B. Padmaraj, J.
1. This intra-Court appeal by the appellant-Karnataka Silk Industries Corporation Limited is directed against the order passed by the learned Single Judge of this Court in Y.N. Krishna Murthy u Karnataka Silk Industries Corporation Limited, Bangalore : ILR2005KAR3389 whereby the learned Single Judge has accepted the petition filed by the respondent-employee and directed the appellant-employer not to proceed further in terms of the show-cause notice dated 14-2-2005, served on the respondent calling upon him to offer his explanation, with regard to certain alleged misconduct. The learned Single Judge has observed in para 15 of the impugned order as under:
15. In the circumstances, I have no hesitation to hold that the present show-cause notice is required to be interfered with on account of delay and laches and the respondents are to be directed not to proceed further on the basis of the said notice. I must also to say that even if liberty is available to the petitioner, delay is fatal in the case on hand.
It would therefore appear from the above observations made in the impugned order that the learned Single Judge has interfered with the impugned show-cause notice mainly on the ground of delay and laches and the appellant-employer has been directed not to proceed further on the basis of the said notice. This appears to be the sole reason, which weighed with the learned Single Judge to interfere with the show-cause notice issued by the appellant-employer to the respondent-employee.
2. It would be of some relevance to note here itself that when the appeal came up for preliminary hearing before the Division Bench on 13-9-2005, after the arguments were heard in part, learned Counsels for the parties requested for time to make efforts to arrive at an amicable settlement and the Court also felt that, that would be most appropriate in the circumstances of the case on hand and accordingly, adjourned the matter to 19-9-2005. Subsequently, when the matter came up for hearing before the Court on 21-9-2005, the learned Counsel appearing for the appellant informed to the Court that an offer has been made to the respondent to make a request for voluntary retirement and if such a request is made, then notwithstanding the disciplinary proceedings initiated against him, all benefits which may be due to from under the voluntary retirement scheme of the appellant-company would be paid to him, keeping in view the length of his service and the learned Counsel Sri V.S. Naik appearing for the respondent requested for a short adjournment to enable him to seek instructions from the respondent and accordingly, the matter was directed to come up on 26-9-2005. On 26-9-2005, when the matter came up for hearing, it appears that the appeal was admitted and the operation of the order under appeal was ordered to be stayed. This would only show that the amicable settlement between the parties did not materialise. Thereafter, when the matter came up for hearing before the Court on 23-12-2005, a submission was made on behalf of the respondent that during the pendency of the appeal and in the light of the interim order made by this Court on 26-9-2005, the enquiry has been initiated against the respondent and final report is submitted. A submission was also made that if a final order is passed against the respondent, pursuant to the said report, it would result in serious injury and hardship to the respondent. It was however submitted on behalf of the appellant that since the interim order was passed after hearing the Counsel for the respondent, there is no justification to modify the interim order granted earlier (26-9-2005). Having regard to the facts and circumstances of the case and since it was not in dispute that the Enquiry Officer has already submitted his report and a second show-cause notice had already been issued to the respondent, the Court being of the view that it would be in the interest of justice to direct the appellant not to take any decision pursuant to the enquiry report for a limited period and accordingly, an order has been passed directing the appellant not to take any decision adverse to the interest of the respondent pursuant to the report sent by the Enquiry Officer till 30-1-2006 and if an order is made directing the hearing of the writ appeal on 3-1-2006, it would meet the ends of justice. It is thus clear from the order made by this Court on 23-12-2005 that pursuant to the impugned show-cause notice, the enquiry has already been initiated against the respondent and a final report has already been submitted. The enquiry seems to be at the stage of issue of a second show-cause notice to the respondent. In fact, the order made by this Court on 23-12-2005 was almost in the nature of a modification of the earlier order. Thereafter, on 3-1-2006, the Bench comprising of the learned Judges Sri P. Vishwanatha Shetty, J. and Sri Huluvadi G. Ramesh, J. directed the office to list the appeal before a Bench in which the learned Judge Sri Vishwanatha Shetty is not a member; after obtaining the orders of the Hon'ble Chief Justice. Accordingly, after obtaining the orders of the Hon'ble Chief Justice, the matter has been placed before us. This is how the matter has come up before us.
3. The background facts in a nutshell are as follows.--
The respondent herein was appointed by the appellant on contract basis for a period of 3 years in terms of a letter sent to him on 21-8-1987. The terms stated in the said letter are that for the said period, the respondent would be on probation which is liable to be extended at the discretion of the appellant from time to time and the respondent shall continue to be on probation even after 3 years until his services were confirmed. By an order made on 1-10-1993, the period of probation of the respondent was extended up to 31-3-1994. No order had been passed till 1-10-1993 either extending the period of probation or confirming the services of the respondent. On 31-3-1994 the appellant was discharged from service with effect from the said date. Aggrieved by that action, the respondent challenged the same unsuccessfully before the learned Single Judge. On an appeal filed by the respondent, the Division Bench of this Court vide order dated 12-9-1996 allowed the writ appeal and set aside the order of discharge on the ground that the stigmatic order could not have been passed without following the rules of natural justice. The operative portion of the said order passed by the Division Bench of this Court in Y.N. Krishna Murthy v. Karnataka Silk Industries Corporation Limited, Bangalore : (1997)IILLJ928Kant (DB), reads as under:
21. Under the circumstances, the appeal is allowed by setting aside the judgment of the learned Single Judge and quashing the order of discharge at Annexure-G, impugned in the writ petition.
22. consequent upon me setting aside of the order impugned, the appellant is held entitled to his reinstatement and all other consequential benefits. This judgment would, however, not prevent the respondents, if so advised, to pass fresh appropriate orders for his removal, but only after the compliance of principles of natural justice. The respondents shall also be entitled to terminate the services of the appellant even retrospectively, on the basis of the allegations, as noted by them and proved after the compliance of the principles of natural justice. If the respondents decide to initiate action for discharge of the appellant within a period of one month from today and a notice in that behalf is issued, they will not be under obligation to pay to the appellant, the arrears of salary from the date of his dismissal vide Annexure-G, till the date of his reinstatement, consequent upon this judgment. In that event, the appellant shall be entitled to reinstatement forthwith and future salaries till the conclusion of the proceedings against him, if initiated by the respondents. If after initiation of the proceedings and after allowing the appellant an opportunity to show cause, the allegations of misconduct are not proved and the proceedings dropped, the appellant in that eventuality, shall be entitled to the payment of the aforesaid arrears along with interest at the rate of 18% per annum.
Consequent upon such order made by the Division Bench of this Court, the respondent was reinstated on 6-11-1996. Thereafter, a show-cause notice was issued on 8-11-1996. Reply thereto was submitted on 18-12-1996. After affording personal hearing, by an order dated 23-8-1997, the respondent was discharged from service. A statutory appeal was filed by the respondent and the same was rejected. Thereafter the respondent filed a writ petition and the learned Single Judge of this Court by an order in the case of Y.N. Krishnamurthy v. Karnataka Silk Industries Corporation Limited, Bangalore 2001(9) Kar. L.J, 488 allowed the writ petition and ordered reinstatement with full backwages and continuity of service. The operative portion of the said order passed by the learned Single Judge in Y.N. Krishna Murthy's 2001(9) Kar. L.J, 488 case, reads as under:
16. In the light of these two judgments it is clear to me that a stigmatic order require a full fledged enquiry which has not been done in the case on hand. Therefore, Mr. Narasimhan, learned Counsel is fully justified in attacking the order as vitiated in the light of these two judgments. His argument is accepted.
17. Having noticed the stigmatic order and having noticed the non-holding of an enquiry, I have no option but to set aside the impugned order dated 23-8-1997 passed by the Corporation. Before concluding I must also point out that these very allegations/averments were the subject-matter of a scrutiny by the three learned Judges of this Court. Two learned Judges of this Court have categorically ruled that the order as a whole would show that it is stigmatic in character. It was in these circumstances the matter was remitted back for redoing in accordance with the principles of natural justice. The management has issued a notice and obtained an explanation from the petitioner, but did not hold any enquiry and passed the same or similar order except changing a few sentences and few English words in the order. I must also point out at this stage that in the penultimate paragraph in the impugned order the Corporation says that 'I have applied my mind to all aspects of this case and find no reasons to differ with the order of discharge already passed on 31-3-1994'. The order which is held to be bad in law by this Court is once again reintroduced by the authority, which in my opinion runs counter to the direction of this Court. It is needless for me to point out that the orders of the Court are passed not for either disobeying or diluting and the orders are passed for implementing the same. Any deviation of an order of the Court, in my opinion is nothing but an attempt to circumvent the order passed by the Division Bench, I express my displeasure in the matter.
18. I must also point out that the appeal filed is also rejected. The communication of the appeal to the petitioner is only a two line sentence, but the respondents have produced the Board proceedings. In the board proceedings I see a remark to each one of the grounds raised by the petitioner. But at the same time the Board also has failed in its duty to notice the salient feature of a necessity of an enquiry on the facts of this case in terms of a direction of this Court. In fact in the penultimate paragraph the board itself notices that the punishment inflicted is proportionate to the shortcomings/misconduct of the appellant and action of the management is purely based on documentary evidences and his poor performance in discharging of duties. It is absolutely not known to me as to why the Board has approved the punishment order without any enquiry. Suffice it to say that the Board has equally not applied its mind to the facts of the case and therefore it requires my interference at this stage.
19. The Counsel for the management submits that the matter may be remanded to the Board for reconsideration. In the normal circumstances that request could have been accepted but in this case, I am convicted that a serious legal error is committed in the original order and no useful purpose is served in remitting the matter to the Board. In these circumstances, taking into consideration, the factual aspect of the matter, the earlier direction of this Court and its legal effect on the order and the case-laws on the subject, I deem it proper to allow this petition in its entirety and set aside the impugned order. Petitioner is entitled for reinstatement with full back wages and continuity of service and consequential benefits in accordance with law subject of course a deduction with regard to the amount already paid to the petitioner if any.
20. I also deem it proper to award cost on the peculiar facts of this case quantified at Rs. 5,000/- being payable to the petitioner on account of failure to follow the Division Bench direction by the respondent. In the result, this petition is allowed. Impugned orders are set aside. Petitioner is entitled for costs of Rs. 5,000/-payable within four weeks from today by the respondent.
Thereafter the respondent was reinstated on 7-11-2001 by extending all the benefits that flow from the said order. The respondent would however say that his benefits were not settled despite orders of this Court. The respondent was asked to work in the Head Office and he was assigned duties as Assistant Sales Officer in the Internal Audit Department. While this was so, a show-cause notice was issued on 14-2-2005 calling upon the respondent to offer his explanation with regard to certain acts of misconduct alleged against him making unsuitable for the post. The said show-cause notice issued to the respondent is at Annexure-F. The respondent sought for time to furnish reply to the show-cause notice and the same was granted. But the respondent instead of furnishing his explanation to the show-cause notice, challenged the same by way of a writ petition before this Court. The learned Single Judge of this Court by an order in the case of Y.N. Krishna Murthy (1), has accepted the petition and issued a direction to the appellant not to proceed further in terms of the show-cause notice. The appellant was also directed to make over a sum of Rs. 10,000/- to the respondent as costs. The relevant portion of the order made by the learned Single Judge reads as under:
15. In the circumstances, I have no hesitation to hold that the present show-cause notice is required to be interfered with on account of delay and laches and the respondents are to be directed not to proceed further on the basis of the said notice. I must also to say that even if liberty is available to the petitioner, delay is fatal in the case on hand.
16. Normally, Courts would not interfere with the show-cause notice. There are cases and cases. If a party is able to make out a case that the power to issue show-cause notice is either misused or abused by way of delay, the Court has to render justice by issuing appropriate direction to arrest delayed proceedings. This is one such rare case where the Court has to interfere to arrest unreasonable delayed action on the part of the respondent.
17. Before concluding, I also deem it proper to observe that 'Danda' is not the only method to maintain discipline. There are several methods available to correct an erring workmen. Management can, even without resorting to 'Danda', adopt any other method in the matter. Repeated threat of 'Danda' would only create bitterness among the employer and employees. Employees form part of the establishment. Employer and employees are two eyes of an establishment. Unless both eyes work in a right direction, body industry would suffer. Therefore, what I want to emphasis is that the employer need not always use 'Danda' as the only weapon to correct the employees.
18. In the facts and circumstances of this case, I accept this petition. A direction is issued to the respondent not to proceed further in terms of the show-cause notice impugned in this petition.
19. In the normal circumstances, I would not have imposed costs. The present facts would compel me to express my displeasure for the way in which petitioner is treated. The facts would further compel me to award costs to the petitioner to meet his legal expenses taking into consideration his status in the company. Respondent is ordered to make over a sum of Rs. 10,000/- to the petitioner as costs. Ordered accordingly.
4. We have heard the arguments of the learned Counsels on either side at a considerable length and carefully perused the relevant case papers including the impugned order made by the learned Single Judge in the light of the series of decisions relied upon by the learned Counsels on either side.
5. Learned Counsel for the appellant has contended as under:
The learned Single Judge has interfered with the impugned show-cause notice not on the ground on which it was challenged, but on the ground which was neither pleaded in the writ petition nor argued. The only ground on which the show-cause notice was challenged by the respondent in the writ petition filed before the learned Single Judge was that while allowing the writ petition filed by the respondent before this Court in Y.N, Krishna Murthy's (3) case, this Court did not grant any liberty to the appellant to initiate any action against the respondent and hence the show-cause notice issued by the appellant is without jurisdiction and the same is liable to be quashed. This is the only ground on which the show-cause notice issued by the appellant was challenged by the respondent before the learned Single Judge, but strangely the learned Single Judge interfered with the show-cause notice on an altogether a different ground which has neither been pleaded nor urged by the respondent. It is well-settled law that the interference in the disciplinary matters on the question of delay depends upon the facts and circumstances of each case. In the instant case, there was no such delay as to warrant interference with the show-cause notice. Even after the respondent was reinstated on 17-11-2001, he did not mend his ways and he was found indulging in such activities which were detrimental to the interest of the Corporation and its employees. His performance was also found to be very poor. Therefore, a show-cause notice was issued calling upon the respondent to offer his explanation. The management is the sole Judge to discipline its employees. It was minimum required of the respondent to reply to the show-cause notice. But a writ petition was filed on the ground that the show-cause notice issued was without jurisdiction in view of the order passed by this Court in Y.N. Krishna Murthy's 2001(9) Kar. L.J, 488 case. Though the learned Single Judge noticed that right of an employer to initiate proceedings against a workman is always to be respected and acted upon, but proceeded to interfere with the impugned show-cause notice on the ground of delay and laches on the part of the appellant in initiating action against the respondent, which ground was neither pleaded nor argued. Hence, the impugned order made by the learned Single Judge warrants interference in the appeal by this Court.
6. In support of his submissions, the learned Counsel for the appellant has placed reliance upon the following decisions:
1. V.K. Majotra v. Union of India : AIR2003SC3909 ;
2. Food Corporation of India and George Varghese and Anr. : AIR1991SC1115 ;
3. Registrar of Co-operative Societies, Madras and Anr. v. F.X. Fernando : (1994)ILLJ819SC ;
4. State of Punjab v. Chamanlal Goyal : (1995)IILLJ679SC ;
5. B.C. Chaturuedi v. Union of India : (1996)ILLJ1231SC .
7. As against this, the learned Counsel appearing for the respondent has contended as under:
That on 11-9-1987 the respondent was appointed as Assistant Sales Officer for a period of 3 years, which he completed by 11-9-1990, probationary period was not extended or confirmed and instead he was discharged from service on 31-3-1994. The respondent challenged the order of discharge in W.P. No. 9752 of 1994 which was dismissed by the learned Single Judge of this Court on 11-7-1994. The respondent preferred in Y.N. Krishna Murthy's (2) case and the Division Bench of this Court vide order dated 12-9-1996, pronounced two different judgments and the matter was referred to the 3rd learned Judge and the 3rd learned Judge concurred with the judgment of the Hon'ble Chief Justice and the upheld the order and direction of the Hon'ble Chief Justice and liberty was given to conduct full fledged enquiry, if so desired. This was on 1-10-1996. On 6-11-1996 the respondent was reinstated as Assistant Sales Officer and postal to Devatha Market Showroom of KSIC. Again on 8-11-1996 the respondent was issued with a show-cause notice against the alleged acts of omission and commission. The respondent submitted his explanation on 18-12-1996 and requested to hold a full fledged enquiry. After a lapse of about 5 months, the respondent was issued a letter dated 7-4-1997 enclosing the performance appraisal report for the last 6 years at stretch and the respondent was directed to submit his representation. On 17-4-1997, the respondent submitted his representation. However on 23-8-1997, he was again discharged from the service without holding the enquiry stating that there was no reason to differ from the earlier order dated 31-3-1994. The respondent filed W.P. No. 8147 of 1998 (Y.N. Krishna Murthy's (3) case) challenging the order dated 23-8-1997 which came to be allowed and this Court directed the reinstatement with full back wages and continuity of service and consequential benefits and also imposed costs of Rs. 5,000/- for non-compliance of the Division Bench direction in its order dated 6-10-2001. On 1-12-2001 the respondent was reinstated as Assistant Sales Officer and was paid back wages except consequential benefits. Respondent submitted several representations for granting the consequential benefits ever since 2001, but the same was not implemented till now. In December 2001, the respondent was posted to Audit Department after the show room was closed down during the year September 2001. Again on 14-2-2005 a show-cause notice-cum-charge-sheet was issued alleging the same charges contained in the earlier charge-sheet. The respondent challenged the charge-sheet in Y.N. Krishna Murthy's (1) case, in which stay has been granted by the learned Single Judge on 24-2-2005. The learned Single Judge allowed the writ petition and imposed costs of Rs. 10,000/- on the appellant vide the impugned order dated 12-7-2005. The appellant preferred the present writ appeal and obtained stay order. This is a case where the management is bent upon removing the respondent from service by adopting improper means. Though the Division Bench had specifically indicated to hold an enquiry, the Management without holding an enquiry removed the respondent from service. In the circumstances, the learned Single Judge of this Court in Y.N. Krishna Murthy's (3) case, gave a quietus to the matter by allowing the writ petition in its entirety and directing the respondent to be reinstated with full back wages and continuity of service and consequential benefits in accordance with law. The very fact that the appellant slept over the matter for over four years would show that they had properly understood the order made by the learned Single Judge in Y.N. Krishna Murthy's (3) case. But unfortunately, the appellant sought to revoke for reopening the matter once again by issue of the impugned notice dated 14-2-2005. Apart from there being an inordinate delay in initiating action, it would also reflect upon the conduct of the appellant-employer. The initiation of action by issue of the impugned show-cause notice is clearly motivated and the Management has tried to over reach the Court orders. Under the circumstances, therefore, the learned Single Judge has relied upon the delay factor reflecting upon the conduct of the Management and interfered with the impugned show-cause notice, which in the circumstances of the case, cannot be said to be either illegal or improper. The approach of the learned Single Judge in the facts and circumstances of the case cannot be found fault with. This is a case where the delay was patent on the face of the record and it ought to have been explained by the appellant and in the circumstances, therefore, when the same has not been explained by the appellant, the learned Single Judge rightly found the Management guilty of delay and laches and interfered with the impugned show-cause notice. In fact, the respondent-employee has undergone sufficient trauma and agony all these years and there was absolutely no occasion for the appellant to have reopened the matter once again, when the same has been given a quietus of the learned Single Judge in Y.N, Krishna Murthy's (3) case. Even otherwise, the impugned show-cause notice in respect of the past acts in respect of which, he has already been punished was clearly untenable, as a person cannot be vexed twice. The conduct of the Management in not holding a detailed enquiry inspite of specific direction being given by the Division Bench would show that this is nothing, but a case of victimisation of the employee. The technical argument canvassed or urged on behalf of the appellant is wholly untenable in view of the delay being patent on the face of the record. Hence, the impugned order made by the learned Single Judge warrants no interference in the appeal.
8. In support of his submissions, the learned Counsel for the respondent has placed reliance upon the following decisions:
I. Regarding delay in issuing the charge-sheet:
a. State of Madhya Pradesh v. Bani Singh and Anr. : 1990CriLJ1315 ;
b. State of Andhra Pradesh v. N. Radhakishan : [1998]2SCR693 ;
c. N. Krishna Murthy v. Syndicate Bank, Manipal, Dakshina Kannada and Ors. : (2001)IIILLJ363Kant ;
d. N.B. Kulkarni v. Life Insurance Corporation of India, Bombay and Ors. : ILR1999KAR2677 ;
e. P.V. Mahadevan v. Managing Director, Tamil Nadu Housing Board : (2005)IIILLJ527SC .
II. Regarding vague charges:
a. Management of the Northern Railway Co-operative Credit Society Limited, Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur and Anr. : (1967)IILLJ46SC ;
b. Transport Commissioner, Madras-5 v. A. Radha Krishna Moorthy : (1995)1SCC332 ;
c. G.V. Aswathanarayana v. Central Bank of India, Bombay and Ors. : (2004)ILLJ36Kant ;
d. Surath Chandra Chakravarty v. State of West Bengal : (1971)ILLJ293SC ;
e. Sawai Singh v. State of Rajasthan : (1986)IILLJ390SC .
III. Regarding double jeopardy:
a. State of Assam and Anr. v. J.N. Roy Biswas : (1976)IILLJ17SC ;
b. A. Gopala Rao v. The Post Master General, Andhra Circle, Hyderabad 1979(2) SLR 370.
IV. Regarding liberty no availed within time:
a. G.V. Aswathanarayan v. The Zonal Manager and Appellate Authority, Central Bank of India, Hyderabad and Ors. : ILR2004KAR298 .V. Regarding bias:
a. S. Parthasarathi v. State of Andhra Pradesh : (1973)IILLJ473SC .VI. Regarding victimisation:a. L. Michael and Anr. v. Mis, Johnson Pumps Limited : (1975)ILLJ262SC .
9. The question for consideration is whether the learned Single Judge was right in interfering with the impugned show-cause notice dated 14-2-2005 of the appellant-employer to the respondent-employee?
10. It is now well-settled that unless the Court is satisfied that the show-cause notice is totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petition should not be entertained for mere asking of and as a matter of routine and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. In the instant case, the show-cause notice was sought to be challenged by the writ petitioner primarily on the ground that the show-cause notice refers to certain omissions and commissions on the part of the writ petitioner alleged to have been committed during the years 1992-93 and the very charges were subjected to judicial scrutiny in the earlier proceedings reaching the Division Bench of this Court and that though the Division Bench had granted liberty, which according to the writ petitioner was exercised on an earlier occasion and that the same was unsuccessfully exercised in Y.N. Krishna Murthy's (3) case, in terms of the order dated 6-10-2001 and that this Court in the 2nd Writ Petition (Y.N. Krishna Murthy's (3) case), did not reserve any liberty to the appellant/employer and that therefore the employer is wrong in continuing the proceedings. It was also pointed out on behalf of the writ petitioner before the learned Single Judge that repeated issuance of notice on the same cause of action despite Court orders would be nothing but an act of victimisation. This is very clear from paragraph 6 of the impugned order wherein the learned Single Judge has recorded the contentions urged on behalf of the writ petitioner.
But these contentions did not appear to have created much impact upon the learned Single Judge or did not weigh with the learned Single Judge. In fact the learned Single Judge himself has observed in the impugned order that the employer has every right to initiate disciplinary proceedings against an erring employee and there cannot be any two opinions on this aspect. Having so noticed the rights of an employer, the learned Single Judge has however proceeded to interfere with the impugned show-cause notice on account of delay and laches on the part of the appellant-employer in initiating action against the respondent. Admittedly, no such ground of delay and laches on the part of the appellant-employer was either pleaded in the writ petition or urged on behalf of the writ petitioner at the time of the arguments before the learned Single Judge. According to the learned Single Judge, the delay in initiating action against the respondent is fatal to the case on hand. The delay on the part of the employer in initiating action against the writ petitioner was not a ground taken by the writ petitioner and there was absolutely no opportunity for the appellant-employer to meet such ground. The factor with regard to the delay in initiating the disciplinary action against an employee depends upon the facts and circumstances of each case. Admittedly in the case on hand, no such ground was taken by the writ petitioner before the learned Single Judge and hence there was absolutely no occasion or opportunity for the appellant to explain the factum of delay in the matter of initiating action against the respondent. It is also not known as to how the writ petitioner had been prejudiced by any such delay on the part of the employer in initiating action against him to find out the suitability or otherwise to continue in the post. Admittedly, the writ petitioner was appointed by the appellant on contract basis for a period of 3 years in terms of letter dated 21-8-1987 and the terms of the said letter clearly indicated that for the said period, the respondent would be on probation, which is liable to be extended at the discretion of the appellant from time to time and the respondent shall continue to be on probation even after 3 years until his services were confirmed to the post.
It is equally not in dispute that by an order made on 1-10-1993, the period of probation of the respondent was extended upto 31-3-1994. There is nothing on record to show that the respondent was at any time confirmed to the post. That is to say, there is nothing on record to show that the respondent was found suitable to the post and the same has been confirmed at any time by the employer. On the other hand, the respondent was found to be unsuitable to the post and was sought to be discharged. But the order of discharge being found to be punitive in nature by the Division Bench of this Court, the appellant was directed to comply with the principles of natural justice before discharging the respondent from service. Be that as it may. But the fact of the matter is that the respondent was at no time found suitable to the post which he was holding and he has not been confirmed at any time to the said post. In the fact situation, can it be said that the mere delay in seeking to find out the suitability or otherwise of an employee to the post could be fatal. The answer to this, in our view, must necessarily be in the negative. When the respondent has no right to the post, how such initiation of action would prejudice him. On the other hand it would, in the facts and circumstances of the case, would prejudice the interest of an employer to continue to bear with an employee who according to the employer is not at all suitable to the post which he has holding.
It is now well-settled that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. When the factual scenario of the present case is considered in the background of the above settled legal principles, the inevitable conclusion is that the learned Single Judge was not justified in interfering with the show-cause notice issued by the appellant to the respondent. It is needless to point out that many a times the enquiries will be fact finding preceded by issue of a show-cause notice in order to find out whether an employee is or is not suitable to the post and whether the matter needs to be proceeded further to initiate disciplinary enquiry against an employee. This is yet to be known because the matter was still at the stage of issue of a show-cause notice and it did not proceed further when the writ petition was filed by the writ petitioner challenging the show-cause notice issued by the employer. We are unable to accept the contention advanced on behalf of the respondent that in the earlier writ petition decided by the learned Single Judge in Y.N. Krishna Murthy's (3) case, the learned Single Judge gave a quietus to the disciplinary action to be initiated by the appellant against the respondent. We say so for more than one reason. Firstly, there cannot be any such immunity given to an employee from initiating any action against him by an employer for all the time to come. The right of an employer to initiate action against an employee cannot be taken away by Court for all time to come.
What was actually set aside by the learned Single Judge in the earlier writ petition was the order of discharge passed against the respondent without holding an enquiry and the learned Single Judge did not concede the request made by the employer to remit the matter to the Appellate Authority (Board). The charges levelled against the respondent were never tested either by the learned Single Judge or by the Division Bench on the earlier occasion and hence giving a quietus to the charges alleged against the respondent did not arise. The said charges cannot found to form a basis for removal of an employee from office as the same would amount to punitive in nature and not a termination simpliciter of a probationer or a temporary employee. But at the same time, the said charges could not come in the way of determining the suitability or otherwise of a probationer or a temporary employee to be continued in the post which he was holding. Even the learned Single Judge knew this position of law and obviously for the said reason, he did not in the present writ petition quash the impugned show-cause notice on the ground that no enquiry could be initiated on the charges mentioned therein, but he interfered with the show-cause notice only on the ground of delay and laches on the part of the employer in initiating action against an employee. Therefore we are unable to accept the contention of the learned Counsel for the respondent that the respondent-employee had been given a clean chit of all such charges levelled against him and that he enjoyed an immunity from such charges for all time to come. That apart, it has to be pointed out that impugned show-cause notice makes reference to some omissions and commissions which were subsequent to the date of the earlier order. We are therefore of the view that in the facts and circumstances of the case on hand, there was absolutely no occasion for the learned Single Judge to have interrupted the proceedings at the stage of the issuance of the show-cause notice itself.
The Hon'ble Supreme Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find out actual facts with the participation and in the presence of the parties. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. When the show-cause notice is challenged, the Court should be careful to see that the statutory functionaries specially and specifically constituted for the purpose or an employer are not denuded of powers and authority to initially decide the matter and ensure that ultimately relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection granted. In the instant case, as we have already stated though the learned Single Judge was fully aware of this position of law, but yet he proceeded to interfere with the show-cause notice on a ground which was not at all taken by the writ petitioner and which was totally extraneous and irrelevant to the question in issue. The appellant-employer is right in contending that the point on which the writ petition has been accepted by the learned Single Judge was neither pleaded nor urged by the writ petitioner. The parties were not at issue on the point decided by the learned Single Judge. In fact the appellant-employer would contend that such show-cause notice was issued preceding a fact finding enquiry in order to find out or to ascertain the suitability or otherwise of the respondent to the post which he was holding. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court relied upon by the learned Counsel for the appellant in the case of V.K. Majotra's case, wherein it is held as under:
8. We have perused the pleadings of the writ petition and the counter-affidavits filed by the respondents before the High Court. Counsels for the parties are right in submitting that the point on which the writ petition has been disposed of was not raised by the parties in their pleadings. The parties were not at issue on the point decided by the High Court. Counsels for the parties are also right in contending that the point raised in the writ petition was neither adverted to nor adjudicated upon by the High Court. It is also correct that vires of Section 6(2)(b), (bb) and (c) of the Act were not challenged in the writ petition. The effect of the direction issued by the High Court that henceforth the appointment to the post of Vice-Chairman be made only from amongst the sitting or retired High Court Judge or an Advocate qualified to be appointed as a Judge of the High Court would be that Sections 6(2)(b), (bb) and (c) of the Act providing for recruitment to the post of Vice-Chairman from amongst the administrative services have been put at naught/obliterated from the statute book without striking them down as no appointment from amongst the categories mentioned clauses (b), (bb) and (c) could now be made. So long as Section 6(2)(b), (bb) and (c) remains on the statute book such a direction could not be issued by the High Court. With respect to the learned Judges of the High Court we would say that the learned Judges have over stepped their jurisdiction in giving a direction beyond the pleadings or the points raised by the parties during the course of the arguments. The writ Courts would be well-advised to decide the petitions on the points raised in the petition and if in a case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to the notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise. We leave the discussion here.
9. We are also in agreement with the submissions made by the Counsel for the appellants that the High Court exceeded its jurisdiction in issuing further directions to the Secretary, Law Department, Union of India, the Secretary, Personnel and Appointment Department, Union of India, the Cabinet Secretary of Union of India and to the Chief Secretary of the Uttar Pradesh Government as also to the Chairman of the CAT and other appropriate authorities that henceforth the appointment to the post of presiding officer of various other Tribunals such as CEGAT, Board of Revenue, Income-tax Appellate Tribunal etc., should be from amongst the judicial members alone. Such a finding could not be recorded without appropriate pleadings and notifying the concerned and affected parties.
The above observations of the Apex Court are aptly applicable to the case at hand, more so, when the factual situation as discussed above would show that the respondent-employee is yet to be confirmed to the post. Moreover, mere continuance of a temporary employee for years would not entitle him to claim status of permanency. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of Chandra Prakash Shahi v. State of Uttar Pradesh and Ors. : AIR2000SC1816 wherein it is held as under:
10. A perusal of the above provision would indicate that the period of probation is two years. The regulation is silent as to the maximum period beyond which the period of probation cannot be extended. In the absence of this prohibition, even if the appellant completed two years of probationary period successfully and without any blemish, his period of probation shall be treated to have been extended as a 'permanent' status can be acquired only by means of a specific order of confirmation.
11. This Court in State of Punjab v. Dharam Singh : [1968]3SCR1 , ruled out the proposition of automatic confirmation on completion of the period of probation. This Court ruled that the 'permanent' status can be acquired only by a specific order confirming the employee on the post held by him on probation. To the same effect is the decision in Pratap Singh v. Union Territory of Chandigarh : [1980]1SCR487 . In Municipal Corporation, Raipur v. Ashok Kumar Misra : (1991)IILLJ343SC , the same principles were reiterated. In view of the above, the contention that the appellant had acquired 'permanent' status cannot be accepted. His status was that of a probationer.
True, a probationer like a temporary servant or employee is also entitled to certain protection and his or her services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. But, this stage has not yet reached and it is too premature to say that the respondent had been terminated arbitrarily or in a punitive manner. This is because the action initiated by the employer by issue of the impugned show-cause notice is yet to be concluded or finalised.
11. In the case of Krishnadevaraya Education Trust and Anr. v. L.A. Balakrishna : [2001]1SCR387 the Hon'ble Supreme Court has observed as under:
5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.
6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto means that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.
12. A reference may also be made to a decision of the Apex Court in the case of Pavenendra Narayan Verma v. Sanjay Gandhi P.G.I, and Medical Sciences and Anr. : (2002)ILLJ690SC wherein it is observed as under:
32. We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catelogued above for holding that the termination was in substance punitive exist here.
13. Further, in the case of State of Haryana v. Satyender Singh Rathore : AIR2005SC4251 the Hon'ble Supreme Court has held as under:
Constitution of India, Article 311(2) -- Termination of service -- Simpliciter or punitive -- Clearly indicated in letter of appointment that services of employee being on contractual basis could be terminated at any time without assigning any reason with 24 hours notice from either side -- Reference was made to alleged misconduct of employee in order -- Misconduct referred to, was motive and not foundation -- It is case of termination simpliciter -- Does not involve civil consequences -- Principles of natural justice not required to be complied with.
14. We are therefore of the clear view that this is not a stage at which the learned Single Judge could have interfered with the matter.
15. In the case of Special Director and Anr. v. Mohd. Ghulam Chouse and Anr. : 2004(164)ELT141(SC) the Hon'ble Supreme Court has held as under:
The practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties is deprecated. Unless, the High Court is satisfied that the show-cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted. In the present case the respondent who was clearly guilty of various provisions of FERA and FEMA filed writ petition seeking quashing of show-cause notice for allegedly being illegal and also sought interim relief restraining appellant from initiating any proceeding pursuant to show-cause notice, the High Court has not indicated any reason while giving interim protection. Though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which has weighed with it in granting such an extraordinary relief in the form of an interim protection.
16. Similar is the view taken by the Apex Court in the case of Malladi Drugs and Pharma Limited v. Union of India and Anr. : 2004(166)ELT153(SC) , wherein, it is observed as under:
Even otherwise, in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice. We see no reason to interfere.
17. In the light of the above decisions and on the facts and in the circumstances of the case, we are of the clear view that the learned Single Judge ought not to have interfered with the show-cause notice issued by the appellant-employer to the respondent-employee, and on the other hand, he ought to have directed the respondent to offer his explanation to the show-cause notice and in the event of any adverse order passed against him, to have approached the Competent Authority.
18. We have carefully perused the decisions relied upon by the learned Counsel for the respondent and we find that the principles enunciated in those decisions have no application to the facts and circumstances of the case on hand. In fact, the principles enunciated in the decisions relied upon by the learned Counsels for the parties were kept in mind, while dealing with the facts and circumstances of the case on hand and we find that the decisions relied upon by the learned Counsel for the respondent have absolutely no application to the facts and circumstances of the case on hand. Therefore, there is no need to make reference to each of those decisions relied upon by the learned Counsel for the respondent. Suffice it to say that the principles enunciated therein have no application to the facts and circumstances of this case.
19. In the result, this writ appeal filed by the appellant is allowed. The impugned order made by the learned Single Judge is hereby set aside. The respondent is hereby directed to offer his explanation to the show-cause notice, if he has not yet offered his explanation to the same and in case any adverse order passed against him, liberty is granted to approach the Competent Authority. All the contentions of the parties are kept open to be urged at an appropriate stage of the enquiry. There is no expression on the merits of the case and whatever observations made herein are restricted to the present proceedings. They should not in any way influence either the Enquiry Officer or the employer in holding enquiry and passing an appropriate order in accordance with law. We however hasten to add that we are not expressing any opinion on the merits of the matter and it is open to the parties to advance their respective contentions in the course of enquiry. The writ appeal is accordingly allowed with the above observations. But, in the circumstances of the case, there is no order as to costs.