JUDGMENT Devi Prasad Singh, J.
1. Heard the learned Counsel for the petitioner and Shri V.S. Ojha holding brief of Shri Sandeep Dixit the learned Counsel for the opposite parties. With the consent of parties' counsel, I proceed to decide the writ petition finally at admission stage.
2. The brief facts of the case are that Mohd. Shiraj, the petitioner was appointed as daily wager on muster roll on 4.5.1987. Thereafter again he had served the Department as Driver from 1.3.1988 to 3.10.1989. On 4.10.1989 petitioner's services were terminated orally. Against the order of termination, petitioner has approached the Labour Court. The Deputy Labour Commissioner had referred the matter to the Industrial Tribunal. Both the parties appeared before the Conciliation Officer. Before the conciliation officer the parties had entered into the compromise on 16.11.1998, a copy of which has been annexed as Annexure-1 to the writ petition. A perusal of the compromise indicates that it was agreed between the parties that petitioner may be restored in service forthwith. The compromise also provides that the services of the petitioner shall be considered for regularisation whenever the process shall start to fill up the regular vacancies.
3. The submission of the learned Counsel for the petitioner is that in pursuance of the compromise dated 16.11.1998 the petitioner had joined the duties. The Industrial Tribunal had rendered an award dated 18.11.1998. Since 16.11.1998 petitioner had continuously discharged duty without any complaint from any section. It has been alleged that petitioner's services were orally terminated. Against the order of termination, the petitioner had preferred the present writ petition. An interim order was passed directing the opposite parties to decide the representation. By the impugned order dated 16.11.1999, a copy of which has been annexed as Annexure-13 to the amended writ petition, petitioner was informed that his services were terminated.
4. While assailing the impugned order, the learned Counsel for the petitioner has relied upon the judgements of Hon'ble Supreme Court reported in (2005) 12 SCC 428, Ashwani Kumar and Ors. v. State of Haryana and Ors. and , U.P.S.R.T.C and Anr. v. Jeewan Prasad Misra and Anr.
5. While defending the impugned order, Shri V.S. Ojha the learned Counsel for the respondents submits that the impugned order dated 16.11.1999 does not suffer from any impropriety or illegality. Since petitioner was engaged on muster roll the authorities was competent to terminate the petitioner's services.
6. I have considered the arguments advanced by the learned Counsel for the parties. From the perusal of the impugned order dated 16.11.1999, at the face of record, it shows that the order of termination from service is stigmatic and order has been passed on account of misconduct i.e. misbehaviour with the higher authorities. Moreover, it appears that though the petitioner services were dispensed with on 14.5.1999 but no written order was passed. The impugned order was passed only in pursuance to the interim order passed by this Court. At the face of record the authorities have acted in a very arbitrary and autocratic manner by terminating the petitioner's services orally. It is settled law that an order passed terminating the services orally is an arbitrary act and shall be hit by Article 14 of the Constitution of India. Under our constitutional mandate and service jurisprudence it shall always be incumbent upon the authorities to pass written order precisely indicating the reason for termination the services vide , Mohinder Singh Gill and Anr. v. The Chief Election Commissioner New Delhi (para 8).
7. Apart from above, a perusal of the compromise indicates that petitioner's services were absorbed with the condition that whenever process to fill up the regular vacancy took place petitioner shall be considered for regularisation. Meaning thereby the nature of petitioner's employment was not purely on "muster roll". It was little above, may be of the cadre of temporary government employee. Petitioner was entitled to be considered for regularisation during the course of regularisation process. Agreement entered into between the parties before the statutory authorities that is Conciliation Officer is binding and employer does not have got right to violate the terms and conditions of the agreement. In the present case, it was not open on the part of the opposite parties to treat the petitioner's services purely on muster roll and terminate the same orally. In case, petitioner had committed some misconduct then opposite parties should have proceeded in accordance with law by holding regular enquiry giving opportunity to the petitioner to defend his cause.
8. In the case of Jeewan Prasad Misra (supra) Hon'ble Supreme Court had held that the termination of services without show cause notice amounts to non-compliance of natural justice and shall not be sustainable. For convenience the relevant para is reproduced as under:
4. We have heard learned Counsel for the parties. In our view, the order terminating the services of Respondent 1 cannot be sustained for the simple reason that as held by this Court at least natural justice required that he should have been served with a notice calling upon him to show cause why action should not be taken against him for not reporting for duty at Dehradun. As that was not done, no fault can be found with the decision of the High Court that the order of termination was bad.
9. In the case of Ashwani Kumar (supra) where an order of termination was passed without prior notice or hearing Hon'ble Supreme Court held that since opportunity of hearing was not given to the petitioner and no notice was served hence removal from service shall not be sustainable and the judgement and order of High Court was set aside by the Hon'ble Supreme Court and the matter was remanded back. Hon'ble Supreme Court had observed that removal from service without opportunity of hearing or dismissal of the writ petition by the High Court without recording a finding on merit of the case was not justified. Relevant portion from the judgement of Ashwani Kumar (supra) is reproduced as under:
4. As we feel that the appellants were not given an opportunity of being heard either by the authorities who removed them from service or by the High Court, we are of the view that the appellants be heard by the High Court and a reasoned order be passed and for that limited purpose, we set aside the impugned order of the High Court and remand the case back to the High Court to consider the writ petition filed by the appellants on merits after giving them an opportunity of being heard and dispose it of on merits by a speaking order. The respondents would be at liberty to raise all contentions before the High Court.
10. Apart from above two judgements it has been settled by catena of judgements of Apex Court ; Smt. Maneka Gandhi v. Union of India and Anr. ; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, that even if, there is no provision under rules or regulations, natural justice is part and parcel of Article 14 of the Constitution of India. It shall always be incumbent upon the authorities before passing an order which affects the civil rights of the citizen proper opportunity should be afforded.
11. In view of above, the writ petition deserves to be allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 16.11.1999, a copy of which has been annexed as Annexure-13 to the writ petition with consequential benefits. However, since, petitioner had not discharged duties he shall be paid only 25 per cent of the salary admissible under Rules. It shall be open to the opposite parties to proceed afresh in accordance with law.
Writ petition is allowed accordingly. No order as to costs.