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2003 DIGILAW 32 (HP)

KALA SAROJ v. STATE OF H. P.

2003-03-05

NARINDER SINGH THAKUR

body2003
JUDGMENT Narinder Thakur, Vice Chairman: - In brief the case of the applicant is that the applicant got a compassionate appointment on 17.7.1998 (Annexure-A/5) in place of her father Shri Rama Nand, who was retired on medical grounds on 30.6.1998. Shortly after appointment of the applicant, a complaint was made wherein it was alleged that the applicant was married to Shri Ramesh Kumar on April 29, 1998 and her brother Shri Lokinder is working in Forest Department. A show Cause notice was issued to the applicant on August 4, 1998 (Annexure-A/6) which was replied by the applicant denying the allegations. She was placed under suspension thereafter on 31.8.2000 which too was revoked on October 17, 2000 on her representation. A charge Sheet was issued on October 17, 2000 (Ann-10), The services of the applicant were done away with on December 20, 2001 (AnnrA/16) under the provisions of Rule 5 (i) CCS (Temporary Services) Rules, 1965. The contentions o the applicant are that the complainant Shri Dushyant Kumar, who was listed witness was the material witness and he was not examined. The unlisted witness S.D.M. (Rural) Shri D.D. Sharma was summoned and examined. Inquiry was not held as per the procedures contained in Rule -14(15) and 14(18) of the CCS (CCA) Rules, 1965. As such violation of mandatory provisions of the rules and principle of natural justice have resulted in grave prejudice to the applicant. 2. On the other hand the case of the respondent department is that the impugned termination has been passed in accordance with the law. The learned Additional Advocate General in support of her case has cited case law reported in 1994 92) SLR 677 titled as Umesh Kumar Nagpal vs. State of Haryana, in which the Honble Apex Court has held that the only ground which justified compassionate employment is the penurious condition of the family of the deceased. In another case reported in 1995 (8) SLR 57 titled as Daya Kaur vs. Haryana State Electricity Board, the Honble Punjab and Haryana High Court has directed to consider the case of the petitioner after observing that the son of the petitioner has legitimate right to be considered for appointment on compassionate ground. In case of 1997 (5) SCC 301 titled as State of HP. vs. Jafli devi the Honble Apex Court has held that where a son of the deceased employee was already in Govt. In case of 1997 (5) SCC 301 titled as State of HP. vs. Jafli devi the Honble Apex Court has held that where a son of the deceased employee was already in Govt. Service, the another son of the deceased employee cannot be given appointment. 3. The above judgments do not help the case of the respondents in as such they are prior to giving of appointments. In the present case admittedly the father of the applicant has categorically stated that his one son is already in job but living separately and does not care or dependants/family members. It was in face of these disclosure of true facts that the respondent department after due deliberation gave appointment to the applicant. Therefore, principle of estopple come into play against the impugned action of respondents. 4. Where any action of the State results in depriving a citizen of his or her right to livelihood, the State is expected to act in a fair manner. The Honble Apex Court in D.K. Yadav vs. Ms. JMA Industries reported in 1993 (3) ST 537 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 of the service of an employee/workman visits with civil consequences of jeopardizing not only his/her livelihood but also career and livelihood of dependants. Therefore, before taking any action put 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 inquiry conducted complying with the principle of natural justice. In DTC vs. DTC Mazdoor Congress and others (supra) the Constitution Bench per majority held that the termination of service of a workman giving one month notice or pay in lieu thereof without inquiry offended Article 14. The order of terminating the service of employee was set aside. Similar observations have been made by the Honble Apex Court in MCD vs. Parveen Kumar Jain reported in 1998 (9) SCC 468. 5. The learned counsel for the applicant also submitted that the impugned order of termination dated December 20, 2001 was passed by the respondent under the proviso to sub-rule (1) of Rule 5 of CCS. (Temporary Service) Rules, 1965. 5. The learned counsel for the applicant also submitted that the impugned order of termination dated December 20, 2001 was passed by the respondent under the proviso to sub-rule (1) of Rule 5 of CCS. (Temporary Service) Rules, 1965. He referred to Rule 9 of the Himachal Pradesh Department of Personnel (Secretariat Administration Services) Clerk (Class-111 Non-Gazetted) Recruitment & Promotion Rules, 1996 which reads as under:- "9. Period of probation, if any two years subject to such further extension for a period not exceeding one year as may be ordered by competent authority in special circumstances and reasons to be recorded in writing." 6. His plea is that the applicant having been appointed as Clerk on July 17, 1998, has completed even the maximum period of probation. The post of Clerk being a non-selection post, she should be deemed to have been confirmed as Clerk and f therefore the CCS (Temporary Service) Rules, 1965 are inapplicable in the case of the applicant. It is also submitted by Shri H.K. Paul, learned counsel for the applicant that the name of the applicant appears at Sr. No. 207 of the seniority list of Clerks as on December 31,2000 circulated by the office of the respondent vide memo dated September 19, 2001. His submission is that the persons junior to the applicant whose names appear from Sr. No. 208 to 317 are in service and the applicant cannot be discriminated by retaining her juniors in service. 7. The respondent department has permitted the applicant to cross the probationary period. As such also the impugned action of respondent department cannot be sustained as the applicant will have to be deem to have become regular. Even when the basis of her termination is alleged misconduct on her part for which she was even served a Charge Sheet, the respondent department could not have adopted the impugned provisions for her termination. 8. The inquiry has not been held properly in as such as the mandatory provisions of CCS (CCA) Rules as contained in Rule 14 (15) and 14 (18) have not been observed. The Honble High court H.P. in its judgment reported in ILR 1982 H.P 384 titled as Nika Ram Thakur vs. State of H.P. has held that under Rule 14 (18) after the close of the case for the disciplinary authority and the Govt. The Honble High court H.P. in its judgment reported in ILR 1982 H.P 384 titled as Nika Ram Thakur vs. State of H.P. has held that under Rule 14 (18) after the close of the case for the disciplinary authority and the Govt. Servant the inquiry officer is required to put General question to the Govt. servant to enable him to explain the circumstances appearing against him. The Punjab and Haryana High Court in case reported in 1992 (1) SLR 146 has held that examining the witness in the departmental inquiry beyond the list of witnesses prejudices the delinquent Officer and amounts to violation of rules of natural justice. The complainant who was a material witness has neither come forth nor examined by the prosecution as such the inquiry is also vitiated. 9. In the above factual and legal backdrop I allow the present Original Application and quash the impugned order. Respondents are directed to take back the applicant in service with all consequential benefits. These directions will be complied with within a period of one month form this order. With these aforesaid observations and directions the Original Application stands disposed of with no orders as to costs.