Steel Authority of India Limited vs Gusul Azam @ Gosulaazam Shah and Others

M.Y. Eqbal, J.—This appeal by the appellant Steel Authority of India Limited, is directed against the judgment dated 18.3.2009 passed in W.P. (S) No. 4217 of 2008 whereby the learned Single Judge allowed the writ petition filed by the respondent-writ petitioner and set aside the order of termination of services of the respondent.

The facts of the case lie in a narrow compass: The respondent was in the employment of the appellant on the post of Khalasi since 1983. While the respondent was working as Hospital Attendant, his service was terminated on the allegation that on 25.7.2008, he led a group of 50-60 persons armed with weapons and formed unlawful assembly in Sector 1/C and started breaking the window pens of the quarter and also put on fire a Maruti Car which was completely burnt. First information Report of the alleged incident was lodged and a criminal case was instituted. The service of the petitioner was thereafter terminated in purported exercise of power under Clause 39 of the Certified Standing Order without giving show cause notice and seeking explanation and without holding departmental enquiry.

The learned Single Judge after hearing the parties set aside the order of termination on the ground that the respondent was straightway dismissed without affording any opportunity of hearing which is violative of principles of natural justice. The learned Single Judge, therefore, while quashing the order of termination gave liberty to the appellant to take appropriate action after observing the procedures and adhering to the principles of natural justice.

Mr. Indrajeet Sinha, learned Counsel appearing for the appellant, assailed the impugned order as being contrary to law and the Certified Standing Orders of the appellant-Company. Learned Counsel submitted that Clause 39 of the Certified Standing Orders has statutory force which empower the management to dismiss or remove the employee without holding an enquiry in the event it is found that holding of enquiry is being inexpedient or against the interest of security to continue the employee in service. Learned Counsel submitted that the learned Single Judge has failed to take notice of Clause 39 of the Certified Standing Orders and erred in law in holding that in no case the service of an employee can be terminated without holding a departmental enquiry.

Clause 39 of the Certified Standing Orders as quoted in paragraph 6 of the memo of appeal reads as under:

Special Procedure in Certain Case: -Where a workman has been convicted for a criminal offence in a Court of Law or where the management is satisfied, for reasons to be recorded in writing, that it is inexpedient or against the interest of security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure laid down in Standing Order No. 38.

It is true that the learned Single Judge is not correct in law in holding that there cannot be dismissal or termination of the services of an employee without holding a departmental enquiry and without complying the principles of natural justice, but in the instant case, the question that falls for consideration is as to whether while passing the impugned order of termination of the services of the respondent, the concerned authority has complied the requirements of Clause 39 of the Certified Standing Orders.

It is well settled that the doctrine of principles of natural justice has no application when the authority concerned is of the opinion that it would be inexpedient to hold an enquiry and that it would be against the interests of security of the Corporation to continue in employment the offender-workman when serious acts are likely to affect the foundation of the institution. But while dismissing the employee without holding domestic enquiry, the authority must be satisfied for the recorded reasons with the materials available before him that continuance of the workman is neither expedient nor in the interest of security.

In the case of Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, , their Lordships observed:

We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge (1723) 1 Str 557 : 93 ER 698.) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: " ''To do a great right'' after all, it is permissible sometimes ''to do a little wrong''." (Per Mukharji, C.J. in Charan Lal Sahu Vs. Union of India, , SCC P. 705 para 124.) While interpreting legal provisions, a Court of law cannot be unmindful of the hard realities of life. In our opinion the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "presidential.

In Satyavir Singh and Others Vs. Union of India (UOI) and Others, , a three-Judge Bench of this Court has held that taking of appropriate action in exceptional circumstances is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. Normally, it is the officer on the spot who is the best judge of the situation and his decision should not be interfered with lightly. In Satyavir Singh, this Court considered the orders of dismissal passed against some of the employees of the Research and Analysis Wing (RAW) without holding inquiry as contemplated by Article 311(2) of the Constitution. The power was exercised by the disciplinary authority under the second proviso to Article 311(2). Reiterating the principles laid down in Tulsi Ram Patel and upholding the action, the Court observed that there are circumstances in which such a drastic action is called for. The Court noted that it was not possible to enumerate the cases in which it would not be reasonably practicable to hold inquiry under Article 311(2), but certain illustrative cases have been highlighted which included activities of terrorising, threatening or intimidating witnesses who might be giving evidence against a civil servant or threatening, intimidating or terrorising disciplinary authority or his family members or creating an atmosphere of violence or general indiscipline and insubordination. The Court also indicated that though it was a mandate of the Constitution to record reasons in writing for dispensing with an inquiry, it was not necessary that such reasons should find place in the final order or they should be communicated to the delinquent. It was no doubt emphasised that it would be better if such reasons are recorded in the order itself and communicated to the delinquent officer. Regarding suspension of a civil servant, the Court opined that it is not necessary that the civil servant should be placed under suspension until such time the situation is improved and it becomes possible to hold inquiry against him. According to the Court, it would be difficult to foresee how long the situation would last and when normalcy would return or be restored.

In the impugned order of termination dated 26.7.2008, a copy of which has been annexed as annexure-1 to the writ petition, it was alleged that on 25.7.2008 at about 11.00 a.m., the respondent led a mob of 50-60 persons and started breaking the window glass of a quarter and put on fire a Maruti Car which was lying by the side of the road. It is further alleged that this act of misconduct of the respondent lost faith and confidence of the Company and was against the interest of the Company. Hence, the services of the respondent is terminated in exercise of power under Clause 39 of the Standing Orders.

There is no reference of any material or the allegation made in the F.I.R. on the basis of which the authority recorded his satisfaction before passing the impugned order of termination. Although, the appellant-Management did not bring on record a copy of the F.I.R. before the learned Single Judge, but a copy of the same has been annexed along with the memo of appeal. From perusal of the F.I.R. it appears that the F.I.R. was lodged by one Sub. Inspector of Police on 25.7.2008. In the F.I.R. it was alleged that on 24.7.2008, one Md. Ehshan Ali along with more than 1000 persons armed with weapons were making agitation on the road due to which the traffic on the road was seriously disrupted. Because of the aforesaid incident, the said Ehshan Ali was apprehended. It was further alleged in the F.I.R. that on 25.7.2008 because of the arrest of Md. Ehshan Ali, the respondent and the family members of Ehshan Ali along with 50-60 persons armed with arrows and lathi came on the road. The family members of Ehshan Ali and the respondent led the mob of 50-60 persons damaged the car by putting it on fire. There is no allegation in the F.I.R. that the respondent poured the oil on the car and put it on fire. As noticed above, nothing has been disclosed in the termination order as to what was the basis of allegation that it was the respondent who put the car on fire. In that view of the matter, since the satisfaction recorded by the concerned authority is without any basis, the impugned order of termination cannot be sustained in law. In view of the omnibus allegations made in the F.I.R. against several persons, the concerned authority ought not to have invoked the provisions of Clause 39 of the Certified Standing Orders and terminate the services of the respondent. The impugned order of termination, therefore, cannot be sustained in law.

For the reasons aforesaid, there is no merit in this appeal and the impugned order of termination of services of the respondent has been rightly set aside. The appeal is, accordingly, dismissed. However, it is made clear that the appellant-Company may proceed against the respondent and take action after holding a departmental enquiry in accordance with law.