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2017 DIGILAW 1666 (ALL)

Rahman Bakhsh Mansoori v. Union of India

2017-07-17

SIDDHARTHA VARMA

body2017
JUDGMENT : SIDDHARTHA VARMA, J. 1. This is a plaintiff's second appeal against the judgment and decree of the First Appellate Court dated 13.10.1983. Having lost from both the courts below, the second appeal was filed and was admitted on the following substantial questions of law : (1) Whether the order of termination was by way of punishment? (2) Whether the appellant was entitled to the benefits of Article 311? or and (3) Whether the order of termination is illegal in the circumstances of the case? 2. The plaintiff-appellant was a Central Government employee and was appointed as a Lineman on 26.4.1978 at Babina, under the Garrison Engineer, Military Engineering Service, Babina, District Jhansi. While performing his duties he fell down from an electricity pole on 8.9.1978 and was admitted in a hospital at Babina and, therefore, could not attend to his regular job. Eventually on 28.9.1979 without assigning any reason, his services were done away with effect from 29.9.1979. The order is being reproduced herein as under : “Your services are hereby terminated with effect from 29 Sep 1979(AN) as your services are no longer required by this department.” 3. Aggrieved by the order, the appellant filed a suit being Original Suit No. 261 of 1980. Upon its dismissal, the first appeal was filed which was also dismissed on 13.10.1983. 4. The learned counsel for the appellant has submitted that the question of law as was formulated by the First Appellate Court was wrongly decided by it and that in the instant second appeal very important substantial questions of law are involved, which if are decided would result in the decreeing of the suit. Before the First Appellate Court, the question which was to be decided was as to whether the services of the appellant could be terminated without any enquiry i.e. without adhering to the principles of natural justice. While deciding the question it was held by the First Appellate Court that as the appellant was a temporary employee, his services could have been terminated at any point of time without adhering to the principles of natural justice as contained in Article 311 of the Constitution of India. 5. While deciding the question it was held by the First Appellate Court that as the appellant was a temporary employee, his services could have been terminated at any point of time without adhering to the principles of natural justice as contained in Article 311 of the Constitution of India. 5. Learned counsel for the plaintiff-appellant argued that the services of the plaintiff were not done away with by just a simple order of termination saying that the appellant's services were not required but they were done away with because the defendants/respondents were not satisfied with his work. To bolster his argument, learned counsel for the appellant referred to paragraph-3 of the written statement, which is being reproduced herein as under : “That with regard to para 3 of the plaint, it is stated that para 3(b) of the appointment order runs as under :- You will be on probation for a period of two years from the date of appointment which may be extended at the discretion of the competent authority. During this period, your services can be terminated without notice by the competent authority. Failure to complete the period of probation to the satisfaction of the competent authority will render you liable to be discharged from service.” “The work of the plaintiff was not satisfactory, hence his services were terminated. The facts stated by the plaintiff in para 3 are wrong, baseless and concocted.” 6. The learned counsel for the appellant submitted that from the material on record of the case (in the written statement), it can be gleaned out that his termination resulted owing to certain shortcomings in his work and, therefore, a stigma was cast on his career. This being the case, his services could not have been done away with without adhering to the principles of natural justice. 7. In reply, learned counsel for the respondent-Union of India has submitted that the order of termination was an innocuous order of simple termination of service of the appellant. 8. I have heard the learned counsel for the parties and perused the record. 9. A perusal of paragraph-3 of the written statement clearly shows that the appellant's services were done away with as it was found that the work of the plaintiff was not satisfactory. This averment in the written statement would amount to a stigma to the service record of the plaintiff-appellant. 9. A perusal of paragraph-3 of the written statement clearly shows that the appellant's services were done away with as it was found that the work of the plaintiff was not satisfactory. This averment in the written statement would amount to a stigma to the service record of the plaintiff-appellant. This being the case it was mandatory that the respondents should have taken recourse to Article 311 of the Constitution of India and should have terminated his services after a proper departmental enquiry. This is also what has been held in 1986 (3) SCC 277 (Jarnail Singh and others vs. State of Punja and others), (1999) 3 SCC 60 (Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others) and (2000) 3 SCC 239 (V.P. Ahuja Vs. State of Punjab and others). Paragraphs-35 and 46 of the decision rendered in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others (supra) are relevant for our purposes, which are being reproduced herein as under : "35. The above decision is, in our view, clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma." “46. Learned senior counsel for the respondent submitted on the basis of State of Haryana vs. Jagdish Chander [ 1995 (2) SCC 567 ] that merely because an order of termination was set aside on grounds of lack of opportunity, it was not necessary to direct reinstatement and backwages. Reliance in Jagdish Chandra's case was placed upon Managing Director, ECIL v. B. Karunakar [ 1993 (4) SCC 727 ]. It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander's case following Karunakar's case. Reliance in Jagdish Chandra's case was placed upon Managing Director, ECIL v. B. Karunakar [ 1993 (4) SCC 727 ]. It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander's case following Karunakar's case. But it has to be noticed that in Karunakar's case, there was a regular departmental inquiry but the inquiry report was not given to the officer. This Court directed the report to be given and set aside the proceedings from that stage and stated that no order for reinstatement or backwages need be passed at that stage. But in cases like the present where no departmental inquiry whatsoever was held, Karunakar's case, in our view, cannot be an authority. As to backwages, on facts, the position in the present case is that there is no material to say that the appellant has been gainfully employed. The appellant is, therefore, entitled to reinstatement and backwages till the date of reinstatement from the date of termination and to continuity of service. Point 4 is decided accordingly.” 10. Paragraphs-7 and 8 of the decision rendered in V.P. Ahuja Vs. State of Punjab and others (supra) also would be relevant to arrive at a correct decision. They are being reproduced herein as under : "7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.” “8. The affidavits filed by the parties before the High Court as also in this Court indicate the background in which the order, terminating the services of the appellant, came to be passed. Such an order which, on the face of it, is stigmatic could not have been passed without holding a regular inquiry and giving an opportunity of hearing to the appellant.” 11. In the instant case, the contents of paragraph-3 of the written statement clearly show that the appellant's services were done away with as the defendant-respondent had found his work unsatisfactory. This being the case, it was imperative that they should have taken recourse to the provisions of Article 311 of the Constitution of India. This having not been done, the order of termination was bad in law. 12. The second appeal is allowed. The judgments and decrees of the courts below are set aside. This being the case, it was imperative that they should have taken recourse to the provisions of Article 311 of the Constitution of India. This having not been done, the order of termination was bad in law. 12. The second appeal is allowed. The judgments and decrees of the courts below are set aside. The suit is decreed. The plaintiff-appellant shall be entitled to all consequential benefits, which would accrue to him because of the decreeing of the suit.