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2020 DIGILAW 454 (JK)

Fayaz Ahmad Kalas v. JK State Forest Corporation

2020-09-01

ALI MOHAMMAD MAGREY

body2020
JUDGMENT Both these petitions, being SWP No.352/2012 and 354/2012, arise out of the orders passed by the Managing Director, J&K State Forest Corporation (hereinafter referred to as ‘the respondent-Corporation’), viz. SFC Order No. 62 of 2012 dated 24th of February, 2012 and SFC Order No. 63 of 2012 dated 24th of February, 2012, respectively, whereby the services of the petitioners as Grading Assistants/ Attendants have been disengaged. Accordingly, having regard to the fact that both these petitions involve similar questions of facts and the law, same have been clubbed together for decision. 2. The petitioners claim to have been appointed in the respondent- Corporation way back in the year 2010 in terms of SFC Order No. 238 of 2010 dated 26th of April, 2010. After qualifying the ‘Performance Test’ within one month from the date of their appointment, as was provided in their order of appointment, the services of the petitioners were regularized by the respondent-Corporation in terms of SFC Order No. 468 of 2020 dated 30th of June, 2010 and SFC Order No. 518 of 2010 dated 27th of July, 2010. Thereafter, by SFC Order bearing No. 62 of 2012 dated 24th of February, 2012 and SFC Order No. 63 of 2012 dated 24th of February, 2012, the Managing Director, J&K State Forest Corporation/ respondent No.2, terminated the services of the petitioners on the ground that their services as Grading Assistants/ Attendants are no longer required in the respondent-Corporation. It is these termination orders that have been challenged by the petitioners through the medium of these two petitions. 3. By orders dated 5th of March, 2012 passed in SWP No. 352/2012; CMP No. 519/2012 and 29th of February, 2012 passed in SWP No. 354/2012; CMP No. 539/2012, the operation of both the impugned orders has already been stayed by this Court, meaning thereby that the petitioners are continuing to discharge their duties in the respondent-Corporation. 4. Mr Z. A. Shah, learned senior counsel, representing the petitioners in both the petitions, submits that the impugned orders have been issued by the respondent-Corporation in gross violation of the constitutional and legal guarantees available to the petitioners. 4. Mr Z. A. Shah, learned senior counsel, representing the petitioners in both the petitions, submits that the impugned orders have been issued by the respondent-Corporation in gross violation of the constitutional and legal guarantees available to the petitioners. It is submitted that after the petitioners were appointed and their services regularized, the petitioners became permanent employees of the respondent-Corporation and that there is no provision under the rules to terminate the services of a permanent employee on the basis stated in the impugned orders. It is pleaded that the reason supplied in the impugned order for disengagement of the services of the petitioners is a spurious one inasmuch as the nature of duties which the petitioners were performing had not come to an end at the time of the issuance of the impugned orders. It is contended that in terms of their order(s) of appointment, the purpose for which the petitioners have been appointed has been clearly spelt out and there is nothing on record to show that these posts against which the petitioners were appointed have been abolished. The leaned senior counsel has proceeded to contend that in case the services of the petitioners were not required in the respondent-Corporation, the respondent- Corporation could have abolished the posts, however, since the posts exist, the ground of termination/disengagement is factually incorrect and legally misconceived. It is also submitted that the impugned orders are not only an outcome of malafide/ extraneous considerations on the part of the respondent- Corporation, but also have been issued in gross violation of the maxim of “Audi Alteram partem” as no opportunity of being heard has been afforded to the petitioners before issuing the said orders, which is a minimum requirement under law for taking any adverse action against any Government employee/ individual. 5. Reply stands filed on behalf of the respondents in SWP No. 352/2012, resisting and controverting the averments made by the petitioners in their petition. It is stated that the petitioners were initially engaged on causal basis in the respondent-Corporation at the rate of Rs. 200/- per day for the purpose of a project sanctioned by the Department of Handicrafts, Ministry of Textiles, Government of India and since such engagements have to be co- terminus with the project, as such, after closure of the project, all employees automatically lost their engagement as they were working in temporary arrangement and on temporary establishment. 200/- per day for the purpose of a project sanctioned by the Department of Handicrafts, Ministry of Textiles, Government of India and since such engagements have to be co- terminus with the project, as such, after closure of the project, all employees automatically lost their engagement as they were working in temporary arrangement and on temporary establishment. It is pleaded that the impugned orders have been issued after detailed examination of the matter as the petitioners came to be engaged against the posts of Grading Assistants/ Attendants which were non-existent on the date of issuance of the appointment orders of the petitioners. It is also submitted that although, vide SFC Order No. 130 of 2010 dated 4th of March, 2010, the Managing Director had ordered re-designation of 16 posts of Dak Runners as Grading Attendants, but the same did not have the approval of the Board of Director of the respondent-Corporation, as such, the said re-designation of Dak Runners as Grading Attendants was void ab-initio for the simple reason that it had been ordered by the Managing Director without any power or approval of the Board of Directors of the respondent-Corporation. 6. Rejoinder Affidavit stands filed on behalf of the petitioners in relation to the Reply so filed by the respondents. It is stated that vide SFC Order No. 130 of 2010 dated 4th of March, 2010, 16 posts of Dak Runners were re-designated as Grading Assistants in the Pay Band of Rs. 4440-7400 with Grade Pay of Rs. 1300/-, with corresponding reduction in the overall strength of Dak Runners, and that the appointment of the petitioners has been made as Grading Assistants on 30th of June, 2010. It is, thus, contended that it is totally incorrect on the part of the respondent-Corporation to state that the petitioners were appointed against ‘non-existent’ posts. It is averred that the appointment of the petitioners has been approved by the Chairman of the respondent-Corporation. 7. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. 8. It is averred that the appointment of the petitioners has been approved by the Chairman of the respondent-Corporation. 7. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. 8. At the very outset, what requires to be stated herein this case is that although various contentions were raised by the learned senior counsel for seeking quashing of the impugned orders, yet the primary and the most important one is whether there had been violation of principles of natural justice on the part of the respondent-Corporation in the process of disengaging the petitioners after regularizing their services without giving them any opportunity of being heard. 9. From the perusal of the pleadings placed on record by both the parties, it can be seen from a naked eye that no opportunity of being heard, as provided under the rules, appears to have been given to the petitioners before issuing the impugned orders of disengagement of the services of the petitioners, which services stood already regularized by the respondent- Corporation itself. The petitioners have been simply thrown out by two orders of disengagement without following the due procedure of law, with a premeditated design to divest them of their right of being heard. An opportunity of being heard is the ‘sine-qua-non’ of every order/ decision involving disengagement of the services of Government servants, besides, reasons justifying so, while issuing the said order, have to be spelt out in detail. However, in the case on hand, the principles of natural justice appear to have been violated with impunity. The defence of the petitioners has been scuttled/ shut by deception and the procedure governing the subject has been given a complete go by. 10. Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection. Our country aims at the goal of achieving a welfare State where everyone is/ has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard. 11. In Canara Bank v. V. K. Awasthy, AIR 2005 SC 2090 the Hon’ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under: “10. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard. 11. In Canara Bank v. V. K. Awasthy, AIR 2005 SC 2090 the Hon’ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under: “10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alter am par tem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vacate interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated: “Eve n Go d di d n ot pass a sentenc e upo n Adam , before he was called upon to make his defence. “Adam”, say s God, “ where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat”. Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.” 12. “Adam”, say s God, “ where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat”. Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.” 12. Admittedly, the ground on which the services of the petitioners stand disengaged in the respondent-Corporation, as reflected in the impugned orders, is that the respondent-Corporation was of the view that the services of the petitioners are no longer required in the Corporation, as such, same are disengaged, meaning thereby that the rules relating to reasonableness, good faith, justice, equity and good conscience, which are a part of law and relate to administration of justice and fairness, have been followed in breach and, resultantly, it has caused miscarriage of justice. Since, as per the pleadings on record, it is forthcoming that the services of the petitioners were regularized in the respondent-Corporation with the approval of the Chairman of the respondent-Corporation after passing of the ‘Performance Test’ on their part, therefore, the respondent-Corporation, all of a sudden, could not have unilaterally issued the disengagement orders of the petitioners solely on the ground that the services of the petitioners are no longer required in the respondent-Corporation. The respondent-Corporation, instead of doing so, in case they had any complaint/ objection with regard to the appointment/ regularization of the services of the petitioners, were obliged under law to give adequate time to the petitioners for seeking their response in respect thereto and, thereafter, pass appropriate orders in accordance with the law governing the subject, which has not been done, thereby resulting in violation of principles of natural justice. 13. Apart from the above, the pleadings of the parties and the record available on the file reveals that the petitioners have been engaged/ appointed under a valid process initiated by the respondent-Corporation with the approval of the competent authority. Seemingly, there has been no violation of any law while making such engagement/ appointment as is projected by the same authority before this Court. The Chairman of the respondent- Corporation has, with fair approach and on the basis of material placed before him by the competent authority, i.e., Managing Director of the Corporation and with a view to achieve the object of the Scheme, accorded the approval which is fair and legal. 14. The Chairman of the respondent- Corporation has, with fair approach and on the basis of material placed before him by the competent authority, i.e., Managing Director of the Corporation and with a view to achieve the object of the Scheme, accorded the approval which is fair and legal. 14. Given the above circumstances, both these petitions are allowed and, by a ‘Writ of Certiorari’, the impugned orders, viz., SFC Order No. 62 of 2012 dated 24th of February, 2012 (subject matter of SWP No. 352/2012) and SFC Order No. 63 of 2012 dated 24th of February, 2012 (subject matter of SWP No. 354/2012), are quashed. The respondents, by a ‘Writ of Mandamus’, are directed to allow the petitioners to continue discharging their services in the respondent-Corporation on the posts they stand appointed and regularized against. 15. Writ petitions disposed of as above, alongwith all connected CMs. 16. Registry to place a copy of this judgment on each file.