Heard learned counsel for the petitioners and learned Standing Counsel appearing for respondents.
With the consent of learned counsel for the parties, the writ petition is finally decided.
There is consensus at bar that the present matter is squarely covered by the judgment and order dated 12.09.2018 passed in Writ Petition No.592 (SS) of 2015 in re: Anwar and 2 others vs. State of U.P. and others. For the sake of convenience, the judgment and order dated 12.09.2018 is reproduced below:-
"Heard learned counsel for the petitioners and Sri Nitin Mathur, learned Standing Counsel for the State.
By means of the present petition, the petitioners have prayed for following reliefs:-
"i. Issue a writ order of direction in the nature of certiorari for quashing the impugned oral termination order dated 01.05.2014 passed by the opposite party no.2 after summoning the original from the opposite party.
ii. Issue a writ order or direction in the nature of mandamus commanding the opposite parties to permit the petitioners to perform their duties and their salary continuously.
iii. Issue a writ order or direction in the nature of mandamus commanding the opposite parties to pay the arrears of salary to the petitioners w.e.f. May 2014 till date alongwith the interest.
iv. Issue a writ order or direction in the nature of manner which deemed just and proper in the circumstances of the case.
v. Allow the writ petition with costs."
The case set forth by the petitioners is that in pursuance of the order dated July 2011, copy of which is annexure no.1 to the writ petition, the petitioners were appointed on the vacant post of Chaukidar by the District Magistrate, Sitapur, on temporary basis and it was also provided that their services could be dispensed with at any point of time without assigning any reason. In pursuance of the said appointment order, it is admitted by the respondents also that the petitioners submitted their joining and are purported to be working in pursuance of the subsequent orders dated 21.07.2011, 23.07.2011 and 28.07.2011. The petitioners continued to work and draw the honorarium for the said post every month, but strangely they were not paid any amount from the month of April, 2014. Thereafter the petitioners were not permitted to work rather terminated by means of oral order dated 01.05.2014 passed by the respondent no.4. Being aggrieved, the petitioners are before this Court.
Learned counsel for the petitioners submits that once the petitioners were appointed in pursuance to a written appointment order dated July, 2011 by the District Magistrate, Sitapur, though their services were of temporary nature, yet their services could not have been dispensed with by means of an oral order, and thus the impugned action on the part of the respondents is patently arbitrary, illegal and malafide. It is also argued that the impugned termination having been done without affording any opportunity of hearing to them, the same is patently violative of the rules of principles of natural justice and consequently the impugned termination order needs to be quashed.
Per contra Sri Nitin Mathur, learned Standing Counsel on the basis of averments contained in counter affidavit has argued that the appointment of the petitioners was occasioned on account of a direction of 'higher level' to improve the law and order situation and in consequence thereof, a total of 403 Chaukidars were appointed by the Competent Authority on the posts lying vacant. So far as the petitioners are concerned, it is admitted that they were appointed vide orders dated 21.07.2011, 23.07.2011 and 28.07.2011. It is further argued that in District Sitapur, to which the instant matter pertains, total number of villages are 1753 and the sanctioned strength if Chaukidars is 1163, but at the moment, 1714 Chaukidars are working and as such, there is an excess of 551 Chaukidars from the sanctioned strength, with the result, certain Chaukidars were not being paid the honorarium.
Sri Nitin Mathur also submitted on the basis of para-6 of the counter affidavit that no written order has been passed for terminating the services of the petitioners and they are not discharging their duties.
Having heard learned counsel for the contesting parties and perused the records, what this Court finds is that admittedly the petitioners were appointed by a written appointment order by the District Magistrate, Sitapur, though it was indicated in the appointment order that their services were temporary and could be dispensed with without giving any reason. However, the fact of the matter remains that once they were appointed by means of the written order consequently their services could not have been dispensed with by means of oral termination order. In this regard, reliance may be placed upon the judgment of this case, in the case of Radhey Shaym versus State of U.P. & others reported in 2001 (19) LCD 1049, wherein this Court has held as under:-
"6. .................. Being the fact that he was selected and wait listed after following a due selection process by a Selection Committee which was constituted by a competent authority, his service should not have been terminated merely by virtue of a verbal order. It has not been asserted on behalf of the opposite parties that any order in writing terminating the petitioner's service or discharging him from duty was ever issued or served upon him. A crucial question arises as to when a written order of appointment was issued, why the petitioner was asked orally to go back home and not to come to perform his duty? A reasoned written order was required to terminate the petitioner's service, particularly when Sri jamil Ahmad, is whose leave arrangement the petitioner was appointed, has not, till date, reported for duty.
8. When the petitioner was appointed by virtue of a written appointment letter and with a condition that he will continue until Sri Jamil Ahmad resumes his duty, his services could not have been terminated without passing a written reasoned order. The verbal termination order asking the petitioner to sit at home and not to report for duty was arbitrary, unreasonable and unconstitutional."
Also reliance has been placed upon the judgment in the case of Arbind Kumar Mishra versus State of U.P. & others reported in (2004) UPLBEC 2997, wherein this Court has held as under:-
"7. ........ An order of termination of service passed orally is a highly arbitrary act on the part of the authorities. It is settled law that the right of livelihood is a fundamental right guaranteed under Article 21 of the Constitution of India. It is also settled law that in case, the authorities passes an order affecting a person's civil right or right to livelihood, they have to act fairly and in a reasonable manner. The termination of the services of the employee by oral order is a feudalistic approach does not got sanction from our Constitution. Even the services of temporary Government Servant may be dispensed with in accordance with the provisions contained in U.P. Temporary Government Servant (Termination of Service) Rules, 1975. Similarly, the termination of a workman should be done in accordance with the provisions contained in Section 6-N of the UP. Industrial Disputes Act, 1947. Since the petitioner, has worked for more than 3 years' continuously and the factum of working has not been denied, the petitioner's services is being protected by statutory provisions contained in Section 6-N of the U.P. Industrial Disputes Act. Since long it is the settled law, that in case, the authorities want to do certain thing then they have to act in accordance with the manner provided under the Act or Statute. A reference may be given to a leading case reported in AIR 1967 SC 395 (Para 34), Barium Chemicals case.
8. Oral order or instruction passed by the authority terminating the services of an employee is an arbitrary unjust and improper act hence shall be hit by Article 14 of the Constitution of India. The procedure to terminate the services by oral order or instruction cannot be approved under our constitutional frame and such practice is highly objectionable and deprecated in strongest word. The authorities must adopt a recourse while taking such action in accordance with law or statutory provisions. Even if there is no statutory provisions, it shall always be necessary for the authorities to pass a written order instead of acting in an autocratic way."
Consequently when the facts of the instant case are tested upon the touch stone of the law laid down by this Court in the cases of Radhey Shaym and Arbind Kumar Mishra (supra), what this Court finds that the impugned action on the part of the respondents, terminating the services of the petitioners by means of oral order, does not stand the test of fairness. Consequently, the impugned oral termination order being illegal has to be quashed and set aside.
Accordingly, keeping in view the aforesaid fact, the impugned oral termination order dated 01.05.2014 is quashed and set aside. Consequences to follow."
Accordingly, keeping in view the aforesaid consensus the present petition is allowed in light of the judgment and order dated 12.09.2018 passed by this Court in the aforesaid writ petition.
It is further provided that the petitioners of the instant writ petition shall also be entitled for the benefit of the aforesaid judgment.
Order Date :- 26.8.2019 A. Katiyar