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Himachal Pradesh High Court · body

2001 DIGILAW 332 (HP)

NAR DASS v. AGRO IND. PACKAGING INDIA LTD.

2001-11-15

NARINDER SINGH THAKUR

body2001
JUDGMENT Narinder Thakur, Honble Member (Judl.):-The applicant in the present original application is aggrieved by the impugned order dated August 10, 2000 (Annexure-A/1) issued by the respondents whereby they have terminated the services of the applicant arbitrarly and illegally and has, therefore, filed the present original application mainly praying for the following reliefs: (i) Quashing impugned order Annexure-A/1 issued arbitrarily, malafide, and illegally by the respondents; (ii) Directing the respondent department to engage the applicant w.e.f. the date of illegal termination with all wages consequential benefits and arrears of back wages a/w interest @ 18% per annum; (iii) Directing the respondents department to issue regularization letter to the applicant regularizing the applicant from the date prior to when his juniors were regularized. 2. The facts are that the applicant joined service with the respondent department as a daily wager Security Guard w.e.f. September 7, 1990. Even since the applicant has been discharging his duties to the satisfaction of his superiors. The applicant has put in eleven years of service in the respondents department till the date of filing of the present original Application. 3. He further states that his services were earlier also terminated arbitrarily and illegally by the respondents department and thereafter the applicant had to obtain the orders from the Honble High Court of Himachal Pradesh and this Tribunal for re-engagement. 4. The applicant had completed the requisite minimum 8 years of regular service with 240 days in each calendar year and has thus become eligible to be regularized in the year 1999. However, the respondent department has delayed the matter. 5. On 24.3.2000 the applicant proceeded on medical leave upto 2.4.2000 and was to join the duty on 3.4.2000. on 3.4.2000 the applicant got injuries in an accident of a tampoo in which he was boarding. 6. The applicant has further contended that the mis-fortune fell on him on 5.4.2000, when he was involved in a false and frivolous criminal case by some persons with vested interest and the applicant was arrested by the police and kept in custody w.e.f. 22.4 2000 to 30.10.2000, i.e. during the pendency of the trial. 7. The trial was concluded on 1.11.2000 and the applicant was honourably acquitted of the false and frivolous case by the learned District and Sessions Judge, Shimla vide Annexure A-2. 8. 7. The trial was concluded on 1.11.2000 and the applicant was honourably acquitted of the false and frivolous case by the learned District and Sessions Judge, Shimla vide Annexure A-2. 8. The applicant being kept in police custody illegally, was thus prevented from joining duty which fact was also known to the respondent department. However, the respondent department has issued in absence the impugned order on 10.8.2000 (Annexure A-1) terminating the services of the applicant without affording the applicant any opportunity of being heard and thus the applicant has been condemned unheard which an act on the part of the respondent department is in clear violation of the principle of natural justice known as audi altrem partum. 9. The applicant further contends that he had made two representations on 10.11.2000 (Annexure A-3) and dated 10.1.2001 (Annexure A-4) through registered AD, wherein the applicant has categorically stated that the applicant has honourably been acquitted of the false and frivolous charges and as such the service of the applicant have been illegally terminated and the applicant is to be reengaged in service w.e.f. the date of termination with all consequential benefits. The applicant has also submitted a copy of the judgment passed by the learned district and Sessions Judge, Shimla dated 1.11.2000 (Annexure A-2) alongwith the representations. 10. It is further submitted by the applicant that the respondent department has regularised the persons Junior to the applicant. The applicant is also eligible to be regularized. Despite this the respondent department is not re-engaging the applicant in service. 11. The applicant contends that the impugned order Annexure A-1 issued by the respondent department is arbitrary, malafide, illegal, ultra vires, against the Articles 14 and 16 of the Constitution of India, dehors the rules and regularization and against the natural justice. He further contends that the termination of the services of the applicant by the respondent department without holding any enquiry and without affording an opportunity of being heard is illegal and arbitrary. Such an arbitrary termination is stigmatic in nature. It is also contended by the application that the respondent department is bound to re-engage the applicant with effect from his illegal termination, after he being proved innocent and his acquittal by the Id. District and Sessions Judge, Shimla. 12. Such an arbitrary termination is stigmatic in nature. It is also contended by the application that the respondent department is bound to re-engage the applicant with effect from his illegal termination, after he being proved innocent and his acquittal by the Id. District and Sessions Judge, Shimla. 12. The contention of the applicant in the original application has come to be countered by the respondents in their reply wherein they have stated in para 3 of the reply that his services have been arbitrarily and illegally terminated vide order dated 10.8.2000 are wrong and denied. They have, however, further stated that the services of the applicant were terminated on the grounds of wilful absence from duties as well as his detention by the police in connection with criminal offences. In para 6.1 of the reply the respondents have stated that, there is no controversy with regard to the working and discharging the duties to the entire satisfaction of the superiors as alleged by the applicant. In Para 6.3 they have stated that they admitted that the applicant has completed 8 years of service. However, it is denied that the respondents have delayed the matter for regularization as alleged. It is further stated that the services of the applicant could not be regularized because at the time when the cases for regularizing the services of the daily wagers were being taken up with the government, the applicant was in the police custody for the offences mentioned in Para 3. In view of the detention of the applicant by the police the question of delaying the matter by the respondents does not arise. 13. In reply to Para 6.4 and 6.5,-respondents have denied that the applicant proceeded on medical leave upto 2.4.2000. In fact, as per office record the applicant proceeded on one day casual leave on 23.3.2000 and on 25.3.2000 a telegramme was received in the office for extending leave on medical grounds. The further contend in the reply that as the application fails to report for duty and notices dated 18.4.2000 (Annexure R-1) dated 29.4.2000 (Annexure R-2) and dated 11.5.2000 (Annexure R-3) were issued to the applicant to report for duty alongwith the medical certificate failing which the departmental proceedings will be initiated, but the applicant failed to report on duty. The further contend in the reply that as the application fails to report for duty and notices dated 18.4.2000 (Annexure R-1) dated 29.4.2000 (Annexure R-2) and dated 11.5.2000 (Annexure R-3) were issued to the applicant to report for duty alongwith the medical certificate failing which the departmental proceedings will be initiated, but the applicant failed to report on duty. A letter dated 19.6.2000 was also written by the respondents to SHO Kotkhai for seeking police report about whereabouts of the applicant with regards to his involvement in any police case and the SHO Kotkhai vide his report dated 20.6.2000 (Annexure R-7 has informed that the applicant is in the police custody far the affence mentioned n para - 3. In para 6-7 of the reply it has been contended that it cannot be admitted that the applicant was prevented from joining duty in view of his arrest by the police. In fact, the applicant Was absenting from the office of respondent No.2; whereas the applicant was arrested on 22.4.2000. The period from 24.3.2000 to 21.4.2000 neither the applicant reported for duty nor gave any reply to the notices issued to the applicant. It is further contended in this para that it is denied that the services of the applicant vide order dated 10.8.2000 were terminated without affording any opportunity of being heard. In fact, the applicant was also issued notices dated 18.4.2000, 19.4.2000 and 11.5.2000 and thus the applicant cannot allege that no opportunity was given to him. In para 6.8 of the reply, it is stated that the applicant is not entitled for re-engagement in view of the detention by the police for the offences of criminal nature. It is further submitted that the moral and conduct of the employees are to be taken into consideration while retaining any person in the job, which may not affect the working culture of the organization. It is alleged that the applicant is giving wrong impression by alleging that he was prevented from joining duties due to his illegal detention by the police, just to obtain the order of re-engagement from this Tribunal. It is alleged that the applicant is giving wrong impression by alleging that he was prevented from joining duties due to his illegal detention by the police, just to obtain the order of re-engagement from this Tribunal. In para 6.9 of the reply, it is also stated that when the cases for regularization of the workers who had completed 8-9 years of service were taken up with the government the applicant was willfully absenting from duties and at that time the applicant also remained in police custody. 14. I have heard learned counseh Sh. P.P. Chauhan, Advocate for the applicant and learned vice counsel Miss Prerma Ronta, Advocate for the respondents and gone through the pleadings of the facts and the record produced by the respondents carefully. The matter was taken up with the consent of the parties. 15. Both the counsel have whimsically argued their case and submitted their contention with law and rules. 16. The admitted position is that the services of the applicant were terminated on the ground of wilful absence from duties as well as his detention by the police in connection with the criminal offences. It is also admitted position that the services of the applicant were likely to be regularized and his case was being submitted for regularisation and. at the nick of the time he absented himself from duties, which as peri the respondents was wilful absence. It is also admitted by the respondents that as per the office record the applicant proceeded on leave on 23.3.2000 and on 25.3.2000 a telegramrhe was received in the office of the respondent No.2 for extention of leave on medical ground. In this background of the admitted facts, the case as to me is that the applicant proceeded on 23.3.2000 on leave and sent a telegramme for extention of leave on medical ground on 25.3.2000! On 5.4.2000 a case was registered at Police Station Kotkhai vide FIR No.35/2000 under Sections 363, 366, 376 (2) (g) of the Indian Penal Code on the basis of the statement under Section 154 of the Code of Criminal procedure made by a girl named Shabnam, aged about 15 years. The name of the applicant alongwith other persons was indicated. The Police was after the applicant right since 5.4.2000 and on 22.4.2000 the applicant and other co-accused were apprehended and thereafter remained in police custody and judicial custody upto 22.10.2000. The name of the applicant alongwith other persons was indicated. The Police was after the applicant right since 5.4.2000 and on 22.4.2000 the applicant and other co-accused were apprehended and thereafter remained in police custody and judicial custody upto 22.10.2000. The trial proceeded and the learned Sessions Judge, Shimla in his Judgment dated 1.11.2000 gave definite finding on the basis of statement of prosecutrix that nobody misbehaved with her, leave alone committing rape on her. As a result thereof the applicant was honorably acquitted, as such there remained nothing an concerns moral turpitude against the applicant. The respondents, therefore, were wrong in holding that the moral and conduct of the employees are to be taken into consideration while retaining any person in the job which may not affect working culture of the organisation and making this a basis for terminating services of the applicant. 17. It is established beyond doubt that it was mis-conduct that formed the basis of the termination of the services of the applicant and the termination of the services were not simplicitor. The services of the i applicant were terminated for two mis-conduct i.e.. one for wilful ) absence, secondly for alleged criminal offences. Even on reading of ii the impugned Annexure A-1, it is amply evident that the services of the applicant were terminated #due to his failure to report for duty on account of his arrest by the police for offences under Sections 363, 366-A, 376 (2) (g) 354 I PC. and his services were thus, terminated retrospectively w.e.f. 22.4.2000 18. P was contended on behalf of the respondents that three notices prior to issuance of the impugned order were issued to the applicant or. 18.4. 2000 (Annexure R-1), 29.4.2000 (Annexure R-2) and 11.5.2000 (annexure R-3) which were not replied to by the applicant on perusal of these three notices it is evident that they were, addressed to the applicant on his home address whereas the respondents were aware of the fact that the applicant was under detention w.e.f. 22.4.2000 to 3.10.2000, as such I fail to understand how could these notices have been served on the applicant at his village when he was not available at his village at that time. 19. The learned counsel for the applicant has relied upon a judgment of the Honble Apex Court reported in 1991 S.C. 1310 titled as Babu Lal Vrs. 19. The learned counsel for the applicant has relied upon a judgment of the Honble Apex Court reported in 1991 S.C. 1310 titled as Babu Lal Vrs. The State of Haryana and others. In para 8 of this judgment, the Honble Apex court has held as under: "8. Moreover, from the sequences of facts of this case, the inference is irresistible that the impugned order of termination of the service of the applicant is of penal nature having civil consequences. It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the court if necessary, for the ends of faif play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. Reference may be made in this connection to the decision of this court in Smt. Rajinder Kaur V. State of Punjab (1986) 4 SCC 141 (AIR 1986 SC 1790) in which one of us is a party. It has been held that (at P.1792 of AIR):- "The impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police rules, 1934, was really made on the basis of the misconduct as found on enquiry into the allegation behind her back. Though couched in innocuous terms, the order was merely a camouflage for an order of dismissal from service on the ground of misconduct. This order had been made without serving the appellant any charge-sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the witnesses examined. The order was thus made in total contravention of the provisions of Art.311(2) and was therefore, liable to be quashed and set aside", 20. It is well settled that what opportunity on natural justice should apply to given case depends to a great extent on the facts and circumstances of the case. The aim of rule of natural justice is to be secured justice or put any indefinite to prevent mis-carriage of justice. It is well settled that what opportunity on natural justice should apply to given case depends to a great extent on the facts and circumstances of the case. The aim of rule of natural justice is to be secured justice or put any indefinite to prevent mis-carriage of justice. These rules can operate only in areas not covered by any law validly made. 21. The applicant has also drawn my attention to the judgment of Honble High court of Himachal Pradesh reported in 1988(2) S.L.C. 46 titled as Kuldip Singh Vrs. State of H.P. In this judgment the Honble High court has observed as under:- "5. In the present case, the Court is absolved from the requirement of looking behind the order in the search for its real foundation because the two affidavits in reply filled by the Director, Social and Womens Welfare leave no room for doubt for debate that the impugned termination is based on the alleged mis-conduct on the part of the petitioner arising out of what has been described as his negligence, carelessness, inefficiency, grave lapse and Himalyan blunder in the discharge of his duties. The impugned termination, therefore, could not have been effected without complying with the minimal requirements of natural justice. This elementary principle of the administrative law, which every public authority dealing with a public servant is required to observe under the circumstances aforementioned, has been brushed aside in the present case by a stroke of pen in what cannot but be described as an arbitrary manner 6 True it is that the petitioner was a daily rated employee. However, this court has repeatedly held that even a daily rated workman cannot be rushed out of employment, on such grounds and under such circumstances, without compliance with the basic rules of natural justice, although no regular departmental enquiry is required to be held against him. It may be reiterated that in the case of a daily rated employee against whom penal action is proposed, the least that is required to be done is: (1) to inform him of the proposed action, (2) to disclose to him the material sought to be relied against him, (3) to afford him a reasonable opportunity to correct or controvert such material and to place his view point and, (4) to arrive at a fair and just decision supported by reasons. Be it realized that the protection of articles 14 to 16 of the constitution is available as much to an employee on daily wages as to any other employee in the public sector. He too has to be dealt with in a fair and just manner and not arbitrarily or whimsically." 22. On perusal of the record, nothing revealed to me that any departmental or domestic enquiry was conducted by the department or any opportunity was given to the applicant to have his such (sic-say) before doing away with the services in arbitrarily and illegal way. 23. In another authority relied upon by the learned counsel for the applicant is reported in 2000(3) SCC 588 titled as Nar Singh Pal Vrs. Union of India and others in which the Honble apex Court has quashed the termination of a casual labour passed on preliminary inquiry and not on the basis of regular inquiry. 24. The apex court in D.K. Yadav Vrs. J.M.A. Industries Ltd. Reported in 1993(3) SCT 37, in para-11 has held that:- "It is well settled that right to life enshrined under Article 21 of the constitution would include right to livelihood. The order of termination with civil consequences of teopar-dising not only his/her livelihood but also carrer and livelihood of dependents. Therefore, before taking any action, putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D.T.C. versus D.T.C. Mazdoor congress and others (Supra) the constitution bench per majority, held that termination of the service of a workman giving one months notice or pay in lieu thereof without enquiry offended article 14 the order terminating the service of the employees was set aside". 25. Similar observations have been made by the Honble apex Court in case titled as HCD versus Praveen Kumar Jain and others reported in i998(9) SCC 468. 26. On the other hand the learned vice counsel Miss Ronta has argued that the respondents are governed by the Industrial Employment (Standing Order) Himachal Pradesh Rules, 1973 and Amendment Rules, 1991. She argued that the services of the applicant had been terminated not due to the criminal offences but in terms of Rule 15 of the Standing Orders. The Rule 15 relates to termination of employment. She argued that the services of the applicant had been terminated not due to the criminal offences but in terms of Rule 15 of the Standing Orders. The Rule 15 relates to termination of employment. Sub rule (2) of this rule reads:- "No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer, badli or casual worker entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of mis-conduct alleged against him in the manner prescribed in para-14". 27. The said contention of the learned counsel is not horn outthe record. The his impugned order (Annexure A-1) clearly spells out the reasons for termination which are based on alleged criminal V offence as well as the wilful absence notwithstanding, even the wilful absence is also misconduct and in that event also Rule 15(2) clearly lays down that the service of temporary workman shall not be terminated as a puishment unless he has (sic-been) given an opportunity of explaining charges of mis-conduct alleged against him in the manner prescribed in para 14. Nothing has been shown to me that any opportunity in consonance with the principles of natural justice or Standing orders were given to the applicant before his services were terminated illegally and arbitrarily. The procedure for disciplinary action for mis-conduct are laid down in the next Rule 16 (wrongly numbered as 15) Rule 16 (c) lays down that if on the conclusion of the inquiry or, as the case may be, of criminal proceedings the workman has been found guilty of charges framed against him and it is considered after giving a workman an opportunity of making representation on the penalty impose, an order of dismissal or suspension or fine, stoppage of annual increment or reduction in rank woud meet ends of justice, the employer shall pass an order accordingly. Sub Clause (d) provides if on conclusion of the inquiry or as the case may be, of the criminal proceedings, the workman has beer>fond to be not guilty of any of the charges framed against him, he shall be deemed to have been on duty during the period of suspension and shall be entitled to the some wages as he would have received if he had not been placed under suspension deduction the subsistence allowances paid to him for such period. 28. From the above discussion, I am of the considered view that no opportunity was afforded to the applicant before terminating his services w.e.f. 24.4.2000. As such there has been infringement of the principle of natural justice. More particularly the principle of "audi altram partum", the impugned order is thus void ab-initio. 29. In the light of above discussion, I allow the present original application and quash order dated 10.8.2000 (Annexure A-1) being issued illegally and arbitrarily and direct the respondents to re-engage the applicant with effect from the date of his-termination with all consequential benefits. The respondents will also regularize the services of the applicant from the due date with all consequential benefits. These directions will be complied with within 45 days from the date of receipt of the copy of this order. With these observations the original application stands disposed of with no order as to costs.