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2003 DIGILAW 1583 (ALL)

OM PRAKASH SINGH v. NAGAR PALIKA VARANASI

2003-07-16

R.B.MISRA

body2003
R. B. MISRA, J. Heard Sri Indra Raj Singh learned counsel for the petitioner and Sri Rakesh Bahadur learned counsel for the respondents. 2. In this petition, the order dated 4-1-90 (Annexure-2 to the writ petition) terminating the service of the petitioner by an order of simplicitor has been challenged. 3. It appears that the petitioner is Graduate and by virtue of having essential qualification for the appointment of Safai Hawaldar made an application and the Chairman, Nagar Palika, Varanasi issued an appointment order dated 22-9-89 (Annexure-1 to the writ petition) and the petitioner by virtue of this appointment order resumed duty and started working. According to the petitioner his work and conduct was satisfactory. On 4-1-1990 the Executive Engineer, Nagar Palika, Varanasi issued an order in reference to the resolution No. 63 dated 2-1-90 terminating the service of the petitioner with immediate effect by an order simplicitor. 4. Learned counsel for the petitioner has submitted that the petitioner was appointed in accordance to the procedure prescribed for and he has served for couple of months and his service cannot be terminated without affording the opportunity of hearing behind his back. The petitioner under bonafide belief, submitted application for appointment and was appointed, therefore, there is no fault on his part even if the appointment was not in consonance to the norms, rules or regulations and the petitioner is not allowed to suffer. 5. Counter-affidavit has been filed on behalf of the respondents stating that under Section 75 of the Municipalities Act, the Executive Officer is the appointing authority of the employees of the Nagar Palika in respect of the petitioner and since the initial appointment was made by the Executive Officer and not by the Chairman/president of Nagar Palika and the then Chairman/president, Nagar Palika Sri D. B. Singh made as many as 21 illegal appointments wholly on extraneous consideration and when the complaints were made about the irregular appointments, the State Government got an inquiry conducted and after providing the opportunity of hearing the then Chairman held guilty to the charges levelled against him and the then Chairman was removed. In order to restrain illegal appointments and to misuse the power of Chairman of the Nagar Palika, the State Government issued a notification dated 28-5-88 indicating that not to make any appointment without prior permission of the State Government. In order to restrain illegal appointments and to misuse the power of Chairman of the Nagar Palika, the State Government issued a notification dated 28-5-88 indicating that not to make any appointment without prior permission of the State Government. While the above G. O. dated 28-5-88 was persisting and the Executive Officer in the said Nagar Palika was functioning yet the said Chairman issued the said appointment order dated 22-9-1989 illegally. Since the Chairman/president of Nagar Palika had made an appointment which was void and illegal, therefore, in reference to the resolution to the Board of the Nagar Palika the said order dated 4-1-1990 was passed for which the opportunity of hearing was not necessary to be given. 6. In the rejoinder affidavit futile endeaverance has been made to controvert the contents of the counter-affidavit and to reiterate the averments made in the writ petition. 7. According to the petitioner in the facts and circumstances before cancellation of the appointment the opportunity of hearing was to be given in consonance to principle of natural justice and for this purpose the reliance has been placed by the petitioner on the following cases: (I) Shridhar v. Nagar Palika, Jaunpur, AIR 1990 SC 307 . (II) Shrawan Kumar Jha v. State of Bihar, AIR 1991 (Suppl) (1) SCC 330. (III) Basudeo Tiwary v. Sido Kanhu University and others, AIR 1998 Supreme Court 3261. (IV) Pancham Ram and others v. Chief Engineer, U. P. Jal Nigam and others, 1999 (1) ESC 490 (All.); (1999) I UPLBEC 537. (V) Sanjeev Kumar and others v. State of U. P. and others, 2000 (1) LBESR 213 (All) : 1999 (I) ESC 754 (All.) : (1999) 1 UPLBEC 575 . 8. In Shridhar v. Nagar Palika, Jaunpur (supra) the Supreme Court has held that it is elementary principle of natural justice that no person should be condemned without hearing. In paragraph 8 it was held: - " (8 ). The High Court committed serious error in upholding the order of the Government dated 13-2- 1980 in setting aside the appellants appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioners order had been passed without affording any opportunity of hearing to the appellant, therefore, the order was illegal and void. The High Court committed serious error in upholding the Commissioners order setting aside the appellants appointment. In this view, order of the High Court and the Commissioner are not sustainable in law. " 9. In Shravan Kumars case the appointments were cancelled by the Deputy Development Commissioner on the ground that the Deputy Superintendent Education had no authority to make appointment. The Supreme Court had held that the impugned order of cancelling the appointment was liable to be quashed on the ground that the appellant therein had not been given opportunity of hearing before cancelling his appointment. 10. Basudeo Tewari (supra) is a case in which in accordance with the provisions of Section 35 (3) of the Bihar University Act, 1951 service of writ petitioner was terminated on the ground that the appointment was irregular. Section 35 (3) of the act 1951 provides: "35 (3) Any appointment or promotion made contrary to the provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorised manner shall be terminated at anytime without notice. " 11. Exercising the power under Section 35 (3) of the act 1951 the order was passed which was challenged before the High Court. The Supreme Court in paragraph 12 of the said judgement has observed: " (12) The said provision provides that an appointment could be terminated at anytime 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, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, Statutes, Rules or Regulation etc. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, Statutes, Rules or Regulation 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 is contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. to arrive at such a finding necessarily enquiry notice will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince to 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, AIR 1991 SC 101 . 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, Statutes, Rules or Regulations 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. " 12. The other judgments referred by the Counsel for the petitioner do support the contention of the petitioner that he was entitled for notice and hearing before cancelling his appointment. In the present case since the petitioner has joined and was working, the cancellation of his appointment would have adversely affected his legal right which required a notice so that the petitioner ought to have given an opportunity to have his say. May it be, that the petitioner in his reply could not have stated any fact which would have dispelled the charges levelled, against the selection proceedings but justice must not only be done but should always seems to be done. May it be, that the petitioner in his reply could not have stated any fact which would have dispelled the charges levelled, against the selection proceedings but justice must not only be done but should always seems to be done. In all fairness and in conformity with the principle of natural justice notice ought to have been given to the petitioner. 13. As contended on behalf of the petitioner that the termination of the petitioner has been passed without giving any opportunity of hearing to the petitioner and was thus a gross violation of the principles of natural justice and is liable to be set aside in view of the decision of the Supreme Court in AIR 1999 SC 22 , Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others. 14. According to the petitioner in 2002 (1) UPLBEC 352 , Ram Vikas v. State of U. P. and others, the appointment of employee writ petitioner of Government Medical Hospital was cancelled on the basis of the alleged irregularities in the selection process and on enquiry made for the purpose by higher authorities the Government passed order of cancellation of appointment of writ petitioner. Such cancellation of appointment was held illegal having been passed without opportunity of hearing to the writ petitioner. This Court in para 11 in the said Ram Vikas (supra) has observed as below: "in the present case since the petitioner has joined and was working, the cancellation of his appointment would have adversely affected his right which required a notice on the issues which have been raised in the enquiry report dated 20-4-1996. Petitioner ought to have given an opportunity to have his say. May it be, that the petitioner in his reply could not have stated any fact which would have dispelled the charges levelled against the selection proceedings but justice must not only be done but should always seem to be done. In all fairness and in conformity with the principle of natural justice notice ought to have been given to the petitioner. " 15. In all fairness and in conformity with the principle of natural justice notice ought to have been given to the petitioner. " 15. This Court in the order 23-5-2003 passed in writ petition No. 2973 of 1999, Shashi Kant Pandey v. Executive Engineer, Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and another, has set aside the termination of writ petitioner having been passed on the ground of principle of natural justice even when the initial appointment of the writ petitioner as the Seenchpal was found forged, fabricated and illegal. This Court had directed the Chief Engineer of Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi to issue a fresh notice to the petitioner and after providing proper opportunity of hearing and taking into consideration the records and reply of the writ petitioner and providing opportunity of oral hearing and filing a written statement, to pass a fresh order within the stipulated time. 16. In 1998 (2) LBESR 838 (SC) : JT 1998 (6) SC 55, State of U. P. v. Shatrughan Lal and another it was held : "one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (Para 4)" 17. The case depended on records of the Department only and Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Inquiry Officers, who had been appointed one after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. 18. The Inquiry Officers, who had been appointed one after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. 18. It is also relevant to note that in AIR 1994 SC 2166 , Krishan Yadav and another v. State of Haryana and others, where the selection of Taxation Inspectors was cancelled because the selection process was stinking, conceived in fraud and delivered in deceit, therefore, cancellation of the entire selection was upheld and the plea of innocence of selectees was found not tenable and selectees were not required to repay salary and perks. It was observed in Krishan Yadav (supra) as below: "as regards the selection made without interview, fake and ghost interviews, tempering with the final records fabricating documents, forgery, an inference that all was motivated by extraneous considerations can be drawn. The entire selection thus is arbitrary and is liable to be set aside. The plea that innocent candidates should not be penalised for the misdeeds of others in not applicable to such cases. The effect of setting aside the selection would mean the selectees will have no right to go to the office. Normally they will have to repay the entire salary and perks which they have received from the said office. The Court however refused to order repayment in this case. " 19. Learned Standing counsel has placed reliance on AIR 1997 SC 1629 : JT 1997 (1) SC 243 : 1997 (2) SCC 1 , Ashwani Kumar and others v. State of Bihar and others, where the recruitment in T. B. Eradication Programme of State Government to the post of Class-III and Class-IV employee made in derogation to the prescribed procedure for the recruitment laid down by the State Government and without sanctioned post backed by financial budget approval was found ex-facie illegal and not binding on the State Government and was found not contradictory to the provisions of Article 16 of the Constitution and the employees so recruited and for regularisation in service were treated to be illegal in respect of their entry into service and as a total disregard of recruitment rules or being not an existing vacancy, as such no case of regularisation was possible. The Supreme Court in Ashwani Kumar (supra) observed as below : " (16) So far as the principles of natural justice are concerned it has to be stated at the outset that principles of natural justice cannot be subjected to any strait-jacket formula. They will vary from case to case, from circumstance to circumstance and from situation to situation. Here is a case in which 6000 employees were found squatting in the Tuberculosis Scheme controlled and monitored by Dr. Mallick for the entire State of Bihar and there was no budgetary sanction for defraying their expenditure. At least out of 6000 employees as seen earlier 3750 were totally unauthorised and were squatting against non-existing vacancies. A grave situation had arisen which required immediate action for clearing the stables and for eradicating the evil effects of these vitiated recruitments so that the Tuberculosis Eradication Scheme could be put on a sound footing. xxx Whatever was submitted by the concerned employees was taken into consideration and then the committee came to a firm decision to the effect that all these appointments made by Dr. Mallick were vitiated from the inception and were required to beset aside and that is how the impugned termination orders were passed against the appellants. On the facts of these cases, therefore, it cannot be said that principles of natural justice were violated or full opportunity was not given to the concerned employees to have their say in the matter before their appointments were recalled and terminated. Point No. 3 is, therefore, answered in the negative. " " (17) The initial entry of the employees is itself unauthorised being not against sanctioned vacancies nor was Dr. Mallick entrusted with the power of creating vacancies or posts for the schemes under the Tuberculosis Eradication Programme. Consequently the termination of the services of all these appellants cannot be found fault with. Nor any relief as claimed by them of reinstatement with continued service can be made available to them. " 20. In my respectful consideration the decision of Ashwani Kumar and others (supra) is not applicable to the facts of the present case. As Ashwani Kumars case (supra) the Supreme Court while dealing with the question of natural justice had observed that public notices were given to the petitioners as well as all other effected employees who had submitted their explanations. In my respectful consideration the decision of Ashwani Kumar and others (supra) is not applicable to the facts of the present case. As Ashwani Kumars case (supra) the Supreme Court while dealing with the question of natural justice had observed that public notices were given to the petitioners as well as all other effected employees who had submitted their explanations. In that case, the High Court had directed the State Government to appoint the committee to thoroughly investigate the entire matter in pursuance of which the committee in question had issued notices to all the affected persons and thus after providing opportunity of hearing the report of Committee was finalised. In Ashwani Kumars case against 2500 posts appointments of 6000 persons were made and the Supreme Court in Ashwani Kumar (supra) has observed: "thus the basic principle of natural justice cannot be said to have been violated by the Committee which ultimately took decision on the basis of the personal hearing given to the concerned employees and after considering what they have to say regarding their appointments. Whatever was submitted by the concerned employees was taken into consideration and then Committee case to a firm decision to the effect that all these appointments made by Sri Malik were vitiated from the inception and were required to be set aside and that is how impugned termination orders were passed against the appellant. On the facts of the se cases, therefore, if can not be said that principles of natural justice were violated or full opportunity was not given to the concerned employees to have their say in the matter and before their appointments were recalled and terminated. " 21. In JT 2000 (Suppl. 2) SC 417, Nazira Begam Lashkar and Others v. State of Assam and others, the Supreme Court has held that the persons appointed as Assistant Teachers in Primary Schools without advertisement of any post and without following the provision of the statutory rules, or without constituting the Selection Committee and holding interviews, as such were not entitled to claim any legal right for any appointment. In para 10 of the said decision of Nazira Begam Lashkar (supra) the verdict of Ashwani Kumar (supra) and two cases were referred on behalf of the beneficiaries the first one namely Arun Kumar Rout and Ors. v. State of Bihar and Ors. In para 10 of the said decision of Nazira Begam Lashkar (supra) the verdict of Ashwani Kumar (supra) and two cases were referred on behalf of the beneficiaries the first one namely Arun Kumar Rout and Ors. v. State of Bihar and Ors. , 1998 (2) LBESR 948 (SC) : JT 1998 (4) SCC 490 : 1998 (9) SCC 71 , wherein this Court had indicated that the appointees deserve sympathetic consideration in getting appointment against sanctioned posts on humanitarian consideration and secondly the judgement of H. C. Puttaswamy and Ors. v. The Honble Chief Justice of Karnataka High Court, Bangalore and Ors. , JT 1990 (4) SC 474 : 1991 Supp. (2) SCC 421, whereunder the Supreme Court reviewed the earlier orders of the Court and treated the services of the appointees to be regularly appointed and also after considering the material aspect and observations of the High Court on the following effect that the High Court was persuaded to appoint an Inquiry Committee in view of the allegations of gross irregularities and illegalities committed in the matter of appointment of teachers in different primary schools in different Districts and the said Committee has gone into details and recorded findings that the provisions of the Recruitment Rules have not at all been followed, the High Court has even gone to the extent of recording a finding that there has been no selection, no interview or even fake or ghost interviews and there has been tampering of records and fabricating of documents and since the appointments to the posts were governed by the set of statutory rules, and the prescribed procedure therein had not been followed and on the other hand, appointments have been made indiscriminately, immediately after posts were allotted to different Districts at the behest of some unseen hands, such appointments were not to confer any equitable relief from any Court and with these observation the Supreme Court has also held that it cannot be said that principles of natural justice were violated or full opportunity was not given to the employees concerned to have their way in the matter before their appointments were recalled and terminated. 22. In 1990 (4) SCC 633 , U. P. Junior Doctors Action Committee v. Dr. 22. In 1990 (4) SCC 633 , U. P. Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani and others, where for getting admission in post graduate course a fake judgement of one bench of High Court, Allahabad aborting entrance examination was produced, pursuant to which an order was issued by an another bench of the High Court Allahabad (Lucknow Bench) thereby cancelling the examination of entrance to P. G. course and directing State Government to grant admission on the basis of M. B. B. S. results, such bogus judgement of earlier bench was found not existent therefore order issued pursuant thereto having been made on the basis of misrepresentation was set aside. The Supreme Court in para 5 of B. Sheetal Nandwani (supra) has observed as below : " (5) We are satisfied that there is a deep-seated conspiracy which brought about the fake order from Allahabad, the principal seal of the High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court. The first order being non-existent has to be declared to be a bogus one. The second order made on the basis of the first order has to be set aside as having been made on the basis of misrepresentation. We are alive to the situation that the persons who have been taken admission on the basis of the MBBS results are not before us. The circumstances in which such benefit has been taken by the candidates concerned do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard. " 23. According to the learned counsel for the respondents in the facts and circumstances, providing of opportunity was not necessary before passing the order dated 4-1-1990 which in my respectful consideration is not correct. Since the petitioners initial appointment is said to be not legally made and was said to have not been passed on the ground of the lack of competency of the authority making appointment and for non-observance of the provisions of law applicable at the relevant time, therefore, in view of the observations made above the cancellation of the appointment and passing the termination order dated 4-1-1990 is not legally sustainable. Therefore, order dated 4-1-1990 is set aside. Therefore, order dated 4-1-1990 is set aside. However keeping in view the seriousness of case the Executive Officer, Nagar Palika is directed to issue fresh notice to the petitioner, consider his reply and after providing him the opportunity of hearing, shall pass a speaking reasoned order within six months. Even if the petitioner files written submission, it shall be treated that proper opportunity of hearing has been provided. The petitioners reinstatement and all his consequential benefit in respect of the service shall depend on the order to be passed by the Executive Officer in accordance to the law and in view of observation made above. 24. In the light of above observations, writ petition is disposed of. Petition disposed of. .