of transfer was a purely administrative order and the appellant had no valid reason for not joining the post of Head Clerk. The few facts necessary to appreciate the grounds of attack on the order dated 9th November 1977 declaring that the appellant ceased to be in service may be noticed.

The appellant joined service of the Municipal Corporation of Greater Bombay on 2nd July 1947 as a clerk. He was promoted to officiate as Head Clerk for a period of fifteen days on 17th May 1960. Subsequently, he officiated as Head Clerk for a short period. On 14th August 1964 he was promoted to officiate as Head Clerk and while so working he was selected and appointed as a Meter Supervisor by an order dated 12th September 1964 passed by the Deputy Hydraulic Engineer. On 1st April 1969 he was confirmed as Meter Supervisor by an order dated 28th May 1970 passed by the Deputy City Engineer. On 8th May 1972 the order transferring him as acting Head Clerk was passed by the City Engineer, but the appellant failed to comply with the order and absented himself. He applied for a copy of the said order on 15th June 1973 and filed the above writ petition in June 1973 questioning the order of transfer. That petition was admitted on 27th August 1973. During this period he continued to be absent. On 15th November 1973 a charge-sheet was issued by the Ward Officer against the petitioner for absenting himself without obtaining permission of the competent authority and refusing to join duty in spite of repeated orders to resume duty. On 4th November 1974 one V. K. Joshi, an Engineering Officer, commenced the enquiry. On 28th November 1974 one D. V. Mazumdar, Ward Officer (Meter), was examined as a defence witness. The appellant submitted his final reply on 24th December 1974. On 23rd March 1975 the Municipal Commissioner cancelled the enquiry already held and directed a de novo enquiry on the ground that it was vitiated by procedural errors. The appellant protested against the holding of a de novo enquiry on 21st April 1975. However, a charge-sheet was issued on 7th August 1975 by the Chief Inspector (Enquiries). The appellant asked for copies of the findings of previous enquiry officer and of the order dated 17th June 1975 passed by the Municipal Commissioner. A copy of the order dated 17th June 1975 was furnished to the appellant but not the findings of previous enquiry officer. On 10th September 1975 the appellant wrote to the enquiry officer stating that he would not participate in the enquiry as the findings of previous enquiry were not given to him. Thereupon, the enquiry officer sent copies of the depositions of the witnesses to the appellant on 11th September 1975 and called upon the appellant to submit his final defence. On 9th October 1975 the appellant submitted his reply stating that the de novo enquiry was against all principles of natural justice and that his transfer to the post of Head Clerk was illegal and mala fide. On 9th February 1976 a notice was issued to the appellant calling upon him to show cause why he should not be demoted to the post of clerk for three years for the charge of unauthorised absence. The appellant asked for time to reply to the show-cause notice. On 7th March 1976 he made a further request for supply of C. D. P. Rules. The Deputy Municipal Commissioner on 14th September 1976 declined to supply copy of the said rules as they were confidential. On 1st October 1976 the appellant reiterated that he was entitled to a copy of the said rules and on 10th January 1977 an extract of C. D. P. rules relied upon by the enquiry officer was supplied to him. The appellant by his letter dated 2nd February 1977 insisted that he should be supplied with the entire C. D.P. rules. During all this period the appellant continued to remain absent and he was so absent for more than five years. On 9th November 1977 the City Engineer issued a memo informing that the appellant having absented himself from duty from 8th May 1972 continuously for more than five years had ceased to be in municipal service from 8th May 1977 as per Regulation 19 of the Regulations. The appellant, however, did not receive this memo. On 19th June 1978 the appellant was asked by the Hydraulic Engineer to collect his final settlement dues. The appellant thereupon sought amendment of his writ petition and called in question the order dated 9th November 1977 as also the validity of Regulation 19 of the Regulations.

In the return filed by the respondents it was stated that the appellant was transferred for a temporary period as acting Head Clerk on administrative grounds. Water Meter Supervisor and a Head Clerk belong to the same cadre and enjoy the same benefits. Before the learned Single Judge, Mr. Ramaswami, appearing for the appellant "did not dispute that because of this order of transfer any prejudice was caused to the interest of the petitioner." The only grievance of the appellant was that this order of transfer had caused loss of conveyance allowance to him. Mere loss of conveyance allowance available to a person who is posted as a Water Meter Supervisor cannot be deemed to be a loss when as acting Head Clerk he is not required to undertake any journey in the discharge of his duties. The post of Water Supervisor requires moving from building to building and therefore that post carries conveyance allowance. When a person does not hold that post naturally he would not be paid that allowance. That cannot be considered to be a loss of which the appellant could make any legal grievance. We find ourselves in agreement with the finding of the learned Single Judge that the grievance of the appellant is misconceived and no relief can be granted to him in that regard.

Mr. Ramaswami and Mr. Singhvi, who later joined him in the arguments, very strongly contended that the order dated 9th November 1977 declaring that the appellant had ceased to be in service was arbitrary and void as offending article 14 of the Constitution of India. That order was made without giving an opportunity to the appellant to show cause and was therefore violative of principles of natural justice. It is pointed out that in fact on 9th February 1976 the appellant was given a notice to show cause why he should not be demoted to the post of clerk for three years for the charge of unauthorised absence and now on 9th November 1977 without completing the enquiry on that charge it was declared that the appellant caused to be in service. It is pointed out that this order is wholly arbitrary and violative of the principles of natural justice.

Regulation 19 extracted above declares that after five years'' continuous absence from duty whether with or without leave a municipal servant ceases to be a municipal employee. The appellant was absent without leave and in fact he failed to join duty in spite of repeated directions by the competent authority. By 9th February 1976 when the show-cause notice was issued he was absent from duty for a period of only three years nine months. Regulation 19 was, therefore, not attracted. But, the appellant continued to be absent without leave and without obtaining permission from the competent authority and by 9th November 1977 he was absent for more than five years. When the order dated 9th November 1977 was passed the requirements of Regulation 19 were satisfied. Earlier on 9th February 1976 when the show-cause notice was issued to him as to why he should not be demoted for a period of three years for the charge of unauthorised absence, of course, does not arrest the operation of Regulation 19 or preclude the authorities from acting under that Regulation. If the requirement of that Regulation was satisfied, the authorities were justified in taking action to terminate his services.

It was argued that Regulation 19 is ultra vires of section 81 of the Act, which so far as it is relevant for our present purpose reads as follows :

81(1). - The Standing Committee shall from time to time frame regulations in consonance with any resolution that may be passed by the Corporation -

(a) x x x x

(b) regulating the grant of leave to municipal officers and servants;

(c) x x x x

(e) regulating the period of service of all the said officers and servants;

(f) determining the conditions under which the said officers and servants, or any of them, shall on retirement or discharge receive pensions, gratuities or compassionate allowances and under which the surviving spouse or children and in the absence of the surviving spouse or children the parents, brothers and sisters, f any. dependent on any of the said officers and servants, shall, after their death, receive compassionate allowances and the amounts of such pensions, gratuities or compassionate allowances;

(g) x x x x

(h) in general, prescribing any other conditions of service of the said officers and servants.

(2) No regulation made by the standing committee under this section shall have force or validity, unless and until it has been, confirmed by the Corporation, nor, if it is made under clause (f). unless and until it has been confirmed by the State Government.

Regulation 19 framed in exercise of the powers vested u/s 81 of the Act constitutes a condition of service. There is nothing in section 81 which declares that notwithstanding anything contained in the Regulations, an employee of the Municipal Corporation shall continue in service until the age of superannuation. In fact his continuance in service is subject to the Regulations framed under the Act and Regulation 19 being one framed under the Act and constituting a condition of service is binding both on the Corporation and the employee who accepted the service subject to those Regulations. We do not see how this Regulation is ultra vires of section 81 or any other provision of the Act.

The further question however is whether Regulation 19 is arbitrary and violative of Articles 14 and 16 of the Constitution. If not, whether the action of the respondents is arbitrary and offends the principles of natural justice.

Regulation 19 directs that after five years'' continuous absence from duty whether with or without leave, a municipal servant ceases to be a municipal employee. A person is employed to render service and if he absents himself for an abnormally long period of five years, obviously the Corporation would be unnecessarily burdened by such an employee and it cannot satisfactorily discharge the duties statutorily imposed upon it. That Regulation cannot be said to be wholly arbitrary or unguided. It does non vest any arbitrary authority on the employer to terminate the service of an employee before the age of superannuation. In so far as the Regulation directs that a municipal servant on leave for five years or more ceases to be a municipal employee. It is undoubtedly arbitrary, for by granting leave the employer represents to the employee that he is still in service and would be on leave for a period of five years. That means that at the end of five years he would still be in service and may return to join duty. Yet the Regulation declares that he ceases to be in service. This portion of the Regulation is. therefore, arbitrary and cannot be sustained. However, if the employee is absent continuously for a period of five years from duty without leave, there is every justification of providing for termination of service of such employee and to hold that he would cease to be in service. However, there may be cases where for very justifiable reasons and by circumstances beyond his control, the employee is unable to join duty.

In some cases whether an employee is actually absent from duty continuously for a period of Five years itself may be in dispute requiring an enquiry. In such a case, the enquiry cannot be dispensed with. Regulation 19 itself does not lay down that no enquiry should be conducted. When the Regulation in terms does not dispense with an enquiry, there is no reason to imply that it does not strike it down as arbitrary. It must be construed as laying down that in case it is established that an employee was continuously absent for five years without leave and without any justification, he would cease to be in service and his services could be terminated. Those facts have to be established at an enquiry which should be made observing the principles of natural justice and giving the employee sufficient opportunity to make his representation. Regulation 19, which authorises the Corporation to declare that an employee ceases to be in service in case of continuous absence of five years, in our view, is reasonable and cannot be termed as vesting an unguided power in the corporation as to be violative of Article 14 of the Constitution or violative of anything contained in section 81 or any other provision of the Act. In this view of the matter, Regulation 19, in so far as it directs that after five years* continuous absence from duty with leave a municipal servant ceases to be a municipal employee, must be held to be arbitrary and violative of Article 14 of the Constitution; but in so far as it directs that after five years'' continuous absence from duty without leave a municipal servant ceases to be a municipal employee cannot be termed as unconstitutional. However, the order of cessation from service may be made only after an enquiry, and therefore the Regulation cannot be held to be arbitrary or ultra vires of Article 14. Termination of an employee''s service without any enquiry and without observing the principles of natural justice would, therefore, be liable to be struck down. The result of a challenge to an order of cessation of service would therefore depend on the facts and circumstances of the particular case.

On behalf of the appellant on the strength of several decisions, which declare that a Government servant to whom article 311 of the Constitution applies, acquires a status, arguments were addressed at length that his service cannot be terminated without issuing a show-cause notice and proper enquiry. It was also contended that statutory and public Corporations which are constituted by the State are amenable to the writ jurisdiction of the High Court and if the service conditions could be altered unilaterally by the Corporation, an employee acquires a status and that status cannot be disturbed by the employer even in purported exercise of the power vested in it under the Regulations such as Regulation 19. The termination in this case is on the ground that the appellant absented himself for more than five years without obtaining leave and in spite of his being asked to resume duty. The termination of service is under Regulation 19. A right to hold an employment is undoubtedly a right subject to the rules and regulations and an employee can be removed from service according to the rules as laid down in Tara Singh and Others Vs. State of Rajasthan and Others, .

That however does not conclude the matter. The Supreme Court earlier in Jai Shankar vs. State (AIR 1960 SC 492) held that even though the Service Regulations provided for automatic termination of service for overstaying the leave, still removal of a person from the Government service without giving an opportunity to show cause is illegal and violative of article 14 of the Constitution. The Court held that the constitutional protection of article 311 cannot be taken away by contending that under the Service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated. The Court further observed (page 494):

...The Regulation involves a punishment for overstaying one''s leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed.

In Deokinandan Prasad Vs. The State of Bihar and Others, considering a somewhat similar rule contained in Bihar Service Code 1952, which provided for automatic termination of service for continuous absence for five years, the Supreme Court held that an order of termination passed without giving opportunity to the Government servant offends article 311 of the Constitution. The employees of the Bombay Municipal Corporation are not public servants to whom article 311 applies, but nonetheless they acquire a status by virtue of their appointment under the statutory rules and their conditions of service are governed by the rules framed under the Bombay Municipal Corporation Act. It is not a mere contract. The service of any person who has protection of a statute cannot be terminated arbitrarily. Though article 311 would not apply, the order of termination, when challenged, must be shown to be not arbitrary and illegal. It must not violate the protection afforded by article 14 of the Constitution which applies to all authorities within the meaning of article 12 and the Bombay Municipal Corporation is undoubtedly covered by article 12. We have, therefore, to see whether the order intimating the appellant that he has ceased to be in service on account of continuous absence from duty for five years is arbitrary and violative of article 14. Though Regulation 19 does not insist on an enquiry being made or upon a show-cause notice being issued before termination of service thereunder, any order terminating the services of an employee cannot be made arbitrarily. If an Employee is removed from service under Regulation 19, it does cast a stigma on him. He would carry with him the charge that he has been a persistent absentee - a charge held proved without holding any enquiry whatsoever and without even asking him to show cause why he should not be treated as having exposed himself to being removed from service for absence from duty for more than five years. If Regulation 19 were not framed, removal from service on any such allegation would have undoubtedly necessitated framing of a charge, issuing of a show-cause notice, making an enquiry and affording the charged officer to make his representation against the proposal to terminate his services and consideration of his representation before making any order of removal from service. Merely because in respect of such an allegation against the employee, a service Regulation is framed authorising termination of service without enquiry, such a removal does not any the less cease to be a penalty and the employer is not absolved from the obligation of observing the principles of natural justice and giving an opportunity to the employee to make his representation against the proposed action. May be, that an employee was absent for more than five years, but if a show-cause notice were issued, the employee would be able to show a very good cause for not attending to his duty and for absenting himself. May be he was detained under some law and he could not, with the best of his efforts, attend to his duty. Surely, the Regulation does not envisage termination of service in such a case. In our view, while Regulation 19 authorises termination of service for not attending to duties for more than five years or absenting himself from duty for a period of five years, it does not absolve the employer from making an enquiry in this regard and affording an opportunity to the employee to make a representation in regard to the allegation against him and the action proposed to be taken. Although Regulation 19 constitutes condition of service as it has the effect of terminating service on an allegation which casts a stigma, it does not cease to be a punishment. Although it may not be so termed, it does amount to penalty and, therefore, calls for observance of the principles of natural justice.

Though we have held Regulation 19 to be valid in so far as it lays down that if a Municipal employee remains absent from duty without leave for a continuous period of five years will cease to be in service, the principles of natural justice would have to be observed before ordering cessation of service, we are of the view that if on the admitted facts the conclusion is inescapable and the competent authority has no option but to order cessation of service, no useful purpose would be served in directing any enquiry. Issuance of any writ in such cases would be futile. In Shahoodul Haque Vs. The Registrar, Co-operative Societies, Bihar and Another, the Supreme Court dealing with the case of non-observance of principles of natural justice and violation of article 311 of the Constitution in terminating the service of a Government servant, held (page 1277) :

...On the facts before us, we think that it will be useless to afford any further opportunity to the appellant to show cause why he should not be removed from service. The un-denied and undeniable fact that the appellant had actually abandoned his post of duty for an exceedingly long period, without sufficient grounds for his absence is so glaring that giving him further opportunity to disprove what he practically admits could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. It would only prolong his agony.

Very recently in S.L. Kapoor Vs. Jagmohan and Others, the Supreme Court was considering the question whether failure to observe principles of natural justice at all matters if observance of the principles of natural justice would have made no difference, the admitted and indisputable facts speaking for themselves. Chinnappa Reddy, J. speaking for the Court observed (page 147):

...where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.

In the present case, however, any enquiry would be wholly futile and superfluous. On the appellant''s own admission he did not join duty from 8th May 1972 and until the order dated 9th November 1977 was passed. He has not offered any explanation whatsoever in whatever enquiry was conducted or even now in the writ petition so as to call for any enquiry. In the affidavit filed by the appellant in June 1973 before he sought to challenge the order dated 9th November 1977 informing him that he has ceased to be in service from 8th May 1977 all that he stated was :

I submit that the order dated 8th May, 1972 passed by the City Engineer reverting/transferring me from the post of Meter Supervisor to work as Acting Head Clerk is bad, illegal, unconstitutional, mala fide and inoperative in law on the grounds mentioned in the petition.

I say that if the said order dated 8th May 1972 is implemented and I am forced to work as acting Head Clerk, I would suffer great humiliation and mental injury which cannot be compensated in terms of money. After the said order was passed I have been compelled to remain absent from duty and I have not been paid any salary for nearly a year....

What those compelling reasons for absenting himself from duty were he did not choose to state. Even after amending his writ petition and challenging the order dated 9th November 1977 ousting him from service, in the affidavit in December 1978 he only stated that the order transferring him "was passed without any jurisdiction and in order to humiliate me and out of extraneous consideration. I was, therefore, justified in disobeying the order of transfer dated 9th May 1972, which has no legal or valid basis whatsoever. My objection to the said transfer is bona fide." He then specifically referred to the order dated 9th November 1977 and stated :

...the department did not take any further action on the basis of the second enquiry and now they have stated that I have been treated as having ceased to be in the service of the Bombay Municipal Corporation, because I was continuously absent for more than 5 years, in terms of Rule 19 of the Municipal Service Regulations. I submit that the conduct of the authorities in relation to the departmental enquiries held against me clearly establishes that the department was interested in harassing me and humiliating me.

In this affidavit, in regard to the order of transfer itself he merely stated that a permanent employee of the Bombay Municipal Corporation had a right to continue in the service of the Corporation till he attains the age of 58 years. However, the Bombay Municipal Corporation has a right to retire a municipal employee by giving him three months'' notice in public interest. He asserted :

...I have been ready and willing to continue in the service of the Corporation and to attend to my duties which the Corporation can call upon me to perform under the Municipal Service Regulations. I submit, therefore, that Rule 19 which provides that after 5 years'' continuous absence from duty whether with or without permission a municipal servant ceases to be a municipal employee is arbitrary, totally unfair and unreasonable and, therefore, is violative of articles 1.4 and 16 of the Constitution and is void.

He did not mention in any of his affidavits any valid reason why he absented himself from duty which needed to be enquired into. Even before the learned Single Judge, the learned counsel for the appellant-petitioner could only assert:

...his client would have pointed out that his petition was pending in this Court challenging the order of transfer. The petitioner refused to report back for duty as according to the petitioner the order of transfer was void.... that there were certain departmental proceedings which were commenced against the petitioner during the period from 1972 to 1977 and the petitioner would have pointed out that the pendency of such departmental enquiry was sufficient ground for the petitioner not to report back to the duty.

Even if any enquiry were held after issuing a show-cause notice to him, the facts admitted by the appellant stand out and cannot be obliterated. Assuming that he would have been successful in establishing what he has stated in his affidavits, as rightly pointed out by the learned Single* Judge, that does not afford a valid ground for remaining absent from duty. Regulation 19 does not permit absence from duty without leave on any such ground. We have already held that this Regulation is valid to that extent. In the face of the appellant''s own admission that he was absent for more than five years, directing any enquiry would not serve any useful purpose. In fact, it would be counter-productive; the appellant would be unnecessarily burdened with an enquiry which would not in any way help him. It is already eighteen years since he ceased to attend to his duties and fifteen years since his services were terminated. Any enquiry now directed in the facts of this case is bound to only prolong the agony of the appellant. If that was all the excuse for his absence without leave for five years, we do not think it was justifiable. We find ourselves in agreement with the learned Single Judge that "both these grounds are insufficient". The absence from duty without leave being incontrovertible, the Competent Authority had no option but to declare that the appellant had under Regulation 19 ceased to be in service; no other order could be made by him. In our view, the failure to make an enquiry, in the circumstances, has not occasioned any injustice. Hence no interference is called for by this Court in exercise of its extraordinary jurisdiction under article 226 of the Constitution.

In the result, the appeal fails and is accordingly dismissed, but in the circumstances of the case, we make no order as to costs.