N. Raji Reddy Vs. the Warangal District Co-op. Central Bank Ltd. and ors. - Court Judgment

Excerpt:
labour and industrial - removal order - andhra pradesh shops and establishments act and rule 19 (1) of andhra pradesh shops and establishments rules - disciplinary action initiated against petitioner on ground that he was habitual absentee - ex-parte enquiry conducted and order of removal passed against petitioner - order of removal challenged - no personal notice issued to petitioner - principles of natural justice violated - held, order of removal set aside. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.orderb. subhashan reddy, j.1. writ petition no. 15762 of 1987 is filed against an order of removal of the petitioner, which was notified in a local news paper'warangal vani' dated february 13, 1987. the petitioner was appointed as a paid secretary in the warangal district co-operative centralbank limited on june 8, 1977. on january 4, 1986 a person - incharge was appointed as the term of the elected managing committee had expired. disciplinary action was initiated against the petitioner on the ground that he was a habitual absentee. on september 29, 1986, a charge memo was issued calling upon the petitioner to answer the same. but the same was not addressed to him personally and it is admitted by the respondents that the same has not been served on the petitioner. the only mode of communication was displaying the said charge memo on the notice board of the office of the above bank as also on the notice board of the concerned gram panchayat; in consequence, the petitioner could not present himself and could not participate in the enquiry. ex parte enquiry was conducted by the disciplinary authority and orders of removal were passed on november 18, 1986. the same was sent by registered post on three different addresses to the petitioner and in addition was also published in the local news paper 'warangal vani' dated february 13, 1987. the petitioner on coming to know of the same, preferred an appeal before the collector, but thereto it was confirmed by orders dated september 15, 1987. the result is this writ petition.2. while mr. l. narasimha reddy, the learned counsel for the petitioner, complains that there is a violation of principles of natural justice as the show cause notice containing charges were not at ail communicated to the petitioner and that entire proceedings are vitiated because of the violation of the principles of natural justice, mr. p.v. narayana rao, the learned counsel for the respondents defends the impugned orders citing rule 19 of a.p. shops and establishments rules. rule 19(1)(f) of the said rules states that habitual absence without leave is a misconduct and under rule 19(2) of the said rules, every employer has to display or cause to be displayed near the entrance or at the conspicuous place of establishment, a copy of the list of acts and omissions specified under sub-rule (1) of rule 19 of the said rules. so far as this aspect is concerned, there is a compliance by the disciplinary authority in displaying the alleged misconduct of the petitioner on the notice board of the above bank and also the grampanchayat. but, this alone cannot be treated as sufficient as the disciplinary enquiry leading to the removal of the petitioner resulted in civil consequences, therefore, a personal notice and also enquiry was necessary. if the delinquent is served with a personal notice and he chooses not to reply or not to participate in the enquiry, then the disciplinary authority cannot be found fault with. but, here is a case where, admittedly, no personal notice was issued to the petitioner and as it resulted in civil consequences, there is a glaring violation of principles of natural justice. i cannot accept the argument of mr. p.v.naray-ana rao, the learned counsel forthe respondents that under the rules, which have been cited and stated supra, personal notice is not required. even if the rules are silent with regard to personal notice, in a case of this nature, a personal notice is a must and if the same has not been issued and served, there will be infraction of principles of natural justice. for that reason, the orders of the 3rd respondent dated november 18, 1986 and confirmed in appeal no. 1875/87-d, dated september 15, 1987 by the district collector, warangal are set aside. this order shall not preclude the authorities concerned from initiating the enquiry afresh. inasmuch as the petitioner had been continuing, even though as a fresh appointee, it shall be deemed that he had been continuing in service without any break as if the order of removal has not been passed for the reasons mentioned above. it is needless to mention that the petitioner shall be entitled to all the attendant benefits.3. coming to writ petition no. 9821 of 1989, i do not concur with the argument of mr. l.narasimha reddy, the learned counsel for the petitioner, that the 1st respondent is not the authority for appointment, that the 2nd respondent is the authority for appointment and that re-appointment of the petitioner made on october 1, 1988 cannot be a matter of scrutiny by the 1st respondent. bye-law 3 of the special bye-laws relating to service conditions of employees of primary agriculture credit societies, makes it very clear that a panel has to be sent by the district level committee and out of the said panel only the primary agriculture credit society can select and appoint one of the candidates. indisputably, the said procedure has not beenfollowed in the instant case. as such, i cannot take cognizance of the re- appointment of the petitioner by the 2nd respondent with effect from october 1, 1988. in any event, in view of the relief granted in writ petition no. 15762 of 1987 and as the order of removal has becomenon est, there is no significance attached to the reappointment of the petitioner on october 1, 1988.4. these two writ petitions are disposed of accordingly. no order as to costs.

Judgment:
ORDER

B. Subhashan Reddy, J.

1. Writ Petition No. 15762 of 1987 is filed against an order of removal of the petitioner, which was notified in a local news paper'Warangal Vani' dated February 13, 1987. The petitioner was appointed as a Paid Secretary in the Warangal District Co-operative CentralBank Limited on June 8, 1977. On January 4, 1986 a person - incharge was appointed as the term of the elected Managing Committee had expired. Disciplinary action was initiated against the petitioner on the ground that he was a habitual absentee. On September 29, 1986, a charge memo was issued calling upon the petitioner to answer the same. But the same was not addressed to him personally and it is admitted by the respondents that the same has not been served on the petitioner. The only mode of communication was displaying the said charge memo on the notice board of the office of the above Bank as also on the notice board of the concerned Gram Panchayat; in consequence, the petitioner could not present himself and could not participate in the enquiry. Ex parte enquiry was conducted by the disciplinary authority and orders of removal were passed on November 18, 1986. The same was sent by registered post on three different addresses to the petitioner and in addition was also published in the local news paper 'Warangal Vani' dated February 13, 1987. The petitioner on coming to know of the same, preferred an appeal before the Collector, but thereto it was confirmed by orders dated September 15, 1987. The result is this writ petition.

2. While Mr. L. Narasimha Reddy, the learned Counsel for the petitioner, complains that there is a violation of principles of natural justice as the show cause notice containing charges were not at ail communicated to the petitioner and that entire proceedings are vitiated because of the violation of the principles of natural justice, Mr. P.V. Narayana Rao, the learned Counsel for the respondents defends the impugned orders citing Rule 19 of A.P. Shops and Establishments Rules. Rule 19(1)(f) of the said Rules states that habitual absence without leave is a misconduct and under Rule 19(2) of the said Rules, every employer has to display or cause to be displayed near the entrance or at the conspicuous place of establishment, a copy of the list of acts and omissions specified under Sub-rule (1) of Rule 19 of the said Rules. So far as this aspect is concerned, there is a compliance by the disciplinary authority in displaying the alleged misconduct of the petitioner on the notice board of the above Bank and also the GramPanchayat. But, this alone cannot be treated as sufficient as the disciplinary enquiry leading to the removal of the petitioner resulted in civil consequences, therefore, a personal notice and also enquiry was necessary. If the delinquent is served with a personal notice and he chooses not to reply or not to participate in the enquiry, then the disciplinary authority cannot be found fault with. But, here is a case where, admittedly, no personal notice was issued to the petitioner and as it resulted in civil consequences, there is a glaring violation of principles of natural justice. I cannot accept the argument of Mr. P.V.Naray-ana Rao, the learned Counsel forthe respondents that under the Rules, which have been cited and stated supra, personal notice is not required. Even if the Rules are silent with regard to personal notice, in a case of this nature, a personal notice is a must and if the same has not been issued and served, there will be infraction of principles of natural justice. For that reason, the orders of the 3rd respondent dated November 18, 1986 and confirmed in Appeal No. 1875/87-D, dated September 15, 1987 by the District Collector, Warangal are set aside. This order shall not preclude the authorities concerned from initiating the enquiry afresh. Inasmuch as the petitioner had been continuing, even though as a fresh appointee, it shall be deemed that he had been continuing in service without any break as if the order of removal has not been passed for the reasons mentioned above. It is needless to mention that the petitioner shall be entitled to all the attendant benefits.

3. Coming to Writ Petition No. 9821 of 1989, I do not concur with the argument of Mr. L.Narasimha Reddy, the learned Counsel for the petitioner, that the 1st respondent is not the authority for appointment, that the 2nd respondent is the authority for appointment and that re-appointment of the petitioner made on October 1, 1988 cannot be a matter of scrutiny by the 1st respondent. Bye-law 3 of the Special Bye-laws relating to Service Conditions of Employees of Primary Agriculture Credit Societies, makes it very clear that a panel has to be sent by the District level Committee and out of the said panel only the Primary Agriculture Credit Society can select and appoint one of the candidates. Indisputably, the said procedure has not beenfollowed in the instant case. As such, I cannot take cognizance of the re- appointment of the petitioner by the 2nd respondent with effect from October 1, 1988. In any event, in view of the relief granted in Writ Petition No. 15762 of 1987 and as the order of removal has becomenon est, there is no significance attached to the reappointment of the petitioner on October 1, 1988.

4. These two Writ Petitions are disposed of accordingly. No order as to costs.