Court No. - 34
Case :- WRIT - A No. - 29775 of 2000 Petitioner :- Adalat Singh Respondent :- Cane Commissioner And Others Counsel for Petitioner :- K.K.Dwivedi,Hari Nath Tripathi,R.P.Dwivedi Counsel for Respondent :- C.S.C.,Amit Kumar Singh,P.M.N.Singh,Ravindra Singh
Hon'ble Sudhir Agarwal,J.
1. Heard Dr. H.N.Tripathi, learned counsel for petitioner, learned Standing Counsel for State authorities, Sri Ravindra Singh, learned counsel for respondents 3 to 9 and perused the record.
2. Learned counsel for petitioner submitted that petitioner is a permanent employee in Sahkari Ganna Vikas Samiti Ltd. Dhaulana, District Ghaziabad and for this purpose my attention is drawn to page 58 of amended writ petition i.e. Annexure 15 to the writ petition wherein status of petitioner has been shown as “permanent”. It is further contended that termination of petitioner is based on alleged misconduct of absence from duty and indiscipline hence it is penal and stigmatic in nature but he has been terminated without holding inquiry therefore impugned termination amounts to removal or dismissal, which is not permissible without holding disciplinary inquiry.
3. Sri Ravindra Singh, learned counsel for respondents submitted that petitioner was never made permanent and service book, placed reliance by petitioner, is a forged document. He drew my attention to counter affidavit filed on behalf of respondents 3 to 9 dated 24th March, 2019 and Annexure CA-1, CA-1A, CA-2, CA-3 and CA-4 thereof show that petitioner was a “temporary employee”. However, in CA-4A, after word 'temporary', word “Sthai” is also mentioned and there is counter signature of Secretary of the Society.
4. For the purpose of present case, whether petitioner is 'temporary' or 'permanent' employee, the facts remains that by means of impugned order, he has been terminated with allegation that he has been unauthorizedly absent and therefore, has committed misconduct.
5. If that be so, such a termination is not a termination simplicitor but punitive in nature and such termination cannot be made without holding inquiry in accordance with Rules i.e. Rules 84 and 85 of U.P. Co-operative Societies Employees Service Regulations, 1975 (hereinafter referred to as “Regulations, 1975”.
6. Considering a similar question in Jai Shankar Vs. State of Rajasthan AIR 1966 SC 492, Court held that a government cannot order a person to be discharged from service without at least telling him that they propose to remove him and give him an opportunity of showing cause why he should not be removed.
7. Again this issue came up for consideration in State of Assam Vs. Akshaya Kumar AIR 1976 SC 37. There was a provision under Fundamental Rule 18 that a government servant who remain continuously absent for a period of five years or more would automatically seize to be in service. A contention was raised on behalf of the employer that cessation of service or termination under the aforesaid rule is neither removal nor dismissal if the employee remain absent for a period of five years or more. Rejecting this contention, Court held that cessation on account of continuous absence would in substance and effect stay on the same footing as removal of service within the contemplation of Article 311(2) of the Constitution of India, particularly when it is against the will of the employee who is willing to serve or who had never lost animus to rejoin duty on the expiry of his leave. It was also held that the unauthorized absence is nothing but a ground personal to an employee involving imputation, which may conceivably be explained by him and therefore it is a removal of service and is not permissible without complying the provision of Article 311 (2) of the Constitution of India. Therefore, it cannot be doubted now that a termination on account of absence is removal on account of alleged misconduct and hence penal in nature. An employee cannot be punished without complying the principle of natural justice. In the case of Government servants, since a procedure is prescribed under the rules to hold inquiry, any action without complying the said procedure is illegal and unsustainable.
8. As long back in 1958 in Parshotam Lal Dhingra Vs. Union of India AIR 1958 SC 36, Court held that a temporary employee, if sought to be terminated on account of misconduct, negligence, inefficiency or like, such termination causing penal consequences would attract Article 311 (2) of the Constitution of India and even a "temporary servant" is entitled for such protection.
9. The termination of petitioner, therefore, is founded on alleged misconduct hence punitive in nature and without holding any inquiry. Hence, order of termination passed by respondents authorities cannot be sustained.
10. In the result, writ petition is allowed. Impugned order dated 22.02.1990 (Annexure 25 to writ petition) is hereby set aside. The petitioner shall be entitled to all consequential benefits.
11. However, this order shall not preclude respondents from passing fresh order after holding disciplinary inquiry in accordance with law.
Order Date :- 29.5.2019 KA