Judgment:
V. Ramasubramanian, J.
1. The appellant, whose challenge to an order of termination was rejected by the learned Judge in the writ petition, is before us in this appeal.
2. The facts leading to the above appeal are as follows:
a) The appellant was appointed as a Faculty in Economics in the 1st respondent institute in July 1989 and after completion of probation, he executed an agreement to serve the Institute for 2 years. In 1992 he was sent for a training programme to U.K., and after his return, he executed another agreement to serve the Institute for a period of 3 years.
b) On 17-11-1994, he applied for earned leave for 7 days on the ground that his mother was sick. But subsequently, the leave was sought to be extended from 13-12-1994 till 12-1-1995 on the ground that his sister and brother-in-law were involved in an accident. But the Institute sanctioned leave only upto 31-12-1994 and advised him to join duty on 2-1-1995 on the ground that he was required to complete a research assignment expeditiously.
c) Since he did not join duty on 2-1-1995, a telegram was sent advising him to report for duty and also pointing out that his absence from 2-1-1995 was unauthorized and that disciplinary proceedings might be initiated against him if he failed to join duty.
d) However the appellant again submitted an application for extension of leave from on 9-1-1995 for 60 days with effect from 1-1-1995 and the same was also rejected by a letter dated 30-1-1995 citing pressing exigencies of official work. But the appellant sent a leave letter on 2-3-1995 seeking extension of leave by 1 month on the ground that he was not well. The said request was also turned down.
e) Thereafter, there was no communication from the appellant and hence the 1st respondent Institute sent a letter dated 8-8-1995 by registered post calling upon the appellant to report for duty by 16-8-1995. Since there was no sign of the appellant joining duty, the 1st respondent discharged the appellant by a letter dated 25-8-1995. Both these letters returned undelivered with the endorsement 'door locked'. Therefore by a Newspaper publication dated 18-11-1995, the appellant was informed of his discharge from service.
f) Upon seeing the paper publication, the appellant filed the writ petition W.P. No. 5259 of 1996 challenging the order of termination, primarily on the ground that no enquiry preceded the order of termination and that therefore it was liable to be set aside.
3. The learned Judge, after considering the rival contentions, invoked the principle of 'useless formality' and held that an enquiry would not have really altered the outcome and that it was the appellant's own making. Consequently, the learned Judge upheld the order of termination.
4. Assailing the said order of the learned Judge, Mr. R. Yashod Vardhan, the learned Counsel appearing for the appellant contended that the principle of 'useless formality' cannot be invoked in the facts and circumstances of the present case and that if an enquiry had been conducted, the appellant would have easily established that he had valid reasons for his absence and that the failure to hold an enquiry, resulted in a grave injustice being meted out to the appellant. It is the contention of the learned Counsel for the appellant that originally the appellant applied for earned leave on 17-11-1994 and the same was sanctioned. Subsequently, there were some mishaps in the family followed by his mother's sickness and his own ill-health, forcing him to seek extension of leave from time to time and that if an enquiry had been conducted, he would have convinced the disciplinary authority not to impose the penalty of dismissal from service. In other words, according to the learned Counsel, the conduct of an enquiry would have changed the entire complexion of the game and hence the invocation of the principle of useless formality by the learned Judge was erroneous.
5. In support of his contentions, the learned Counsel for the appellant relied upon the judgments of the Apex court in (1) State Bank of Patiala and Ors v. S.K. Sharma : (1996)IILLJ296SC (2) Uptron India Ltd v. Shammi Bhan and Anr. : [1998]1SCR719 (3) Union of India and Ors. v. Dinanath Shantaram Karekar and Ors. : (1998)IILLJ748SC (4) Aligarh Muslim University and Ors. v. Mansoor Ali Khan : AIR2000SC2783 and (5) Bhagwan Lal Arya v. Commissioner of Police, Delhi : AIR2004SC2131 .
6. The learned Counsel appearing for the 1st respondent contended that the repeated directions issued by the 1st respondent to the appellant to join duty did not evoke any positive response and that therefore they had no alternative except to discharge the appellant from service in accordance with the Conduct and Discipline Rules of the Institute. Moreover, the appellant was deputed for a training programme in United Kingdom in 1992 and after the completion of the training, he was supposed to serve the Institute for 3 years, failing which, he was required to reimburse the entire expenses incurred by the Institute for imparting such training. The action of the appellant in proceeding on leave, without completing the contractual obligations and his defiance in not reporting for duty, are all his own creations in order to get over the contractual obligations. Therefore, the learned Counsel for the 1st respondent pleaded that the appellant deserved no sympathy.
7. If we swift through the pleadings of both the parties and the correspondence that they had between them, it is clear that to begin with, the management not only sanctioned earned leave for 7 days from 18-11-1994 but also permitted encashment of earned leave. When he applied for leave from 13-12-1994 to 12-1-1995, on the ground that his sister and brother-in-law were involved in an accident, it was partly sanctioned upto 31-12-1994, by a letter dated 23-12-1994 and he was directed to report for duty on 2-1-1995, on the ground that his research assignment had to be completed expeditiously. Along with the said communication, a demand draft for an amount representing the encashment of earned leave for 31 days was also sent to him. Though the appellant received the said communication on 31-12-1994 as seen from the postal acknowledgment, he neither sent a reply nor reported for duty. Therefore a telegram was sent to him on 5-1-1995 asking him to report for duty forthwith. But he sent a letter dated 9-1-1995 seeking extension of leave for 60 days from 1-1-1995. This request was rejected by a letter dated 30-1-1995 and he was asked to report for duty immediately. But the appellant did not relent and went on to submit a leave letter on 2-3-1995 seeking extension of leave by one more month. Even according to the appellant, he did not send any communication to the Institute after his letter dated 2-3-1995, for about 8 months and sent his last letter only on 3-11-1995, by which time, the curtain was already drawn.
8. The above facts clearly establish that (i) in spite of repeated instructions, the appellant failed, rather refused, to report for duty for a period of nearly 8 months, from January to August 1995 and (ii) that after 2-3-1995, till August 1995, he did not even communicate with his employer, for one reason or the other. His conduct, during this period of about 8 months, which also incidentally happened to be a period when the bond executed by him was in force, does not inspire either the confidence or the sympathy of this Court. Therefore the inference drawn by the learned Judge that he was not interested in the job and that he had created a situation whereby he could escape his contractual obligations, appears to be not only reasonable but also inevitable. Consequently, the invocation of the theory of useless formality by the learned Judge, cannot be found fault with, especially in the light of the fact that the appellant was employed in a responsible position as a Faculty member for research projects.
9. Coming to the legal aspects canvassed by the learned Counsel for the appellant, it is seen that they revolve around violation of the principles of natural justice. Even at the outset, we are not impressed with the said argument, since in our opinion, 'principles of natural justice is for thoroughbred horses and not wild horses'. Wild horses understand only the language of the whip and hence there is no use trying to tame them with persuasion. The principles of natural justice themselves have traversed a long way from the stage at which they were treated as a 'tharaka manthra' or panacea for all diseases, to the present stage where the courts have started looking at the credentials of the person using them as a shield or sword and accepting the fact that they are not indispensable.
10. In State Bank of Patiala and Ors. v. S.K. Sharma : (1996)IILLJ296SC , relied on by the learned Counsel for the appellant, the Supreme Court made a distinction between a 'total violation of natural justice' and 'a mere violation of a facet of the rule'. In other words, a distinction was made between 'no opportunity' and 'no adequate opportunity' and between 'no notice/no hearing' and 'no fair hearing'. In cases falling under the former category, the Supreme court held that the order would be undoubtedly invalid. But in our considered view, the said judgment has no application to the facts of the present case, since, the case before the Supreme Court arose out of disciplinary proceedings initiated against an employee of a Bank on charges of misappropriation. By the order of removal from service passed against him, in pursuance of disciplinary proceedings, the future of the employee was completely sealed and hence while dealing with his challenge, the Apex court laid down the law as to what would constitute total violation and what constituted only a partial violation. But in this case, the 1st respondent did not initiate any disciplinary proceedings before discharging the appellant from service. Therefore, the appellant cannot project violation of the principles of natural justice, when the order of discharge was not passed in pursuance of disciplinary proceedings.
11. In Uptron India Ltd v. Shammi Bhan and Anr. : [1998]1SCR719 relied on by the learned Counsel for the appellant, the Supreme court held in para 25 that any clause in certified Standing Orders providing for automatic termination of services of a permanent employee not directly related to production in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee. The said judgment is also not useful to the appellant, due to the following reasons:
(i) the case before the Supreme Court related to an industrial worker who can never be treated on par with a Faculty member involved in research, like the appellant
(ii) in the case before the Supreme Court, a lady employee who went on maternity leave, overstayed her leave and the management terminated her services within 3 months of overstayal of leave. In the case on hand, repeated instructions of the employer to the appellant to report for duty, was defied for over 8 months.
(iii) More over, the words 'not directly related to production in a factory or industrial establishment' used by the Supreme Court in para 25 of the said judgment appears to have some significance, in the sense that the protection afforded under the said judgment was not considered to be of universal application.
12. The decision in Union of India and Ors. v. Dinanath Shantaram Karekar and Ors. : (1998)IILLJ748SC , is relied upon by the learned Counsel for the appellant, for 2 propositions, namely (i) that when a communication sent to an employee returned on account of the addressee not being available even to the postal authorities, it cannot be legally treated to have been served on him and (ii) that when service of a notice is sought to be effected by publication in the Newspaper without making an earlier effort to serve him personally, there is no proper service. But the said judgment also does not go to the rescue of the appellant on account of the following admitted facts:
a) While proceeding on leave in the first spell from 18-11-1994, the appellant gave an address at Salem where he could be contacted. He confirmed the said address at Salem while applying for the second spell of leave in his leave application dated 16-12-1994. He received the communication of the employer dated 23-12-1994 sanctioning leave only upto 31-12-1994 along with demand draft for the leave encashment amount, at his Salem address. But by a subsequent leave application dated 9-1-1995, he intimated his return to Chennai and gave his address at Chennai where he had his residence. Therefore the next letter dated 30-1-1995 rejecting his subsequent leave application was sent to his residential address at Chennai and it was received by him. Thereafter, the last of the communications was sent by the appellant by Fax on 2-3-1995 which did not indicate any change of address. Therefore, the instructions given by the appellant in his previous letter dated 9-1-1995 to communicate to his residential address at Chennai remained in tact and consequently, the employer sent the communications dated 8-8-1995 and 25-8-1995 to his residential address by registered post. When these letters returned with the postal endorsement 'door locked', the 1st respondent Institute sent the copies of these letters along with a covering letter dated 22-9-1995. The messenger who carried these letters in person, visited the residential address of the appellant on 23rd and 25th of November 1995 and returned empty handed after finding the door locked. It is only thereafter that the Institute chose to publish a Notice in the newspapers, which they did in The Hindu and Dina Thanthi in their Chennai editions dated 18-11-1995. Thus the 1st respondent Institute exhausted all avenues of service and went for paper publication only as a last resort.
b) Moreover the Newspapers in which the publications were made in this case, are the most popular and widely circulated dailies in Chennai, unlike in the case before the Supreme Court, where the Supreme court found no evidence on record relating to the circulation of the Newspaper in which the order of dismissal was published in that case.
Therefore, the citation relied upon by the learned Counsel is of no use to him.
13. The judgment in Aligarh Muslim University and Ors. v. Mansoor Ali Khan : AIR2000SC2783 is relied upon by the counsel for the appellant, for the proposition that 'useless formality theory is an exception' and that in must be applied only in cases where there are 'admitted and indisputable facts leading only to one conclusion'. According to the learned Counsel for the appellant, this case does not fall under the said exception. But we are unable to appreciate the said contention. The appellant was sanctioned leave for the first spell from 18-11-1994 to 24-11-1994 without any demur by the management. The second spell from 13-12-1994 to 12-1-1995 was partially sanctioned upto 31-12-1994 and the appellant was directed to report for duty on 2-1-1995 on account of pressing research assignments. But he defied the said order and continued to send leave letters till 2-3-1995. The reasons stated in the leave letters also kept changing. While the initial spell of leave was on account of his mother's ill health, the second spell was on account of an accident in which his sister was involved. The reasons cited for the subsequent spells of leave upto 2-3-1995 were, his mother's ill health, his mental upset and his own ill-health. After 2-3-1995, no leave application was made till 3-11-1995 and the leave application made on 3-11-1995 (after discharge from service) also cited 'domestic problems'. Therefore it is clear from the above sequence of events that the appellant was never willing to rejoin duty and an enquiry would not have changed the scenario. As observed by the Supreme court in para 26 of the aforesaid judgment in Aligarh Muslim University case, the appellant was put on notice that his leave was sanctioned only upto a particular date and that he would be discharged from service if he did not join duty. Despite such repeated warnings, the appellant chose to prioritize his 'domestic problems' over his 'professional commitments' to the Institute. Therefore his case fell under the exception pointed out in Mansoor Ali Khan's case.
14. Lastly, the judgment relied upon by the learned Counsel in Bhagwan Lal Arya v. Commissioner of Police, Delhi : AIR2004SC2131 , also does not save his sinking boat. That case before the Supreme Court, was a case where the employee was under medical treatment as evidenced by the certificates issued by Government Doctors and the leave applied for, was also sanctioned. After sanctioning leave, he was issued with a charge memo and eventually dismissed after enquiry. Therefore the Supreme court held that the absence of the employee on medical grounds did not amount to grave misconduct warranting dismissal from service, especially in view of the fact that his entire leave was sanctioned. But the case on hand is not so simple. The reasons for leave varied from time to time and it was also refused to be sanctioned.
15. Thus all the grounds raised by the learned Counsel for the appellant are untenable and we find no merit in the appeal. Consequently the appeal is dismissed. No costs.