Smt. Poonam Parihar vs Sher-e-Kashmir University of Technology and Others

V.K. Jhanii, J.—This letters Patent Appeal is directed against order dated 12-04-2002 passed by the learned Single Judge, whereby the

writ petition filed by the appellant for quashing the order terminating her services has been dismissed and consequent thereof order dated 26-07-

2001 terminating the services of the appellant has been up held.

In brief the facts are that for the post of Technical Assistant (Home Science) minimum qualification was M.Sc. (Home Science) but vide Sher-e-

Kashmir University of Agricultural Science & Technology's (S.K.A.U.S.T.) order No. 322 of 1994 dated 06-05-1994 the appellant, namely

Poonam Parihar, who was only B.Sc. (Home Science) was appointed as Technical Assistant (Home Science) on adhoc basis for a period of three

months on a consolidated pay of Rs. 1740/ without allowances . As a consequence of appointment she was posted at Krishi Vigyan Kendra

(K.V.K.) R.S.Pura, Jammu.

On the expiry of three months vide order dated 03-09- 1994 adhoc contractual appointment was extended for a further period of three months

after giving one day's break. There-after vide order dated 23-11-1994 the appellant was given extension of six months again on adhoc basis or till

the post was to be filled up in accordance with the recruitment Rules. Vide order dated 06-05-1995 the adhoc appointment was extended for a

further period of six months giving one day's break. There after vide order dated 20-11 - 1995 as recommended by the Director Extension

Education, the appellant was adjusted temporarily as Technical Assistant (Home Service) against the available vacancy. She was to remain on

probation for a period of two years. However, vide order dated 24-11 -1997 on the recommendation of Chief Scientist, Krishi Vigyan Kendra,

R.S.Pura, the probation of the appellant was waived of w.e.f. 20-11-1997, though it was ordered that the appointment will not confer claim of

permanency on the post held by her and she would continue as temporary employee of S.K.A.U.S.T.

Appellant proceeded on earned leave for a period of 23 days on account of domestic problem w.e.f. 01-12-1998 to 31-12-1998. During the

period of leave she got admission in M.Sc. (Home Science) Extension Education in Kumari R.C. Mehla P.G. College, Mainpuri affilated with Dr.

B.R. Ambedkar University, Agra and Started attending classes. On the expiry of the leave period she joined on 24-12-1998, but again proceeded

on leave on 06-01-1999 to 06-02-1999. After the expiry of the leave period she did not join. Chief Scientist, KVK, R.S.Pura vide letter dated

10-02-1999 asked her to duty. Appellant instead of joining the duties vide application date 06-02-1999. which was received in the office of the

Chief Scientist, KVK R.S.Pura on 20-02-1999 informed the Chief Scientist that she has obtained admission in M.Sc. (Home Science) at Mainpuri

and requested for sanction of deputation for under going the said course under Faculty Improvement Programme. Vide a note dated 25-02-1999

the Chief Scientist forwarded her request to the Registrar. In his note the Chief Scientist also mentioned that under the rules the appellant cannot be

allowed to persue higher studies and therefore, while considering her case for deputation for M.Sc. Programme, she may be shifted to some non

ICAR Scheme. On receipt of the note forwarded by the Chief Scientist, the Dy. Registrar in his note to the Registrar recorded that the deputation

of Poonam Parihar, Technical Assistant for M.Sc. (Home Science) at Kumari R.C. Manila P.G. College, Mainpuri cannot be considered. In this

regard reference was made to certain provisions of S.K.A.U.S.T. statutes. On receipt of note it was put up before the Vice Chancellor

S.K.A.U.S.T. who at that time was Dr. M.Y.Kamaal. The Vice Chancellor on 26-03-1999 accepted the proposal of the Deputy Registrar,

meaning thereby that the request of the appellant for considering her case for deputation for under going programme in Extension Education was

rejected. The decision of the Vice-chancellor was conveyed to the Chief Scientist, KVK, R.S.Pura, who in turn conveyed this to the appellant and

asked her to resume duty, but appellant continued to remain absent from duty . During Sept. 1999 Sher-e-Kashmir University of Agricultural

Sciences & Technology was bifurcated into S.K.A.U.S.T. Jammu (for Jammu Province) and S.K.A.U.S.T Kashmir (for Kashmir province).

Appellant's institute i.e. Krishi Vigyan Kendra, R.S.Pura fell in the jurisdiction of S.K.A.U.S.T. Jammu and so she became the employee of

S.K.A.U.S.T. Jammu.

The University as a follow up action to the order of Vice Chancellor whereby the request of the appellant for sanctioning deputation to under go

M.Sc. (Home Science) Course was rejected decided to proceed against the appellant for her un- authorised absence from duty. Vide

memorandum dated 29-12-1999, the appellant was informed that the University proposed to hold an enquiry against her under Rule 33 of Jammu

and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 read with Clause 26, chapter IV of S.K.A.U.S.T. Statutes 1991. The

grounds on which the enquiry were to be held were set out in the enclosed Articles of Charges. The allegations on which the charges were based

were also set out in Annexure - II to the Memorandum. Appellant was asked to submit written statement in her defence not later than 31-01-

2000. She was also asked to state whether she desires to be heard in person and to furnish the names and addresses of the witnesses whom she

wishes to call in support of her defence and also to furnish the list of any document(s) which she wishes to produce in support of her defence. She

was also told that if for the purposes of preparing her defence, she wishes to inspect and take extracts from any official records, she would furnish

a list of such records to the Dy. Registrar so that arrangements could be made to provide facilities for the purpose. She was further informed that if

the written statement in her defence is not received on or before the date specified, the enquiry will be held exparte.

Vide University memorandum dated 04-04-2000 an enquiry was ordered in terms of Rules 33 of the J&K Civil Services (Classification,

Control and Appeal) Rules 1956 read with Clause 26, Chapter IV of SKAUST Statutes 1991.

Appellant reported for duty on 19-04-2000 and her joining report was accepted subject to out come of the enquiry proceedings initiated

against her. Appellant challenged the enquiry and also the action of the University in not releasing her salary by filling writ petition SWP No.

2440/2000. In CMP No. 2636/2000 this Court vide order dated 14-12-2000 gave directions to the University that unless there is any legal

impediment the University will release the salary of the appellant and she shall be posted appropriately in the University.

In pursuance of the interim order dated 14-12-2000 (supra) the University took a decision on 16-01-2001 that since Article 126 of J&K Civil

Service Regulations lays down that un-authorised absence involves loss of appointment, which in the case of the appellant would mean loss of

appointment w.e.f. the date she remained on unauthorised absence i.e. 06-02-1999 and so this being a legal impedliment in releasing her salary at

that stage, the same would be reviewed once the report of the enquiry already initiated is made available. However, in deference to the interim

orders of this court, the appellants was directed to report to Chief Scientist, KVK, R.S.Pura for further duties.

Appellant filed two CMPs i.e. CMP No. 86-E/01 and CMP No. 3-K/01 praying for the release of her salary. On 10-05-2001 CMP was

disposed of on the basis of the statement made by the Counsel for the University, who submitted that the salary of the appellant stands re-

leasedw.e.f. 18-01-2001 and she is at liberty to collect the same from the concerned office. Regarding the period from 19-05-1999 i.e. the date

on which the appellant joined, it was stated that the matter would be examined in the office and thereafter needful would be done by releasing the

same on or before 30-06-2001. Counsel for the University also assured the court that henceforth the salary of the appellant would be paid to her

alongwith other Staff of the Centre at R.S.Pura every month.

As noted earlier, in SWP No. 2440/2000 the appellant had challenged the initiation of the enquiry proceedings, but this court did not accept

the prayer of the appellant for staying the enquiry proceedings.

During the Course of enquiry the appellant was afforded an opportunity of hearing and she availed the opportunity to defend herself. After

completion of the enquiry proceedings the Enquiry Officer submitted the enquiry report and concluded that both the charges i.e.

(i) Charge of misrepresenting facts for personal gains; and

(ii) Charge of unauthorised absence from duty, are proved against her.

On the basis of the findings of the enquiry Officer the Disciplinary Authority issued Notice dated 08-05-2001 calling upon the appellant to

show cause as to why her services be not terminated as provided under Article 128 of J&K Civil Service Regulations read with Rules 33, 34 of

J&K Civil Services (Classification, Control & Appeal) Rules 1956.

Appellant challenged the show cause notice by filing another CMP No. 103 - E. On 28-05-2001 notice in the said CMP was issued and it

was directed that if the respondents have not completed the enquiry, they shall not pass any order till next date.

In the meantime, appellant filed application dated 28-05-2001 to the Chief Scientist, KVK, R.S. Pura seeking certain clarifications for replying

the show cause notice, which was properly replied by the University and the same was received by her on 06-07-2001. This court finally

dismissed CMP No. 103-E/2001 in which the appellant had sought quashing of the show cause notice and with the dismissing of the CMP, the

restrain order which was issued against the University for passing final order stood lifted. Appellant however gave no reply to the show cause

notice even after having been provided clarification sought by her through her application dated 28-05-2001. Since no reply was given with in the

stipulated period, the University on finding that she has nothing to say in her defence to the proposed penalty, passed order terminating her services

w.e.f. 26-07-2001.

Appellant challenged the order terminating her services by filling SWP No. 2551 of 2001, the order passed in which is the subject matter of

this appeal. In re- sponse to the notice of the writ petition, University in its counter stated that the order passed against the appellant was upon

proper application of mind and in consonance with the University Statutes together with the relevant provisions of the J&K Civil Services

(Classification Control & Appeal) Rules 1956.

Learned Single Judge did not find any merit in the submission of the appellant that she had not been afforded full opportunity to defend the

charges levelled against her. It was held that the appellant was informed about the enquiry proceedings; the appointment of the Enquiry Officer was

also brought to her knowledge; she participated in the Enquiry proceedings and after the conclusion of the enquiry proceedings she was given

show cause notice. Alongwith the show cause notice, copy of the enquiry report too was made available to her, but she did not care to give any

reply. The learned Single Judge also did not accept the submission of appellant that there was a breach of principles of natural Justice. Resultantly

the writ 'petition was dismissed. Hence the present appeal.

Mr. Sunil Sethi, learned Counsel for the appellant submitted that the order terminating the services of the appellant came to be passed while

writ petition SWP No. 2440/2000 challenging the initiation of the enquiry proceedings had been admitted to hearing and was pending, but the

University did not wait for the disposal of the writ petition and passed the order with malafide intentions. He submitted that the findings of enquiry

are based on no evidence. He also submitted that the appellant had levelled allegation of sexual harrassment against the Vice Chancellor, but the

learned Single Judge has conveniently failed to take notice of the same. He further submitted the attitude of the University Authorities and enquiry

officer was hostile towards the appellant and all were bent upon to terminate her services as she refused to concede to the sexual demand of the

Vice Chancellor. In support of his Submissions, learned counsel for the appellant has cited judgement of this court in Manohar Lal Vs State of

J&K 2001(3) SCT 273 wherein the learned Single judge of this court held that absence from duty is not misconduct Madan Lal Vs The Presiding

Officers 2001(3) S.C.T. 1084 from Punjab & Harayana High Court was cited for the proposition that if the findings are based on no evidence, the

award would suffer from an error apparent on the face of the record. Tejwant Singh v. State of Punjab & Anrs. 2000(1) RSJ 739 another

judgement of Punjab & Haryana High Court was cited wherein it is held that the order passed by the punishing authority against whom the alleged

misconduct was levelled by the delinquent, would be bad as he cannot become Judge in his own cause and the principles of natural Justice would

be violated. Some other Judgements were also cited in regard to the manner in which the departmental enquiry is required to be conducted and

how the principles of natural justice are to be observed in such a enquiry. Lastly, the learned Counsel submitted that it was within the knowledge of

the then Vice- Chancellor that the appellant proceeded for higher studies and infact there was a verbal assurance from him that her deputation

would be sanctioned.

On the other hand, learned counsel appearing on behalf of the university contended that the appellant was afforded full opportunity to defend

the charges against her and the enquiry officer on the basis of the material on the enquiry file has given a definite findings that not only the appellant

remained absent from duty but also that she was guilty of mis-representing the facts as she had taken admission in M.Sc. (Home Sciences) in an

institution outside the State, without obtaining proper permission/approval from the competent authority. Learned counsel for the respondent

further submitted that no oral assurance was ever extended by the Vice Chancellor that her request for deputation for under going higher studies

would be accepted. Mr. Nargal, learned Counsel appearing for the University further submitted that in fact the Vice Chancellor in his note dated

26-03-1999 specifically rejected, the request of the appellant.

We have heard the learned Counsel for the parties at length and gone through the record of this case minutely.

The case of the appellant before the Enquiry Officer, has been that her's taking admission and persuing the studies in M.Sc. was within the

knowledge of the University authorities and in fact the then Vice Chancellor had assured her that her request for deputation would be accepted,

meaning there by that the University in fact allowed the appellant to go for higher studies and so there was no question for unauthorised absence

from duty or mis representation of facts. It has also been the case of the appellant that taking her admission in M.Sc. (Home Sciences) in an

institution out side the state is not against the Rules and the statutes of the University and in fact the Rules and Statutes provided that she could take

admission in M.Sc. (Home Sciences) in an institution out side the State. 21. The stand taken by the appellant on the face of the record is without

any basis. It is not in dispute that the appellant had proceeded on leave from 1-12-1998 to 23-12-1998 and secondly from 6-1-1999 to 6-2-

1999 by stating that she wants to proceed on leave because of domestic problem. In her application for leave she did not disclose that she had

taken admission in M.Sc and has started attending classes. The record shows that she started attending the classes from 4-12-1998 and continued

to do so till 23-12-1998. She joined duty on 24-12-1998 but again proceeded on leave from 6-1-1999 to 6-2-1999. It appears that during the

period from 24-12-1998 to 5-1-1999 her college was closed due to Christmas vacations, and for that matter she remained on duty during that

period, but immediately there-after she proceeded on leave and on the expiry of the leave period she did not join. On her failure to join the duties,

the Chief Scientist, KVK, R.S.Pura vide letter dated 10-2-1999 asked her to join duties but instead she made application though dated 6-2-1999

i.e the day when her leave was to expire, but it was received in the office on 20-2-1999 in which she requested for sanction of deputation for

undergoing M.Sc Course (Home Science) at Mainpuri. The fact that she submitted ante-dated application and in that application she did not make

a mention that the Vice Chancellor had verbally assured her that her deputation would be sanctioned, clearly shows that the stand now taken is

clearly an after thought. In fact her request was considered by the University authorities in terms of the Statutes of the University and the Vice

Chancellor vide order dated 26-3-1999 rejected her request. In case the Vice Chancellor had verbally assured her that her deputation would be

sanctioned then there was no reason why her request in this regard was rejected. Appellant was well aware of the charges levelled against her,

initiation of the enquiry proceedings, appointment of the Enquiry Officer and she participated in the enquiry and also made an attempt by filing writ

petition S W P No. 2440/2000 to stall the enquiry proceedings but since her attempt failed she started levelling false allegations of sexual

harassment against the Vice Chancellor. Learned Single Judge has noted that the Vice Chancellor by name has not been made a party respondent

in the writ petition. A perusal of the record of SWP No.2440/2000 further shows that in the writ petition no such allegations were levelled against

the Vice Chancellor and during the pendency of the said writ petition when her attempt to stall the enquiry proceedings failed, she probably thought

that it would be convenient to level allegations of sexual harassment against the Vice Chancellor so as to gain sympathy from the court.

Submission of the learned Counsel for the appellant that the appellant was not afforded full opportunity to defend-the charges levelled against

her has rightly not been accepted by the learned Single Judge. Otherwise too learned counsel has not been able to point out as to what prejudice

has been caused to the appellant. It is now well settled that the complaint of violation of procedural provision should be examined from the point of

view of prejudice, viz, whether such violation has prejudiced t h e delinquent officer/ employee i n defending himself/herself properly and

effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting

aside the enquiry and/or the order of punishment, if no prejudice is established t o have resulted there-from, it is obvious, no interference is called

for.

In The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, , Krishna Iyer ,J (as His Lordship

then was) said:

Natural justice is no unruly horse, no lurking land-mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded

against, the form, features and the fundamentals of such essential processual Properiety being conditioned by the facts and circumstances of each

situation, no breach being conditioned by the facts and circumstances of each situation no breach of natural Justice can be complained of.

Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We

can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the

matter

In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, the Supreme Court of India said that since the audi alteram partem rule is

intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating

or plainly contrary to the common sense of the situation.

Bhagwati, J, (as His Lordship then was) in Maneka Gandhi's case (Supra) said,

What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation.lt may be a sophisticated

full fleged hearing or it may be hearing which is very brief and minimal, it may be a hearing prior to the decision or it may even be post-decisional

remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations of suit the exigencies of myriad kinds of

situations which may arise"".

As to what are the requirements of 'principles of natural justice, which are required to be observed were also explained by the Supreme Court

of India in Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, . Their Lordships of the Supreme Court

opined-""It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential

elements of natural justice which are :(a) no man shall be Judge in his own cause; and (b) no man shall be condemned, either civilly or criminally,

without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial

pronouncements these two principles of natural justice have been expanded, e.g., a party must have due notice when the Tribunal will proceed.

Tribunal should not act on irrelevant evidence or shut out relevant evidence. If the Tribunal consists of several members they all must sit together at

all times; Tribunal should act independently and should not be biased against any party; its action should be based on good faith and order and

should act in just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above.

The Supreme Court thus has settled that audi alteram partem rule is not cast in a rigid mould and that it may suffer situational modifications.

In this case, as noticed earlier the appellant proceeded twice on earned leave by saying that she has some domestic problems, but during the

period of leave she took admission in an institution out-side the State for persuing her studies in M.Sc (Home Science). She did not inform the

University authorities-nor she has been able to prove that there was any verbal assurance on the part of the then Vice Chancellor Dr. M.Y. Kamal

that her deputation for persuing higher studies would be sanctioned or sponsored by the University. In fact Univer- sity for taking admission in

M.Sc (Home Science) on deputation basis or on sponsorship basis. Chapter -VI of S.K.University of Agriculture Sciences & Technology Statutes

deals with the 'Faculty Improvement Programme'. Under Rule 38, the University is empowered to sponsor any teacher under its employment for

undergoing postgraduate training in various agricultural Universities or institutes of repute outside the State, provided the postgraduate training is

considered essential by the Vice Chancellor for improvement of various programmes of the University or the Teacher fulfills such pre-requi-sites

for selection to postgraduate training as may be prescribed by the University or admitting University/ Institute, or the Teacher has applied for

consideration of his/her sponsorship for postgraduate training in the manner and time schedule prescribed by the University, or the discipline for

such postgraduate training is specified by the Vice Chancellor. It also provides that no Teacher may be sponsored for Master's degree by the

University in case he/she has less than five years of total service. Under Rule 37 (i) Teacher' means any person under the employment of the

University as defined in the Act and includes, Research Assistant, Demonstrator, Assistant Research Officer or any other person of equal rank

associated with teaching/research/extension education in the University. Admittedly, the appellant had less than five years of service as on the date

of taking admission and was also not a Teacher within the meaning of Rule 37 (i). It therefore follows that the appellant being Technical Assistant

was not eligible under rules for such sponsorship nor her request could be considered or accepted under the Statutes or the Rules of the

University. In these circumstances, We fail to understand how, the appellant can justify her absence from duty. Appellant was given full opportunity

to defend herself but since she did not succeed in her attempt to stall the enquiry proceedings, she levelled false allegations against the Vice

Chancellor and also against the Enquiry Officer as well as other University Authorities, which clearly shows that attempt through out of the

appellant has been to adopt pressure tactics so as to compell the University Authorities not to proceed with the enquiry.

In view of the above, We are of the considered view that the learned Single Judge has committed no error of law or on fact in dismissing the

writ petition and upholding the order terminating the services of the appellant. Accordingly, the appeal is dismissed with costs of Rs. 5000/-.