Ganesh Sen. v. Union Bank of India — 1991 DIGILAW 524 (RAJ)

Honble B.R. ARORA, J.—By this writ petition, the petitioner has challenged the order Annexure, 7 dated Feb. 21, 91, passed by the Branch Manager, Union Bank of India, Jodhpur on the instructions of the Central Office of the bank terminating the services of the petitioner from the post of Class IV employee. 2. The Employment Officer, Jodhpur, by his letter dated July 6, 1987, in pursuance to the letter dated June 29, 1987, sent by the Regional Manager, Union Bank of India, Bapu Nagar, Jodhpur, sent the list of the candidates to be considered for appointment on the post of subordinate staff in the bank. The name of the petitioner was, also, included in that list. The petitioner was called for interview by the respondents, on August 25, 1987. The petitioner was interviewed by the respondents on August 25, 1987, and as he was found fit, he was, therefore, asked to appear before the Medical Officer, Jodhpur Hospital and Research Centre, Jodhpur, for medical examination. The petitioner appeared before the Medical Officer and was got medically examined on August 30, 19S0 and was found medically fit. He was, thereafter, given appointment in the Jodhpur branch of the Union Bank of India and he joined the service with the respondent No. 3 w.e.f. August 31, 1990. According to the petitioner, after his selection, and joining the duties, on September 9, 1990, he was asked to submit the application and the petitioner, in pursuance to this letter dated September 12, 90. submitted the application in the prescribed form in general category on September 24, 1990. The case of the petitioner further is that though his services were found satisfactory and the Branch Manager of the bank recommended his name for confirmation, but suddenly his services were terminated vide order dated February 21, 91, on the ground that he could not submit that Caste Certificate. It is against this order, terminating the services of the petitioner, that the petitioner has preferred this writ petition. 3. Heard learned counsel for the parties. 4. It is contended by the learned counsel for the petitioner that he never applied for the service as a Scheduled Caste/Scheduled Tribe candidate nor was his name sent by the Employment Exchange for consideration for appointment against the quota of Scheduled Caste/Scheduled Tribe candidate. 3. Heard learned counsel for the parties. 4. It is contended by the learned counsel for the petitioner that he never applied for the service as a Scheduled Caste/Scheduled Tribe candidate nor was his name sent by the Employment Exchange for consideration for appointment against the quota of Scheduled Caste/Scheduled Tribe candidate. He has placed on record the application form Annexure 4 which he submitted on September 24, 1990 in pursuance to the letter of the respondents dated Sept. 12, 90. In that application form, in column No. 12, he specifically mentioned that he does not belong to Scheduled Caste/Scheduled Tribe community. The case of the petitioner, therefore, is that he was never selected as a Scheduled Caste/Scheduled Tribe candidate and, therefore, the termination of the services of the petitioner on the basis of non-submission of the Caste Certificate, is wholly illegal. His case is that he has been under the services of the respondents and was a probationer within the meaning of Sub-clause (b) of para 508 of Shastri Award and his services could have been terminated as per Clause (4) of para 522 of Shastri Award after giving 14 days notice to him. Alternatively, he has submitted that even as per the bi-party settlement, as per condition No. XIV, the services of the petitioner can be terminated after taking disciplinary action against the petitioner by holding an enquiry. As no enquiry was held, therefore the services of the petitioner could not have been terminated. He has, also, submitted that Sarvashri Mukesh Kumar and Adish Kumar, who were the persons belonging to the general category, were, also, considered by the respondents in the general category and have been given appointments. In nutshell, the case of the petitioner, therefore, is that the appointment of the petitioner was given in the general category and, therefore, the services of the petitioner could have been terminated only after holding a regular enquiry as provided under the Rules and as no enquiry has been conducted therefore, the petitioners services cannot be terminated. Lastly, it is contended by the learned counsel for the petitioner that the order Annexure. 7, terminating the services of the petitioner, has been passed without giving any opportunity of hearing to the petitioner and, therefore, the order has been passed clearly in violation of the principle of natural justice and thus deserves to be quashed and set-aside. Lastly, it is contended by the learned counsel for the petitioner that the order Annexure. 7, terminating the services of the petitioner, has been passed without giving any opportunity of hearing to the petitioner and, therefore, the order has been passed clearly in violation of the principle of natural justice and thus deserves to be quashed and set-aside. In support of his case, the learned counsel for the petitioner has placed reliance over: the State of Rajasthan vs. Panna Lal (D.B. Civil Special Appeal No. 82 of 1984). decided on 30.3.84 Kailash Chandra vs. the Director,] National Institute of Aayurved (1), the State of Orissa vs. Dr. (Miss) Bina Pani Dayee(2). Nand Lal Vs. the State of Rajasthan (3), and Shrawan Kumar Jha vs. the State of Bihar (4). The learned counsel for the bank, on the other hand, has submitted that as per the directions of the Central Government, to give recruitment to the candidates belonging to reserved community and to fill the back-logue as on January 1, 1990. in all the cadres with respect to the vacancies for Scheduled Caste/Scheduled Tribe candidates before August 31, 1990, the action for filling up this back-logue as on January 1, 1990, was initiated and the candidates belonging to the Schedule Caste and Scheduled Tribes were given appointments and the persons who were not belonging to the Scheduled Caste/Scheduled Tribe were not considered and appointments were not given to such persons. The case of the petitioner was considered by the interview board as a candidate belong to the scheduled caste and as the Caste Certificate was not enclosed on that day, therefore, in the interview proceedings dated August 25, 1987, it was marked on the application form that Caste Certificate was not enclosed by the petitioner. The case of the respondents further is that in the application form Annexure R/l, submitted by the petitioner, in column No. 12, he has tick-marked the block as a person belonging to the Scheduled Caste/Scheduled Tribe, which he, later on changed in the application form dated September 24, 1990 (Annexure,4). The case of the respondents further is that in the application form Annexure R/l, submitted by the petitioner, in column No. 12, he has tick-marked the block as a person belonging to the Scheduled Caste/Scheduled Tribe, which he, later on changed in the application form dated September 24, 1990 (Annexure,4). The case of the respondents further is that the panel register which was prepared by the respondent bank on August 25, 1987, after inter-viewing the various candidates appeared before the Interview Board, clearly shows that the petitioner was selected as a Scheduled Caste/Scheduled Tribe candidate and his name appears in the panel register at serial No. 2. On that day, four candidates of Scheduled Caste/Scheduled Tribe were selected, including the petitioner. The petitioner was asked several times to furnish the Caste Certificate and as the petitioner could not furnish the Caste Certificate therefore, the provisional appointment given to the petitioner was cancelled. The learned counsel for the respondents has, also submitted that the question involved in the present case, are disputed questions of facts which cannot be decided in the writ jurisdiction and the writ petition, filed by the petitioner, deserves to be dismissed. He has further submitted that the petitioner, by committing a fraud and showing himself to be a member of Scheduled Caste, got the provisional appointment but no status was given to him and no letter of appointment was ever issued in his favour. The letter of appointment could have been issued only if the petitioner would have submitted the requisite caste certificate. With respect to the question regarding following the principles of natural justice, the case of the respondents is that no status was conferred on the petitioner and no letter of appointment was issued to the petitioner and as the petitioner got the appointment by committing the fraud, therefore, before passing the order, no notice was necessary to be issued to the petitioner. The learned counsel for the respondents, in support of his case, has placed reliance over the State of Punjab vs. Jagdip Singh (5) and Dr. Suresh Chandra Verma vs. the Chancellor, Nagpur University (6). The learned counsel for the respondents, in support of his case, has placed reliance over the State of Punjab vs. Jagdip Singh (5) and Dr. Suresh Chandra Verma vs. the Chancellor, Nagpur University (6). The case of the respondents is that the appointments were given under Article 16 (4) of the Constitution of India and are not in the general category and when the petitioner got he appointment by committing a fraud, which is borne out from the record itself, then it will be a futile exercise to grant relief in the present case, as the net result of the admitted facts of the case is that the petitioner being not a member of the Scheduled Caste/Scheduled Tribe, his services will have to be terminated after notice and it is not expected that the Court should exercise its jurisdiction in such matters. 5. I have considered the rival submissions made by the learned counsel for the parties. 6. There are two application forms submitted by the petitioner himself, which are available on record One is Annexure. R/l submitted by the petitioner on August 25, 1987, in which the petitioner, in column No. 12 has shown himself as a member of Scheduled Caste/Scheduled Tribe. The case of the petitioner is that he did not put the Z mark in the application form Annexure R/l in column No. 12. Whether the petitioner put that mark or not, is a question of enquiry which cannot be decided in the writ petition. A person, who fills-in the form, is presumed to have filled all the columns. However, this question can be decided only after holding an enquiry and not at this stage. The second application form is Annexure. 4, which the petitioner submitted on September 24, 1990, after joining the services, in which in column No. 12, he has shown himself to be a person not belonging to the Scheduled Caste/Scheduled Tribe. The documents produced by the respondents show that the petitioner was selected as a member of Scheduled Caste/Scheduled Tribe, i.e., from the reserved quota, while the petitioner has tried to show from the record produced by the respondents that he applied in the general category and was considered and selected by the respondents. But these are disputes questions of fact which can be decided only after holding a regular enquiry by the respondents or the matter can be decided in a suit. But these are disputes questions of fact which can be decided only after holding a regular enquiry by the respondents or the matter can be decided in a suit. But so far as this Court is concerned, it is, no doubt, true that the Court is not incompetent to decide the question of fact if it can be determined from the materials available on record, but normally while exercising its powers under Article 226 of the Constitution of India, the Court is not expected to convert the proceedings into a suit and to enquire into the disputed question of fact and determine and resolve the controversy which requires detailed enquiry and evidence. The object of Article 226 of the Constitution of India is not be establish the rights of the petitioner but to enforce the rights of the person concerned. In the present case, neither the case of the petitioner was considered in general category or in a reserved category of Scheduled Caste/ Scheduled Tribe, that is a disputed question of fact, which can be decided only after a detailed enquiry by the respondents. Now, so far as the question of applicability of Shastri Award or the bi-party settlement is concerned, when the question: whether the petitioner acquired any status in the service or not, has to be first considered and when that is in dispute, which cannot be decided in a summary way in the writ jurisdiction, then that question, also, cannot be decided by this writ petition under its extraordinary jurisdiction. 7. Now comes the question, whether the petitioner is entitled for any notice before passing the order Annexure 7, terminating the services of the petitioner? The ease of the respondents is that the appointment to the petitioner was given against the Scheduled Caste/Scheduled Tribe candidates quota and he was asked to furnish the caste certificate, but the petitioner did not furnish the same and, therefore, the order, appointing the petitioner, was cancelled as his provisional appointment was void because he was not the member of the reserved class. This provisional appointment, given to the petitioner, does not confer any legal right in favour of the petitioner to continued in service. The petitioners case, on the other hand, is that he was duly selected by the respondents in the general category and, therefore, before terminating his services, a notice was must. 8. This provisional appointment, given to the petitioner, does not confer any legal right in favour of the petitioner to continued in service. The petitioners case, on the other hand, is that he was duly selected by the respondents in the general category and, therefore, before terminating his services, a notice was must. 8. In the case of the State of Rajasthan vs. Panna Lal (D.B. Civil Special Appeal No. 82 of 1984), decided on March 30, 1984, the petitioners in that case, as per the State, were wrongly mentioned as Civil Mistry while actually they were posted as Road Mistries and the salary of Civil Mistry was wrongly paid to them for a period of ten years and when this alleged mistake was discovered, the petitioners in that case, were reverted to the post of Road Mistries. Before passing the reversion order, the petitioners were not given any opportunity of hearing. The Division Bench of this Court held that where the civil rights of the parties are likely to be affected by a modification of the earlier order so much so that the writ petitioners were required to refund a portion of the salary already paid to them,, it would be just and proper and in consonance of the principle of natural justice that the modification or correction of the earlier order of appointment should have been made only after giving a notice to the petitioner and after affording an opportunity of hearing, the matter may be decided. 9. In the case of Kailash Chandra vs. the Director, National Institute of Aayurved (supra) the petitioner was given appointment in a regular manner on the recommendation of the Selection Committee constituted in accordance with the Rules. Later on, it came to the notice that the petitioner submitted a false certificate with effect to his two years experience in the laboratory technology in the Laboratory of a Public Institute. The services of the petitioner were terminated without giving any notice or affording opportunity of hearing to the petitioner and, therefore, the Court came to the conclusion that there is a clear violation of the principle of natural justice before passing the impugned order of his services. The Court, therefore, set-aside the order of termination as it was passed in violation of the principle of natural justice. 10. In the case of the State of Orissa vs. Dr. The Court, therefore, set-aside the order of termination as it was passed in violation of the principle of natural justice. 10. In the case of the State of Orissa vs. Dr. (Miss) Bina Pani Dayee (supra) Dr. Bina Pani Dayee was appointed as an Assistant Surgeon in the Orissa Medical Services. At the time of appointment, Dr. (Miss) Bina Pani Dayee declared that her. date of birth was April 10, 1910. At the time of superannuation, some anonymous complaints were received against Dr. Bina Pani that she has given wrong date of birth and her actual date of birth is April 4, 1907. A notice was issued and Dr. Bina Pani Dayee submitted that her date of birth was that which is actually recorded in the service book and some over-writing has been made, which has been relied upon on the false complaint. The Government of Orissa determined the date of birth of Dr. Bina Pani as April 16, 1907, and declared that she should be deemed to be retired on July 15, 1963. A contention was raised before the Honble Supreme Court that proper and reasonable opportunity of showing cause against the action proposed to be taken in regard to the order, was not given to the petitioner and, therefore, the order deserves to be quashed and set-aside. The Honble Supreme Court came to the conclusion that the petitioner was not given the copy of the report of the Enquiry Officer who conducted the enquiry into the matter of correct date of birth and the order violated the principle of natural justice and the Honble Supreme Court, therefore, quash and set-aside the order. 11. In the case of Nand Lal vs. the State of Rajasthan (supra) the petitioners were appointed after due selection on regular basis in the Medical and Health Department. Later on, it was found that the appointment given to the petitioner was in violation of the Rules as the then Chief Medical and Health Officer gave the appointment to the petitioner without following the procedure laid down under the Rajasthan Class IV Servants (Recruitment and other Service Conditions) Rules, 1963 and in fact the Board was not properly constituted. The services of the petitioner were, therefore, terminated as the appointment given to the petitioner was clearly in violation of the Rules. The services of the petitioner were, therefore, terminated as the appointment given to the petitioner was clearly in violation of the Rules. The Court considered the case of the petitioner and came to the conclusion that the principle of audi alteram partem is the basic principle of natural justice and no one should be condemned without following the principle of natural justice and the Courts of Law apply this principle to ensure a fair play and justice in judicial and quasi-judicial matters. The Court further observed that the question whether the appointment was in breach of the procedure provided in the Rules and was void could be decided in an inquiry after giving an opportunity of being heard to the petitioners. The Court, therefore, allowed the writ petition and quashed and set-aside the order terminating the services of the petitioner. 12. In the case of Shrawan Kumar Jha vs. the State of Bihar (supra), the appellants were appointed as Assistant Teachers by the District Superintendent of Education by an order dated May 28, 1988. Before joining the duties, they were supposed to get the certificate and other documents verified from the authority concerned. The appointments given to these teachers, were later on cancelled by the Deputy Development Commissioner on the ground that the District Superintendent Education had no authority to make appointments. The order cancelling the appointments was passed without giving any opportunity of hearing to the petitioners. The Supreme Court, therefore, set-aside the order of cancelling the appointments as the opportunity of hearing before cancelling their appointments, was not given to them. 13. In the case of the State of Punjab vs. Jagdip Singh (supra), the respondents were working as the Officiating Tehsildars in the erstwhile State of Pepsu. By the notification dated October 23, 1956, the respondents were confirmed on the posts of Tehsildar with immediate effect. No post was, however, available at that time on which the respondents could have confirmed and, therefore, the Rajpramukh of Pepsu sanctioned the creation of these posts on October 24, 1956, and on November 1, 1956, the State of Pepsu was merged in the State of Punjab and from that day, the respondents became the servants of the State of Punjab. The Punjab Government re-considered the cases of the respondents and by its order dated October 31, 57, de-confirmed the respondents The respondents filed a writ petition before the Punjab and Haryana High Court challenging the action taken by the Government of Punjab. The writ petition, filed by the respondents, was allowed by the High Court and against that order the State of Punjab went in Special Appeal before the Honble Supreme Court. The Honble Supreme Court allowed the appeal filed by the State of Punjab and held that on the date the respondents were confirmed as the Tehsildars, there had been no actual or substantive vacancies and moreover, there was no rule which empowered the Financial Commissioner to create the posts of Tehsildar and as there was neither any substantive vacancy nor anticipatory vacancy in the cadre of Tehsildars on 23rd October 1956, and, therefore, the confirmation of the respondents on the posts of Tehsildars was wholly void and the respondents did not acquire any legal right to be treated as confirmed Tehsildars. The Honble Supreme Court discussed the question whether is it not open to the government to treat the confirmation as void and notified the person affected and the public in general having it so by issuing the notification. The Supreme Court, considering the law on the point, observed as under: "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt,the Government has used the expression "de confirming in its notification which may be susceptible of the meaning that it purported to undo an act which was, therefore valid. We, must, however, interpret the expression in the light of actual facts which led up to the notification. No doubt,the Government has used the expression "de confirming in its notification which may be susceptible of the meaning that it purported to undo an act which was, therefore valid. We, must, however, interpret the expression in the light of actual facts which led up to the notification. Those facts clearly show that the so-called confirmation by the Financial Commissioner of Pepsu was no confirmation at all and was thus, invalid." The learned counsel for the respondents, on the basis of this authority, has submitted that as no status was given to the petitioner in the service and the order appointing the petitioner was wholly void and, therefore, the petitioner was not entitled to any notice. This case does not help the respondents because in the case before the Honble Supreme Court, there was neither any vacancy nor was there any anticipated vacancies of the Tehsildars and therefore, the confirmation of the respondents on the posts of the Tehsildars could not have been made. But in the present case, the respondents Selection Board was competent to screen candidates to give appointments in general category as well as in the reserved category and was, also, competent to give appointment to the applicants against both the categories and it is not in dispute that at the relevant date there were some vacancies in the general category also. 14 The question whether the interview was held only for the vacancies for Scheduled/Caste/Scheduled Tribe candidates, and the appointment was given to petitioner in which category is a question of enquiry and I am not deciding that question. But the fact remains that the respondents were competent to give appointments in general category as well as in reserved category. 15. In the case of Dr. Suresh Chandra Verma V. the Chancellor, Nagpur University (supra) the applications for appointments on the posts of Professors, Readers and Lecturers in Nagpur University were invited. Number of applications were received by the Nagpur University from the persons: both for reserved and ton-reserved classes, for all the categories of the posts. This advertisement was corrected later on by a corrigendum, and the employment notice for above posts in all the three categories was issued and after following the due procedure, the appointments were made. Number of applications were received by the Nagpur University from the persons: both for reserved and ton-reserved classes, for all the categories of the posts. This advertisement was corrected later on by a corrigendum, and the employment notice for above posts in all the three categories was issued and after following the due procedure, the appointments were made. Against these appointments, some social workers and organisations made representations to the Chancellor, making the grievance both against the employment notice as well as the procedure followed in making such appointments. The Chancellor appointed One-man Committee to enquire into the matter. The Committee submitted its report which was accepted by the Chancellor. During the pendency of the enquiry, certain writ petitions were, also, filed in the High Court challenging the employment notice for various posts. The High Court accepted the contention raised by the petitioners and quashed the employment notice and set-aside the appointment orders to the posts which were challenged in those writ petitions. The Chancellor, taking into consideration the report of the Committee as well as the decision of the High Court, directed the Vice Chancellor to terminate the services of all the appointees and accordingly the Vice Chancellor orders for the termination of the services of those appointees and other similar appointed persons. The High Court held that general reservations were in breach of the provisions of the Act and against the reservation policy and are, therefore, illegal. The Court also, opined that the appointments were not in accordance with law from the beginning. The termination of the services of the appellants was, therefore, legal. Regarding the question: whether the petitioner-appellants were entitled for any notice before the order of termination is passed, the Court opined as under:- "When the services of the appellants are to be terminated in view of the change in the position of law and not on account of de-merit or misdemour of the individual candidate then it is not necessary to hear the individual before their services are terminated. The rule of audi-alteram partem does not apply in such cases and, therefore, there is no breach of the principle of natural justice." This case of the Honble Supreme Court, also, does not help the respondents, as in that case, the appointments were held void and contrary to the law by the High Court. 16. The rule of audi-alteram partem does not apply in such cases and, therefore, there is no breach of the principle of natural justice." This case of the Honble Supreme Court, also, does not help the respondents, as in that case, the appointments were held void and contrary to the law by the High Court. 16. Now, considering the case of the petitioner, in view of the law laid down by this Court as well as by the Honble Supreme Court. It is, no doubt, true that the right of the petitioner for remaining in service for which he was selected by the respondents is affected by the order Annexure 7 passed by the respondents. Whether the petitioner was selected in the general category or in reserved category, that question can be decided by holding an enquiry after giving due notice to the person affected. It is an admitted position that before passing the order Annexure, 7, no notice to Show Cause was given to the petitioner by the respondents and the services of the petitioner were terminated. It is a settled law that no order to the detriment of the petitioner may be passed without giving him a notice or affording reasonable opportunity of hearing to the petitioner. As the services of the petitioner were terminated by the respondents without giving him any notice and affording reasonable opportunity of hearing, the order Annexure-7, passed by the respondents is wholly in contravention of the principle of natural justice. Thus, the necessary requirement of law is that no person can be condemned unheard and as such before taking any action against the petitioner and terminating his services it was necessary for the respondents to have informed the petitioner regarding the allegations against him and the action proposed and thereafter, after giving an opportunity to show cause and, for submitting the explanation and after hearing him, the respondents could have passed the order terminating the services of the petitioner. 17. In the result, I allow the writ petition, filed by the petitioner, quash and set-aside the order dated February 21, 1991 (Annexure, 7) terminating the services of the petitioner. 17. In the result, I allow the writ petition, filed by the petitioner, quash and set-aside the order dated February 21, 1991 (Annexure, 7) terminating the services of the petitioner. Since I have not decided the question on merit: whether the appointment of the petitioner was against the reserved category or general category, and have allowed the writ petition only on the ground of violation of the principle of natural justice, hence the respondents will be free to take any action, if they so choose, after giving a reasonable opportunity of hearing to the petitioner in accordance with law.