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2002 DIGILAW 36 (HP)

YOGESHWER v. STATE OF HP

2002-03-01

NARINDER SINGH THAKUR

body2002
JUDGMENT Narinder Thakur, Honble Member (J) 1. These bunch of eight cases No. OA-141/2002, OA-130/2002, OA-99/2002, OA-87/2002, and OA-86/2002 have been filed by the applicants against the impugned orders issued by the respondents on 7.1.2002 whereby they have terminated the services of the applicant without affording any opportunity to them or holding any proper enquiry. It is alleged that the impugned order is arbitrary innocuous which is stigmatic in nature. 2. The common facts involved in all these eight matters are that the respondent department has conducted written test on 20.2.2002 for the post of Laboratory Assistant. All the applicants appeared in the said test. Some of the applicants were sponsored by the employment exchange and others have applied directly. The applicants fared well in the said written test and as a result of the same the applicants were selected for the post of laboratory Assistant in the pay scale of RS. 3120-5160. 3. Admittedly the applicants were given appointment letters and the applicants joined their duties as laboratory Assistant at different Government Schools. The applicants submitted all the requisite documents as per terms and conditions of the appointment. Ever since the applicants have been discharging their duties to the entire satisfaction of their superiors and by now the applicants have completed one year and ten months of their service. All the applicants have been allotted their GPF numbers. 4. There has been some complaints that certain irregularities have been made in the appointment of the some of the candidates. Two enquiries are alleged to have been held behind the back of the applicants, without associating the applicants or any other person. The result of the said enquiry was also not disclosed to the applicants nor any show cause notice was issued to the applicants to put up their defence. However, the applicants have learnt that in the enquiry it was found that the DPEO and one of the Office Superintendent of the DPEOs office have selected/appointed their kiths and kins. Not all the applicants are related to the DPEO or the than Superintendent. 5. However, the applicants have learnt that in the enquiry it was found that the DPEO and one of the Office Superintendent of the DPEOs office have selected/appointed their kiths and kins. Not all the applicants are related to the DPEO or the than Superintendent. 5. Now vide the impugned order dated 7.1.2002, respondent department has terminated the services of the applicant without holding any enquiry or affording any opportunity of being heard, by invoking clause 7 of the terms and conditions given in the appointment letter and under the provisions of Rule 5 of CCS (Temporary) Service Rules, 1965, which act of the (sic-respondent department is palpably) palpable and manifestly wrong and illegal and the said provision cannot be invoked in the facts and circumstances of the case. 6. Reply has been filed by the respondent in one of the case only i.e. Original Application No. 85/2002 titled as Yogeshwar Versus State of H.P. and others and the same has been adopted in all the other cases as the issue involved in the same. 7. In the reply it has been averred that the applicants were appointed in April, 2000 and were on probation. Their services have been terminated in accordance with Rule 5.1 of the Central Civil Services (Temporary Services) Rules, 1965. The applicants have been paid one months salary in accordance with the said rule. It is further stated that out of these eight applicants the name of only one candidate was sponsored by the Employment Exchange and the remaining seven applied directly. It is further averred that some of the applicants were graduate and their names could not have been sponsored by the employment, exchanges for the post of Laboratory Attendant even if their names were registered because requisition was for Middle/Matric passed candidates. There had been complaints regarding such appointments. An inquiry was conducted and the whole selection process was found to be fraudulent. On the basis of inquiry the entire selection process has been quashed and set aside. In the inquiry report it was revealed that the DEO, Kangra had sent requisition to various Employment Exchanges i.e. Palampur, Lamba Gaon, Baijnath, Nurpur, nagrota Surian, Jawali, Dehra, Indora and Baroh in order to fill up 11 vacancies of Laboratory Attendant in different categories, i.e. General: 6, OBC: 1, SC: 2, Ward of EX.: 1 IRDP (Gen.): 1. In the inquiry report it was revealed that the DEO, Kangra had sent requisition to various Employment Exchanges i.e. Palampur, Lamba Gaon, Baijnath, Nurpur, nagrota Surian, Jawali, Dehra, Indora and Baroh in order to fill up 11 vacancies of Laboratory Attendant in different categories, i.e. General: 6, OBC: 1, SC: 2, Ward of EX.: 1 IRDP (Gen.): 1. The aforesaid Employment Exchanges and sponsored the names of the 184 candidates. However, call letters were issued to 95 candidates through UPC. As per rules, the three times candidates were to be called for personal interview after the test, but in this case only eight candidates were declared pass and called for interview instead of calling three times candidates, therefore, the whole process is against the prescribed norms and rules. The selection procedure process was found to be in fraudulent, unfair and not done in accordance with the codal procedure. The record pertaining to the recruitment has been found to be tampered with and manipulated. Even there were no signatures of any evaluator a valuator/examiner on the answer books. The record of question paper vide which the written examination was held on 20.2.2000 was also not traceable in the office of district Education Officer, Kangra. On the basis of inquiry this selection process/interview dated 20.2.2000 of Laboratory Attendant have been quashed and set aside which action of the respondents is valid, just and legal in the eyes of law. The selection proceeding were manipulated and have not been done on merit depriving the rightful candidates from their dues, thus causing injustice to them. 8. These matters were heard with the consent of the parties and the learned counsel for the respective parties have argued the matter at length supported by law. I have also gone through their pleadings and record of the case carefully. 9. The commonly worded termination letter dated 7.1.2002 was issued to all the candidates which is reproduced as under: "Sh ......................... S/o Sh........................... was appointed Laboratory Attendant by this officer order No. EDN- KGR-E/6 dated 20.4.2000. This appointment was made in consequence to the interview held on 20.2.2000 in this office. It was reported to the Director of Education that the interviews were not held in accordance with the established procedure and certain irregularities had been committed and the process was not fair and was partial. This appointment was made in consequence to the interview held on 20.2.2000 in this office. It was reported to the Director of Education that the interviews were not held in accordance with the established procedure and certain irregularities had been committed and the process was not fair and was partial. The Director of Education on receipt of the report instituted an inquiry into the matter and after the enquiry it was found that the selection process was not fair and proper procedure was not followed. The record was tampered with to manipulate the selection process to give benefit to the near and dear ones of the then DEO (now retired) and the then office Superintendent. In view of the enquiry findings the Director of Education has set aside the selection proceedings and has declared it null and void ab initio of this order No. EDN-H (25) B (15) - 1/2001 (IX) S.S. Atwal dated 4.1.2002 and has directed the undersigned to take appropriate action in the matter. Now in persuance to the directions contained in the above referred letter No. EDN-H (25) B (15) - 1/2002 (IX) SS Atwal dated 4.1.2002 of the director of education and keeping in view the terms and conditions of appointment of the above candidate as per conditions No. 7 in particular vide which it has been mentioned that the appointment can be terminated any time with one months notice on either side without assigning any reason and as per provisions of sub rule (1) or rule 5 of the Central Civil Services (Temporary Service) rules, 1965, the services of Shri.................................... S/o Sh.................................. Senior Secondary School ....................District Kangra are hereby terminated forthwith and direct that he is entitled to claim pay plus allowances for the period of one month at the same rates which he was drawing then immediately before the termination of his services". 10. The learned Additional Advocate General has submitted that there is no stigma attached in the impugned order and he has relied on two case laws i.e. Secretary, Ministry of works and Housing Govt. of India and others Vs. Mohinder Singh Jagdev and others reported in (1996) 6 SCC 229 and Union of India Vs. Bihari Lal Shahoo reported in 1997(2) SLR 523. The facts of both these cases are similar. In both these cases the Criminal Proceedings were initiated. of India and others Vs. Mohinder Singh Jagdev and others reported in (1996) 6 SCC 229 and Union of India Vs. Bihari Lal Shahoo reported in 1997(2) SLR 523. The facts of both these cases are similar. In both these cases the Criminal Proceedings were initiated. The services were simultaneously terminated under the provisions of rule 5 of the Temporary Service Rules. In both these cases the persons were acquitted by the Court. They approached the Court after acquittal. It was in this context that the apex Court observed that the acquittal does not by itself entitled for re-instatement in service, therefore, these judgements are not applicable in the facts and circumstances of the cases in hand. 11. On the perusal of the above impugned order it is clear that the impugned action is based on enquiry report as per which, the record was tampered with no manipulate the selection process and to give benefit to the near and dear ones of the then DEO (now retired) and the then office Superintendent. This averment of the respondents at the same time connote the connivance with some of the applicants, which of course, is a mis-conduct, the impugned order is thus stigmatic in nature and the impugned order this (Sic-thus), attracts the provisions of Article 311 of the Constitution. 12. Admittedly, it was mis-conduct of the applicants which from the basis of their termination under the provisions of Rule 5.1 of the service Rules (temporary service) Rules, 1965. The law is well settled that this provision can be invoked only in case of termination simpliciter. Where the mis-conduct finds (Sic-forms) the basis of termination, the provisions of Article 311 of the Constitution of India, CCS (CCA) Rules and principles of natural justice come into play. The s following judgments of the Apex Court establish the relevancy in the present context: 1. AIR 1986 SC 1108 Jagdish Prasad Vs. Sachiv Zila (para 9) Ganna Committee, Musaffarangar and another which is as under: "The order of termination was made by the Secretary, District Cane committee, Muzaffarnager on October 28,1976 immediately after the receipt of the reply to the show cause notice by the petitioner- appellant. AIR 1986 SC 1108 Jagdish Prasad Vs. Sachiv Zila (para 9) Ganna Committee, Musaffarangar and another which is as under: "The order of termination was made by the Secretary, District Cane committee, Muzaffarnager on October 28,1976 immediately after the receipt of the reply to the show cause notice by the petitioner- appellant. There is nothing to show that the petitioner- appellant was provided with the relevant documents showing that the proceedings was started against him of his involvement in the corruption case while in the office of the U.P. Government Roadways, nor the Assistant General Manager of the said Roadways who passed the order of termination of the services simpliciter on the basis of terms and conditions of service after offering him one months salary in lieu of notice was examined. It is needless to say in such circumstances that barring the issuance of show cause notice, the elaborate procedure prescribed by regulations 1968 of the UP. Cane Co-operative Service Regulations 1975 was not followed. On a plain reading of these Regulations, it is quite clear and apparent that the petitioner/appellant has to be communicated the charges in writing as well as the statement of allegations forming the basis of each of the charges and the evidence proposed to be considered in support of each of the said charges. Then the delinquent employee has to be called upon by the Enquiry Officer to submit his explanation in writing in respect of each of the charges within the prescribed, time and he has to be asked whether he desires to be heard in person or to produce any evidence documentary or oral or to examine or cross examine any witness of his defence. He will have to be given inspection of relevant record, if he so desires. The said regulations further provides that the delinquent official is to be given a personal hearing and he will be allowed to cross examine witnesses if he so likes. The Enquiry Officer after hearing the delinquent employee and examination of the witnesses produced by him in his defence should submit his report of the disciplinary authority given his findings on each of the charges and recommending punishment. The competent authority if proposes dismiss the officer or to remove or reduce him on rank, has to give him another opportunity against the proposed punishment. Thereafter the final order imposing the punishment can be made. The competent authority if proposes dismiss the officer or to remove or reduce him on rank, has to give him another opportunity against the proposed punishment. Thereafter the final order imposing the punishment can be made. This elaborate procedure has not at all been followed or adhered to in the instant case. It is evident that the appellant was not given any opportunity of hearing at all before making the impugned order of termination of his service on the ground that he concealed the fact of his removal from the service under the UP. Government Roadways on the charge of corruption at the time when he applied for the post of clerk under the 8 section Muzafamagar. This order of termination is not an innocuous order, but is an order which on the face of it casts stigma on the service career of the appellant and it is in effect an order of termination on the charges of concealment of the facts that he was removed from his earlier service under UP. roadways on charges of corruption. This order undoubtedly is penal in nature, having civil consequences and it also prejudicially affects his service career. Further more this order of termination is considered alongwith the show cause notice will clearly reveal that the order of termination in question is not an innocuous order for doing away with the services of the temporary employee, like the appellant petitioner in accordance with the terms and conditions of his service. This order, is therefore, per se, illegal, arbitrary and in breach of the mandatory procedure prescribed by Regulations 68 of the UP Cane Co-operative Service Regulations 1975. The order made is also utter violation of the principles of audi alteram partem. The findings of the High Court that no disciplinary departmental proceedings have been taken against the petitioner-appellant and the petitioner was afforded opportunity before his service was terminated are liable to be set aside inasmuch as these findings were arrived at without at all considering the relevant materials produced before the Court". 2. AIR, 1987 SC 2408 Ravinder Kumar Misra, Versus State Handloom Corporation Ltd. and another. Para: 15: "It cannot be disputed that temporary services can be terminated by notice. 2. AIR, 1987 SC 2408 Ravinder Kumar Misra, Versus State Handloom Corporation Ltd. and another. Para: 15: "It cannot be disputed that temporary services can be terminated by notice. The order of appointment in the appellants case made it abundantly clear that with a months notice or payment of salary in lieu of notice such termination could be effected by either side. Rule 63 of the Corporation Rules made in exercise of Art. 127 of the Articles of Association of the Uttar Pradesh State Handloom corporation Limited recognised such a power the rules provides: "1. The appointing authority may at any time during the pendency of the temporary tenure, terminate the services of a temporary employee by giving him one months notice or emoluments for such lesser period by which the notice falls short of one month. 2. The temporary employee, on his part shall have the option of quitting service by giving one months notice to the appointing authority or paying to the Corporation an amount equal to his one months pay............" The order of termination of the services in this case is indeed innocuous. The appellant is not entitled to be protection of Art. 311(2) of the Constitution not being a member of a civil service of the Union or a State nor holder of a Civil post under the State but his own service Rules provide under R. 68 that if the punishment of discharge or dismissal is imposed, an enquiry commensurate with requirements of natural justice is a condition precedent, Admittedly, no such enquiry has been held. The question that crops up here for determination, therefore, is whether the impugned order was an order of termination simplicitor or really amounted to an order of dismissal. In Purshotam Lal, Dhingra Vs. Union of India 1958 SCR 828: (AIR SC 36 at pp 49-50) a constitution Bench of this Court stated: "The use of expressions terminate or discharge is not conclusive. Inspite of the use of such innocuous expressions, the Court has to apply the two tests mentions above, namely, (1) whether the servant had a right to the post, or the rank, or (2) whether he has been visited with civil consequences of the kind herein before referred to? Inspite of the use of such innocuous expressions, the Court has to apply the two tests mentions above, namely, (1) whether the servant had a right to the post, or the rank, or (2) whether he has been visited with civil consequences of the kind herein before referred to? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311 which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant". This view has been approved by another Constitution Bench of this Court in Chamklal Chimanalal Shah Versus Union of India (1964) SCR 190: (AIR 1964 SC 1854). After indicating approval, wanchoo, J. as he then was, spoke for the Constitution Bench thus (at pp 1861-62 of AIR): "It is well known that Government does not terminate the service of a public servant, be he even a temporary servant without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case, there is nothing further to be said and his services terminate when the post comes to an end. Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post created for a temporary period comes to an end. But besides the above, the government may find it necessary to terminate the services of a temporary servant it is not satisfied with his conduct or his suitability for the job and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to Government. But besides the above, the government may find it necessary to terminate the services of a temporary servant it is not satisfied with his conduct or his suitability for the job and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to Government. It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or mis-conduct, in which case even though the servant may be temporary, he will have the protection of Art. 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the Government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An Enquiry Officer (who may be himself in the case where the appointing authority is other than the government) is appointed who hold enquiry into the charges communicated to the servant concerned after taking his explanation and his enquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant.............." "Generally therefore, a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy Government that there is a reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason. Therefore, when a preliminary enquiry of this nature is held in the case of a temporary employee or a government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry (which generally follows such a preliminary enquiry) when the Government decides to frame charges and get a departmental enquiry made in order that one of the three major punishment already indicated may be inflicted on the Government servant. Therefore, so far as the preliminary enquiry is concerned, there is no question of its being governed by Art. 311(2) for that enquiry is really for the satisfaction of Government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary Government servant or a servant holding higher rank temporarily to which he has no right. In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a Government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three punishment mentioned therein. Such preliminary enquiry may even be held as ex parte, for it is merely for the satisfaction of the government, though usually for the sake of fairness, explanation is taken from the servant concerned even as such an enquiry". Both Parshotam Lal Dhingras case (supra) and Champaklals case (Supra) were referred to and relied upon in Shamsher Singh Versus State of Punjab (1975) 1 SCR 814: (AIR 1974 SC 2192). This is a case which was heard by a 7 judge bench, Ray, C.J. who spoke for the majority of five considered all the cases rendered by this court till then couching on the point and at page 841 (of SCR): (at p. 2208 of AIR) of the Reports stated as follows: "The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in fraction of the provision of Art. 311. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in fraction of the provision of Art. 311. In such a case the simplicity of the form of the order will not give any sanctity". In Shamsher Singhs case (supra) the ratio of the two earlier Constitution Bench judgements was approved. On facts it was found that the order of termination though innocuous in form was really an order by way of punishment removing the appellant from service on the basis of charges of gross misconduct found to have been established by an ex-parte enquiry conducted by the SP vigilance that the appellants services were terminated. The Court found that the enquiry by the SP Vigilance was essentially and in character and object different from the informal inquiry into the suitability of the appellant. Ray. CJ in Shamsher Singhs case (supra) further pointed out: "The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment............... A probationer whose terms of services provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Art. 311(2)" "An order terminating the services of a temporary servant or probationer under the rules of Employment and without anything more will not attract Art. 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Art. 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct", In Regional Manager V. Pawan Kumar Dubey, (1976) 3 SCR 540: (AIR 1976 SC 1966), it was observed by this court thus (at pp. 1769 of AIR: "We think that the principles involved in applying Art. 311(2) having been substantially explained in Shamsher Singhs case (AIR 1974) SC 2192 (supra) it should no longer be possible to urge that Sugher Singhs case, (AIR 1974 SC 423) could give rise to some mis apprehension of the law, indeed we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the differing circumstances and facts of various cases which have come upto this court could create the impression some times that there is some conflict between decisions of the Court. Even where there appears to be some conflict, it would, we think vanish when the ratio decidendi of each case is correctly underrstood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional on different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts..............." In para six in Ravinder Kumars case it has further been observed that: "As we have already observed, though the provisions of Art. 311(2) of the constitution do not apply, the Services Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal. In several authoritative pronouncements of this Court, the concept of motive and foundation has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon, if the termination is considered to be punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should terminated. It may also be necessary to found out whether the officer should be tried for some more time on temporary basis. Since both in regard to temporary employee or an officiating employee in a higher post such an assessment and leave a record of its view the same should not be available to be utilised to made the order of termination following such assessment punitive in character. In a large democracy as ours administration is bound to be impersonal and in regard to public officers whether in Government or public Corporation, assessment have got to be in a writing for purposes of record. In a large democracy as ours administration is bound to be impersonal and in regard to public officers whether in Government or public Corporation, assessment have got to be in a writing for purposes of record. We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made soon thereafter must take the punitive character". The Honble apex Court in 1984 (1) ATC 428 titled as Anoop Jaiswal Vs. Government of India has held, that the discharge from the government service by an innocuous order on account of mis-conduct on the part of the probationer is violative of Article 311(2) of the Constitution of India". 13. Similarly in (1986) 3 SCC 277, titled as Jarnail Singh and others Vs. state of Punjab and others the Honble Apex, court has held that wherever mis-conduct forms basis for termination, such termination is illegal, if not done in accordance with Article 311(2) of the Constitution of India, similar views were held in (1996) 1 SCC 441 titled as Union of India and Others Vs. Jaya Kumar Parida and in Babu Lal Vs. State of Haryana and others (1991) 2 SCC 335. 14. In the factual background of this case, it cannot be said that in the foundation of order, motive was not to punish the applicants, In other angle, this means is that not all the applicants are related to the DPEO or the office Superintendent. Some of the applicants have even crossed the upper age limit for government job. They have served for about one year and ten months. There is nothing against them. It was only the matter of course that their service after about two months would have been turned in a substantive post. Their names from Regional Employment Exchange have been scrabbed even they have lost their seniority in the Employment Exchanges. To deprive them of their job, in this manner amounts to taking away their livelihood, arbitrarily, which is violative of Article 21 of the constitution. 15. The Honble Apex court in D.K. Yadav Vs. M/S JMA Industries Ltd. 1993 (3) SCT 527 has held that: "It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. 15. The Honble Apex court in D.K. Yadav Vs. M/S JMA Industries Ltd. 1993 (3) SCT 527 has held that: "It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career 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 DTC Vs. DTC mazdoor Congress and Ors (Supra) the constitution bench per majority held that termination of the services of a workman giving one months notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside." The Honble Apex Court in case titled as Basudeo Tiwaery V. Sido Kanhu University (SC) reported in 1998 (8) 322 has held that: Para 7: "Several contentions have been addressed by learned counsel on either side. However, for the purpose of disposal of this appeal, it is suffice to consider only one aspect of the matter and that is, whether the appellant had been given an opportunity of being heard before terminating his services and in the absence of the same whether such termination is valid. The High Court took the view that the appointment of the appellant made by the Syndicate of the University by its resolution dated 24.1.1986 is illegal and on that basis took the view that the termination of the services was in order but did not examine the aspect with which we are concerned in the present case as to the on-observance of Audi Alterm Partem. Para-8: "the law is a settle that non-arbitrariness is an essential facet of Article 14 pervedaing the entire realm of State Action governed by Article 14 it has come to be established, as a further corollary that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a constitution Bench of this Court in Delhi Transport Corporation V. DTC Mazdoor Congress, reported in AIR 19991 SC 101." Para-9: "In the order to impose procedural safeguard, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing - it may be implied from the nature of the power- particularly when the right of a party is affected adversely. The justification for reading such a requirement is that Court merely supplies omission of the legislature, (vide Mohinder Singh Gill and Anr. V. The Chief Election Commissioner and ors. AIR 1978 SC 851) and negation or implied exclusion, (vide S.I. Kapoor V. Jagmohan & ors AIR 1981 SC 136." Para-10: "In the light of these principles of law, we have to examine the scope of provision of Section 35 (3) which reads as follows: "35 (3) Any appointment or promotion made contrary to the provisions of the Act, Statutes, rules for regulations or in any irregular or unauthorised manner shall be terminated any time without notice". "The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes; rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, rules, Statures arid Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act., statures, rules or regulations etc. a finding has to be recorded and unless, such a finding is recorded the termination cannot be made, but to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statures, rules or regulations etc. a finding has to be recorded and unless, such a finding is recorded the termination cannot be made, but to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statures, rules or regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. if in a given case such exercise is absent, the conditions preceding stands unfulfilled. To arrive at such a finding necessarily enquiry the person Whose appointment is under enquiry will have to be issued to him. If notice is not give to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just fair or reasonable as noticed by this court in D.T.C. Mazdoor Sabhas case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, Statute, rule or regulation etc. and it is only on such a Conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read". "Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustanted". 16. Admittedly, no opportunity was given to the applicants before terminating their services. Not all the applicant are related to the DEO and to the then Office superintendent. The interest of justice, fair play and equity demands that opportunity should have been given to the applicants before terminating their services. The impugned termination is not simpliciter and it castes stigma. In view of the above discussions, the present original Applications are allowed and the impugned order of termination is quashed - applicants will be adjusted against their salary. The interest of justice, fair play and equity demands that opportunity should have been given to the applicants before terminating their services. The impugned termination is not simpliciter and it castes stigma. In view of the above discussions, the present original Applications are allowed and the impugned order of termination is quashed - applicants will be adjusted against their salary. However, the respondent department is at liberty to hold proper enquiry and take action in accordance with rule. With these observations, the Original Application are disposed. Copy of this order be placed in every Original Application which has been tagged with this Original Application. No order as to costs.