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2003 DIGILAW 383 (JK)

Faheen v. University Of Kashmir

2003-12-04

PERMOD KOHLI

body2003
1. Petitioner came to be engaged as Lecturer in the Department of Media Education Research Centre (MERC), on adhoc basis by the respondent No. 1. Some other persons were also engaged as lecturers on adhoc basis in different disciplines in the University, pursuant to selection made by a Committee constituted for the purpose and after the applications were invited through advertisement notice dated 21-8-1990. Petitioner along with some others apprehending their disengagement filed SWP No: 1513/1994, seeking a restraint order in respect to termination of their adhoc services with the further prayer to allow them to continue on the post which they were holding at the relevant time. An interim order dated 21-12-1994 was passed which reads as under: - Z.A. Qureshi. The petitioner stand appointed as Lecturers in the University of Kashmir (Petitioners No. 1 and 2 in Media Education and Petitioner No. 3 in Political Science) in pursuance of advertisement notice dated 21-8-1990, and have been allowed to continue by various orders passed by the competent authority from time to time, till date. The petitioners have the. apprehension that the respondents may not terminate their services without giving them an opportunity of being heard and may not be paid for winter. Issue notice to the respondents returnable within eight weeks time, to show cause as to why this petition be not admitted to hearing. Issue notice in the CMP also, returnable within the same period. In the meanwhile, subject to objections of the other side, the petitioners shall be allowed to continue as Lecturers in their respective departments till further orders from this court. They shall also be paid their salary, and no breaks shall be given in their services. The petitioners are directed to file the required number of registered AD covers within the course of this week, for effecting service upon the respondents. This petition arises from Kashmir province, as such, it is directed to be transferred to the Srinagar wing of this court, for further proceedings. 2. While this petition was pending, the petitioner was terminated vide the impugned order dated 16-12-1999 and his adhoc arrangement was brought to an end. It is this order which is under challenge in the present petition. 3. The grounds of challenge as contained in the writ petition are that the petitioner™s termination is violative of principles of natural justice, fair play and good conscience. It is this order which is under challenge in the present petition. 3. The grounds of challenge as contained in the writ petition are that the petitioner™s termination is violative of principles of natural justice, fair play and good conscience. It is contrary to the order of the court passed in SWP No: 1513/ 1994, the impugned order is arbitrary. 4. During the pendency of the writ petition, a supplementary affidavit was filed wherein, additional grounds of challenge was incorporated to the effect that the order of termination is punitive as petitioner has been terminated on account of alleged absence from duty, for which enquiry was required to be conducted. It is also added that the termination of the petitioner is on account of malafides on the part of the Vice Chancellor because of the reply submitted by him to the show cause notice issued to him. 5. The respondents have filed reply to the original writ petition as also to the supplementary affidavit. In the reply, it is specifically stated that the petitioner did not observe decency as was required. It is also stated that the Vice Chancellor on his visit to some of the Post-graduate departments, also visited MERC on 30-9-1999 and petitioner was found absent from duty. An explanation was sought from him and in reply to the explanation, the petitioner instead if feeling sorry for his absence sent a detailed note to Head of Department, which smacks all kinds of decency. He admitted his guilt in his reply and, therefore, his services were dispensed with. 6. I have heard learned counsel for the parties. The petitioner™s engagement on adhoc basis and his continuance from time to time and later on under interim directions of the court is admitted. The impugned termination order issued by the respondents read as under: - The University of Kashmir, ORDER The services of Mr. Faheen, adhoc Lecturer in the Department of Media Education Research Centre (MERC) are terminated with immediate effect. By order. Sd/- Asstt. Registrar, (Administration/TW)� 7. From the perusal of the aforesaid order, it appears that termination of the petitioner is simpliciter disengagement of adhoc arrangement, as no reasons whatsoever have been indicated in the termination order. Faheen, adhoc Lecturer in the Department of Media Education Research Centre (MERC) are terminated with immediate effect. By order. Sd/- Asstt. Registrar, (Administration/TW)� 7. From the perusal of the aforesaid order, it appears that termination of the petitioner is simpliciter disengagement of adhoc arrangement, as no reasons whatsoever have been indicated in the termination order. However, in the reply filed by the respondents to the main writ petition as also to the supplementary affidavit, it has been clearly stated that the termination of the petitioner is on account of his absence from the Department. The petitioner was asked to explain his absence and in reply he admitted his guilt, besides using indecent language and accordingly on consideration of his reply, his services have been terminated. 8. Mr. Qureshi appearing for the petitioner has vehemently argued that the termination of the petitioner is punitive in nature. It is not disengagement of a temporary/adhoc employee simpliciter. The reply filed by the respondents clearly indicate the action by way of punishment for alleged mis-conduct i.e. absence from duty and using indecent language, therefore, it casts as person upon him. The order is liable to be setaside having been passed without following due procedure or holding enquiry against the petitioner. 9. Mr. Javid Kawoosa, on the other hand, while rebutting the arguments of learned counsel for the petitioner submitted that from the impugned order, it is evident that this is an order of disengagement simplicitor without any stigma or aspersion upon the conduct of the petitioner, therefore, the court cannot interfere against such an order. 10. Though the impugned order do not indicate that the same has been passed on account of any mis-conduct or other reasons. It appears to be simplicitor termination of adhoc arrangement. However, the reply filed by the respondent both to the writ petition and the supplementary affidavit clearly establish that termination of the petitioner is not dis-engagement simplicitor of adhoc arrangement, but his services have been dispensed with on account of alleged mis-conduct. As per allegations, the petitioner was found absent from duty. A show cause notice was issued to him, to which a detailed reply has been submitted by the petitioner, wherein he has specifically admitted that he went to canteen along with some other teachers at the time of visit of the Vice Chancellor. 11. As per allegations, the petitioner was found absent from duty. A show cause notice was issued to him, to which a detailed reply has been submitted by the petitioner, wherein he has specifically admitted that he went to canteen along with some other teachers at the time of visit of the Vice Chancellor. 11. It is true that the petitioner has used absolutely indecent language which is not expected of an educated person, that too a teacher in the University. Use of words like ridiculous letter, absurd� and such like words in respect to action of show cause notice issued to him cannot be brushed aside in any manner. Such a language definitely demonstrate total insubordination on the part of the petitioner and even amount to misconduct. However, in the supplementary affidavit, petitioner has specifically stated that he was to deliver a lecture in the class between 12.30 a.m. to 1.30 p.m. He delivered the lecture and after finishing his class, he went to canteen for a cup of tea, along with some other teachers. It is during this period that the Vice Chancellor visited the Department. Respondents have no where stated that the petitioner did not attend his class and was absent from duty, when he was required to deliver any lecture or take class in the University. Even in the reply filed by the respondents, it has simply been stated that the petitioner was absent from duty, whereas stand of the petitioner was that he did perform his duties and visited the canteen after finishing his class for a cup of tea. 12. It is not disputed that the canteen is situated within the campus. Mr. Kawoosa has vehemently argued that the petitioner was required to seek permission from HOD even for visiting the canteen during the period he is not required to attend any class. On being asked, no rule or regulation has been referred to or placed to show that the petitioner was required to seek permission even for a visit to canteen while he is not required to attend any class. 13. Be that as it may, the termination of the petitioner is on account of allegations of absence from duty. On being asked, no rule or regulation has been referred to or placed to show that the petitioner was required to seek permission even for a visit to canteen while he is not required to attend any class. 13. Be that as it may, the termination of the petitioner is on account of allegations of absence from duty. Though the petitioner in his reply has admitted that he was away to canteen for a cup of tea during the period, the Vice Chancellor visited his Department, but the same cannot amount to admission of "absence from duty". The allegations were required to be enquired into notwithstanding the above admission on the part of the petitioner. Admittedly no enquiry has been held and the petitioner terminated vide the impugned order. Under these circumstances, the question that needs examination is whether termination of the petitioner is disengagement of adhoc service simplicitor or is on account of alleged misconduct on his part? A similar question came up for consideration before the Apex Court in case of Director General of Police and others Vs. Mrityunjoy Sarkar and others, reported in (1996) 8 SCC 280. In the aforesaid case, temporary services were terminated on the allegation of fake and fabricated employment certificate, though the order of termination was an order simplicitor of disengagement of temporary services. The apex court on consideration of the issue held as under: - ........In the discharge order, it was stated that the respondents had exercised the power under Rule 34(b) of the West Bengal Service Regulations (Part I) and the instructions contained in MemoNo.4145(2) dated 22-11-1985 of the Assistant Inspector General of Police, West Bengal It is not in dispute that the Commissioner of Labour in his letter dated 5/7-9-1985 had informed the appellants that the list of the names forwarded by the Employment. Exchange was a fake one and their names were fabricated as they do not correspond to the entries in the Employment Exchange. Consequently, he directed the applicants to take action according to rules. It would thus be clear that the foundation for discharge is production of fake list of persons from the Employment Exchange for recruitment as Armed Reserved Constables. If that is accepted then it would cause a stigma on the respondents for future recruitment as they have produced fictitious record to secure employment. It would thus be clear that the foundation for discharge is production of fake list of persons from the Employment Exchange for recruitment as Armed Reserved Constables. If that is accepted then it would cause a stigma on the respondents for future recruitment as they have produced fictitious record to secure employment. Principles of natural justice require that they should be given reasonable opportunity of representation in the enquiry to be conducted and appropriate orders with reasons in support thereof need to be passed. It is settled legal position and the said procedure has not been followed. Under these circumstances, the High Court had not committed any error in dismissing the appeal. It would be open to the appellants to issue notice to all the respondents and consider their case and then pass appropriate orders within reasons, however, brief they may be, in support thereof within a period of six weeks from the date of the receipt of this order. The said notice shall be given to the respondents stating the grounds on which they seek to discharge them and the respondents are directed to submit their objections, if any, and the material in support thereof within one month thereafter. After receipt of the objections the appellants are directed to consider the objections and pass appropriate orders within six weeks thereafter and to communicate the same to all the respondents with acknowledgement due. The order, as stated earlier should contain concise reasons in support of their conclusions.� 14. Mr. Kawoosa on the other hand has relied upon a judgment of the Apex court in case of Union of India and others Vs. A.P. Bajpai and others, reported in AIR 2003 Supreme Court 923 In the aforesaid case, the services of the employees were terminated in terms of Rule 5(1) of the Central Civil Services (Temporary Service Rules) 1965, the order of termination was termination simplicitor. However, in the reply filed by the respondents, it was stated that the services of the petitioner were not satisfactory. The petitioner whose services were terminated, challenged the termination and the petition filed before the Tribunal was allowed and in appeal before the Apex Court, order of Tribunal was aside and termination was up-held. The Apex Court was of the view that mentioning that services were not satisfactory, does not amount to stigma. The petitioner whose services were terminated, challenged the termination and the petition filed before the Tribunal was allowed and in appeal before the Apex Court, order of Tribunal was aside and termination was up-held. The Apex Court was of the view that mentioning that services were not satisfactory, does not amount to stigma. The facts of the said case are different from the facts of the present case. In the instant case, there is a specific allegation of misconduct therefore, the termination cannot be said to be on account of unsatisfactory service. Wherever the temporary arrangement or temporary service or adhoc service or that of a probationer is required to be dispensed with, it can only be on account of unsatisfactory performance. However, there is a clear distinction between unsatisfactory performance and misconduct. Unsatisfactory performance may not amount to misconduct but where allegations of misconduct are clear and specific, the case cannot be said to be that of unsatisfactory performance and the allegation do amount to stigma against an employee. The court in such circumstances can lift the veil and examine the real basis for termination. 15. In the present case, respondents have themselves disclosed the ground for termination. It also appears that the termination of the petitioner is not only on account of misconduct, but indecent language used by the petitioner in his reply to the show cause notice also appears to have influenced the mind of the Vice Chancellor or for that matter of others who have considered the termination of the petitioner. This cannot be said to be case of termination simplicitor of an adhoc employee. In view of the above, this petition, after being admitted to hearing, is allowed. The impugned order of termination is hereby quashed and it is directed that the petitioner shall be deemed to be in sendee. Quashment of the impugned order will not prevent the respondents from initiating action against the petitioner in accordance with the rules, if they so desire.