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2004 DIGILAW 7 (UTT)

RAM CHARAN YADAV v. NAGAR PALIKA PARISHAD, BAJPUR

2004-01-21

RAJESH TANDON

body2004
RAJESH TANDON, J. ( 1 ) HEARD the learned counsel for the parties at length. By the present writ petition the petitioner has prayed for the issue of a writ, order or direction in the nature of certiorari quashing, the order of respondent No. 2 dated october 2, 1998, Annexure-1 to the writ petition. ( 2 ) BRIEFLY stated the facts giving rise to the present writ petition are that the petitioner was appointed as a clerk in the office of Nagar palika Parishad, Bajpur, District Udham Singh nagar on daily wages and he was continuously working since April 10, 1989. On October 2, 1998 an order was served upon him in which respondent No. 2 Executive Officer, Nagar palika Parishad, Bajpur has mentioned that the services of the petitioner has been terminated by oral order of the Chairman of Nagar Palika parishad with effect from September 23, 1998. The order to this effect issued by the Executive officer, Nagar Palika Parishad is quoted below: "vernacular matter omitted. " ( 3 ) THE petitioner has also mentioned that other employees who were working with him have been regularised in the establishment with effect from November 9, 1998. The petitioner has stated that he has filed a Writ Petition No. 8 of 1999 before Allahabad High Court, which was finally disposed of with the direction to the respondent No. 1 to decide the representation of the petitioner with a reasoned order. The respondent No. 1 has rejected the representation of the petitioner on the ground that a petition is pending before the Commissioner Kumaon division. ( 4 ) THE petitioner has moved an application for withdrawal of the petition before the commissioner and the petition was withdrawn vide order dated April 22, 1999 but still the respondent has not passed any order on the representation of the petitioner. Thereafter, the petitioner has again filed a Writ Petition No. 18959 of 1999 before the Allahabad High court, which was disposed of with the direction to the respondent No. 1 to decide the representation of the petitioner afresh in terms of the order dated January 25, 1999. The petitioner has submitted that the respondent no. 1 rejected the representations of the petitioner dated October 13, 1998 and May 31, 1998 in arbitrary manner. ( 5 ) THE respondents contested the writ petition and have filed a counter-affidavit. The petitioner has submitted that the respondent no. 1 rejected the representations of the petitioner dated October 13, 1998 and May 31, 1998 in arbitrary manner. ( 5 ) THE respondents contested the writ petition and have filed a counter-affidavit. It has been admitted by the respondents that the petitioner was appointed on daily wages in the nagar Palika on April 10, 1989 and since then he was continuously working in the Nagar palika Parishad, Bajpur. It has been mentioned that the petitioner has left the work on september 23, 1998 and thereafter did not turn up to work. It has been denied that the respondents either orally or in writing passed any order of termination of the petitioner. ( 6 ) THE petitioner has filed supplementary affidavit along with which he filed original order dated October 2, 1998 signed by the executive Officer, Nagar Palika Parishad, bajpur. ( 7 ) IT has been admitted by the respondents that the petitioner was working in Nagar Palika, bajpur from April 1, 1989 and he has worked there till September 23, 1998. Thus, the petitioner was working in the Nagar Palika parishad, Bajpur for more than nine years. The petitioner has filed copy of Pay Bill Annexure r. A. III in which his name has been shown at serial number 9 and it has been mentioned that he worked 355 days in the year 1990-91, 306 days in 1991-92 and 344 days in 1993-94 and bonus was also paid to him. Thus, the termination of his services by the oral order of the Chairman without giving him any notice or without assigning any reason is illegal. Natural justice requires that the petitioner was entitled to be heard before any order for termination was passed. No opportunity was given to the petitioner for being heard before passing the order against him. The order, therefore, was passed by the respondent No. 1 in utter violation of the principles of natural justice. ( 8 ) THE Apex Court in the case D. K. Yadav v. J. M. A. Industries Ltd. 1993 (3) SCC 259 : 1993-II-LLJ-696, has held as under at p. 700 of LLJ:"5. It is a fundamental rule of law that no decision just be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. It is a fundamental rule of law that no decision just be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner 1978 (1) SCC 405, the Constitution Bench held that civil consequences cover infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehension connotation every thing that affects a citizen in his civil life inflicts a civil consequence. BLACK's LAW DICTIONARY, 4th Edn. Page 1487 defined civil rights are such as belong to every citizen of the State of country. . . . they include. . . , rights capable of being enforced or redressed in a civil action. . . . . In State of Orissa v. Binapani Dei air 1967 SC 1269 : 1967-II-LLJ-266, this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principle of natural justice. In State of W. B. v. Anwar All Sarkar AIR 1952 SC 75, per majority, a seven Judges bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka gandhi v. Union of India 1978 (1) SCC 248, another Bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority, which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way, which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. " ( 9 ) THE Apex Court in the case of Shrilekha vidyarthi v. State ofu. P. AIR 1991 SC 537, has held as under:"it is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every state action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always. "almost a quarter century back, this Court in 5. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always. "almost a quarter century back, this Court in 5. G. Jaisinghani v. Union of India, AIR 1967 sc 1427, indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:"in this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law (see DICEY "law OF the CONSTITUTION" Tenth Edn. Introduction ex ). 'law has reached its finest moments' stated DOUGLAS, J. in United states v. Wunderlick, (1951-342 US 98 : 96 law Ed 113), "when it has freed man from the unlimited discretion of some ruler. . . . . . . . . where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice, Discretion, as LORD mansfield stated it in classic terms in the case of John Wikes (1770-98 ER 327) means sound discretion guided by law. It must be governed by rule, not humour; it must not be arbitrary, vague and fanciful" ( 10 ) IT has been held by a Division Bench of allahabad High Court consisting of Hon'ble Mr. Justice M. KATJU and Hon'ble Mr. Justice U. K. DHAON that a temporary employee is also entitled for all benefits. It must be governed by rule, not humour; it must not be arbitrary, vague and fanciful" ( 10 ) IT has been held by a Division Bench of allahabad High Court consisting of Hon'ble Mr. Justice M. KATJU and Hon'ble Mr. Justice U. K. DHAON that a temporary employee is also entitled for all benefits. It has been observed as under:"the traditional concept has been that a temporary employee has no right to the post vide State of U. P. v. Kaushal Kishore 1991 (1) SCC 691, and Triveni Shanker Saxena v. State AIR 1992 SC 496 : 1992 Supp (1)scc 524 : 1992-II-LLJ-23. However, in our opinion, this traditional concept has now to stand modified in the light of the new interpretation of Article 14 to the constitution given by the Supreme Court in the seven Judge Constitution Bench decision in Maneka Gandhi v. Union of India AIR 1978 SC 597. It has been held in that decision that Article 14 is not only directed against discrimination but also against arbitrariness. Hence, in our opinion, the traditional concept that a temporary employee has no right to the post has now stands modified in view of the new interpretation of Article 14 in Maneka gandhi's case and it can no longer be treated as an absolute concept. " ( 11 ) IN view of the facts and circumstances of the case the termination order could not have been passed without affording any opportunity of hearing to the petitioner. The oral order of termination, therefore, cannot be allowed to sustain and is hereby set aside. The respondents are directed to reinstate the petitioner to his original post. However, there will be no order for back wages to the petitioner. ( 12 ) THE writ petition is accordingly allowed. No order as to costs. --- *** --- .