'Subverting Rules Of Natural Justice': Calcutta HC Quashes Visva-Bharati University Order Discontinuing Service Of Casual Labourer

The Calcutta High Court on Thursday set aside an order passed by the Registrar (Acting) of Visva-Bharati University discontinuing the services of a casual labourer on the ground of breach of the principles of natural justice.

Justice Moushumi Bhattacharya ordered, 

"The facts in the present case do not justify the impugned action. It is vigilante-justice without the factual bulwark to support it. This Court, being equally in the dark (as the petitioner) on the material forming the basis of the charge and the perceived exigency, is therefore unable to accept that the University had good grounds to summarily discontinue the services of the petitioner."

Highlighting the need to preserve the principles of natural justice in order to protect constitutional ethos, the Court underscored, 

"Fair play in action is the law's most recognizable face, it evens the scales of injustice and strengthens its moral core. Subverting the rules of natural justice unsettles the very bedrock on which laws are built and shakes the constitutional foundation of equal protection of the laws. Attractive as it may sound, rough and ready justice serves only those who mete it out and not the person at the receiving end. Fair play is all about points and counter-points between two opposing parties and not a volley of unidirectional projectiles, ricocheting and bouncing in the dark echo- chamber of procedure."

Background

In the instant case, the petitioner had prayed for setting aside an order passed by the Registrar (Acting), Visva-Bharati University on August 13, 2019 by which the petitioner's engagement as Casual Labourer with Temporary Status (CLTS) at the University was discontinued with effect from August 1, 2017. The impugned letter of discontinuation was stated to be pursuant to an order of the competent authority dated August 1, 2017 and in line with the recommendations made by the Enquiry Committees referred to in the impugned letter.

It had been alleged by the counsel appearing for the petitioner that the letter of discontinuation had been issued without giving an opportunity of hearing to the petitioner and without the petitioner being given a chance to lead evidence. It was further contended that the petitioner had not been informed of the nature of the complaint and accordingly the impugned letter should be set aside on the ground of breach of the principles of natural justice. 

On the other hand, the counsel appearing for the University submitted that this is a fit case where the disciplinary authority was entitled to dispense with the enquiry in exercise of discretionary powers conferred upon it as it was not practical to hold an enquiry or disclose the Reports of the Committees to the petitioner. He also relied on an affidavit filed by the Assistant Registrar of the respondent University to bring on record the social background of the girl child of the Santosh Pathsala under the University. It was further submitted that mother of the girl child appeared before the three-member Committee set up by the University and refused to lodge any complaint with the police authorities in view of the social stigma which may be caused to the family and thus the University had decided to suspend the petitioner since a full-fledged investigation by the police might traumatize the child.

Observations 

The Court at the outset noted that although the nature of the complaint and the alleged offence committed by the petitioner had been stated in the affidavit filed by the University, no actual documents had been submitted in support of the statements made. It was further observed that the fact that the petitioner was discontinued from his engagement in a summary manner in order to avoid causing trauma to the child is not borne out from the documents before the Court.

"This court is hence invited to form an opinion on the probability of the social stigma and trauma being caused to the child without any corroborating evidence to that effect. The University has not produced any evidence to even indicate the exact nature of the alleged offence including the proven involvement of the petitioner in the commission of it", it was averred further. 

The Court further dismissed the argument of the University that the petitioner did not deny the fact of the complaint since the complaint was not disclosed to the petitioner at all. The Court observed that the contention that the petitioner admitted to the charge, by failing to refute it, is based on presumption and without any material to support the stand taken on behalf of the University.

Opining that the argument of the University that the complainants would face threat and intimidation is unfounded, the Court opined further, 

"The contention that the victim girl would suffer ignominy and trauma if subjected to cross- examination would hold equally true for the petitioner whose dismissal from service may be seen as stigmatic – in the absence of an opportunity to meet and defend the charge against him. There is also nothing on record to substantiate the apprehension of the University that the petitioner's continued engagement would have escalated matters and the petitioner hence had to be removed in as short a time as possible."

It was further noted that the Service Rules for Non-Academic Employees of the Visva-Bharati clearly provide for the right to a hearing and embodies fair play in action. It was thus observed that the University must establish that the circumstances were compelling enough for it to circumvent and depart from the procedure laid down in the Rules. The show-cause notice followed by the impugned notice of discontinuation suggests that the University gave short-shrift to the Rules without any material to justify the same, it was stated further. 

Opining that the principles of natural justice embody the right of a person to know the charge levelled against him, the Court underscored, 

"The rules of natural justice preserve and uphold justice in its most fundamental form; that a person must be heard before he is condemned. It also entails that the person must know the charge in order to defend himself. Both these require that the material which has been or is proposed to be used against the person charged must be disclosed to him."

Reliance was also placed on the Supreme Court judgment in Managing Director, ECIL, Hyderabad v. B. Karunakar in this regard where supply of a copy of enquiry report was held to be an integral part of the inquiry. 

Accordingly, the Court set aside the suspension order. 

Case Title: Nur Afsar Mandal v. Visva Bharati and Ors

Case Citation: 2022 LiveLaw (Cal) 152

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