Himachal Pradesh High Court
Smt. Lalita Jindal vs State Of Himachal Pradesh And Others on 23 November, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. : 995 of 2020
Reserved on: 16.11.2022
.
Decided on : 23.11.2022
Smt. Lalita Jindal ....Petitioner.
Versus
State of Himachal Pradesh and others
...Respondents.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the petitioner : Mr. B.M. Chauhan, Sr. Advocate
with Mr. Amit Himalvi, Advocate.
For respondents: Mr. Desh Raj Thakur, Additional
Advocate General with Mr. Narender
Thakur, Deputy Advocate General
Satyen Vaidya, Judge (Oral)
By way of instant petition, petitioner has prayed for following substantive reliefs:-
" (i) That the impugned termination order dated 30.04.1006 (Annexure A-2) is void-ab-initio, illegal, unfair and not in accordance with law and such the same be quashed and set aside.
(i) That the applicant be reinstated in service from the date of her illegal termination will all consequential benefits of arrears, seniority and other benefits."
1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 23/11/2022 20:33:44 :::CIS 22. The case of the petitioner in nutshell is that she was appointed as Forest Guard w.e.f. 28.02.1986. She had to proceed on leave w.e.f 07.08.1995 to 09.08.1995, on .
account of ill health of her mother-in-law. She could not rejoin as the health condition of her mother-in-law did not improve. Petitioner applied for extension of leave for 15 days by sending a telegram to respondent No.3. Similar request was once again made on 14.09.1995. Petitioner could not join her duties till 01.05.1996, on account of her domestic circumstances. However, on 01.05.1996, she was informed that her services had been terminated by respondent No. 3, vide order dated 30.04.1996.
3. Petitioner initially assailed her termination by raising industrial dispute. The Industrial Tribunal-cum-
Labour Court, vide award dated 20.09.2012, dismissed the claim of the petitioner by holding the same to be not maintainable. Petitioner challenged the award passed by learned Tribunal before this Court in CWP No. 373/2013.
However, on 30.11.2016, a Co-ordinate Bench of this Court allowed the petitioner to withdraw the claim petition under Industrial Disputes Act, on the premise that remedy of the petitioner was not before Labour Court and liberty was ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 3 granted to the petitioner to approach the appropriate Forum/Tribunal within six weeks from the date of order passed in CWP No. 373/2013. It was further ordered that in .
case petitioner availed such remedy within the time allowed by the Court, the same would be adjudicated upon without going into question of limitation. Thereafter, petitioner filed an Original Application No. 7035 of 2016 before State Administrative Tribunal and on closure of said Tribunal, the application came to be transferred to this Court and was registered as CWPOA No. 995 of 2020 i.e the instant petition.
4. Petitioner has assailed her termination order dated 30.04.1996 being in violation of her constitutional rights. It is submitted on behalf of the petitioner that the impugned order of termination is against the principles of natural justice. The mandate of Article 311 of the Constitution of India, has been violated. No inquiry, whatsoever, was held against the petitioner. As per petitioner, since the consequence of impugned order was punitive in nature, the services of the petitioner could not have been terminated without due process of law.
5. Respondents have contested the claim of the petitioner. It is submitted that petitioner was a temporary ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 4 employee. She was habitual of taking leave on one pretext or the other. The department had sent a telegram to the petitioner on 28.12.1995 asking her to join the duties, but .
she did not respond. Finally, a notice was published in the newspaper on 23.03.1996. She was required to join the duties by 16.04.1996, failing which her services would be terminated. Respondents claim that despite the publication of notice, petitioner did not respond and finally her services were terminated on 30.04.1996, vide order Annexure A-2. It is further submitted on behalf of the respondents that due procedure was followed under CCS (Conduct Rules),1964 before terminating the services of the petitioner.
6. I have heard learned counsel for the parties and have gone through the record.
7. Perusal of termination order, Annexure A-2 reveals that the services of the petitioner were terminated by respondent No. 3 by exercising powers under Rule 5 of Central Civil Services (Temporary Service) Rules,1965. A reference was made to the reminders sent to petitioner asking her to join duties and finally notice published in the newspaper on 23.03.1996, as noticed above.
::: Downloaded on - 23/11/2022 20:33:44 :::CIS 58. Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, reads as under:-
.
"5. Termination of temporary service.
(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;
(b) the period of such notice shall be one month.
Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month.
NOTE:- The following procedure shall be adopted by the appointing authority while serving notice on such Government servant under clause (a).
(i) The notice shall be delivered or tendered to the Government servant in person.
(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post, acknowledgement due at the address of the Government servant available with the appointing authority.
(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the Official Gazette.
(2) (a) Where a notice is given by the appointing authority terminating the services of a temporary Government servant, or where the service of any ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 6 such Government servant is terminated on the expiry of the period of such notice or forthwith the Central Government or any other authority specified by the Central Government in this behalf or a head of .
Department, if the said authority is subordinate to him, may, of its own motion or otherwise, reopen the case and after making such inquiry as it deems fit-
(i) confirm the action taken by the appointing authority;
(ii) withdraw the notice;
(iii) reinstate the Government servant in service; or
(iv) make such other order in the case as it may consider proper.
Provided that except in special circumstances, which should be recorded in writing, no case shall be re-opened under this sub-rule after the expiry of three months-
(i) from the date of notice, in a case where notice is given;
(ii) from the date of termination of service, in a case where no notice is given.
(b) Where a Government servant is reinstated in service under sub-rule (2) the order of reinstatement shall specify -
(i) the amount or proportion of pay and allowances, if any, to be paid to the Government servant for the period of his absence between the date of termination of his services and the date of his reinstatement; and
(ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes."
9. Admittedly, the services of the petitioner were terminated without issuing her show cause notice and providing her opportunities of being heard much less by ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 7 holding a regular inquiry under CCS (Conduct Rules), 1964.
10. On one hand the respondents in their reply .
have submitted that the petitioner was a temporary employee, on the other their stand is that the services of the petitioner were terminated after following due process under CCS (Conduct Rules), 1964. Petitioner has alleged that her termination is not even in accordance with Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.
11. Be that as it may, the Constitutional guarantee envisaged under Article 311 is available even to temporary employees. A three Judges Bench of Hon'ble Supreme Court in Parshotam Lal Dhingra Vs. Union of India, reported in AIR 1958 Supreme Court 36, has held as under:-
"14. Article 311 does not, in terms, say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts. To limit the operation of the protective provisions of this article to these classes of persons will be to add qualifying words to the article which will be. contrary to sound principles 'of interpretation of a Constitution or a statute. In the next place, el. (2) of Art. 311 refers to "such person as aforesaid" and ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 8 this reference takes us back to cl. (1) of that article which speaks of a " person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under .
the Union or a State". These persons also come within Art. 3 10(1) which, besides them, also includes persons who are members of a defence service or who hold any post connected with defence. Article 310 also is not, in terms' confined to persons who are permanent members of the specified services or who hold permanent posts connected with the services therein mentioned. To hold that that article covers only those persons who are permanent members of the specified services or who hold posts connected with the services therein mentioned will be to say that persons, who are not permanent members of those services or who do not hold permanent posts therein, do not hold their respective offices during the pleasure of the President or the Governor, as the case may be-a proposition which obviously cannot stand scrutiny. The matter, however, does not rest here. Coming to Art. 31 1, it is obvious that if that article is limited to persons who are permanent members of the services or who hold permanent civil posts, then the constitutional protection given by cls. (1) and (2) will not extend to persons who officiate in a permanent post or in a temporary post and consequently such persons will be liable to be dismissed or removed by an authority subordinate to that by which they were appointed or be liable to be dismissed, removed or reduced in rank without being given any opportunity to defend themselves. The latter classes of servants require the constitutional ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 9 protections as much as the other classes do and there is nothing in the language of Art. 311 to indicate that the Constitution makers intended to make any distinction between the two classes.
.
There is no apparent reason for such distinction. It is said that persons who are merely officiating in the posts cannot be said to " hold " the post, for they only perform the duties of those posts. The word " hold " is also used in Arts. 58 and 66 of the Constitution. There is no reason to think that our Constitution makers intended that the disqualification referred to in cl. (2) of the former and cl. (4) of the latter should extend only to persons who substantively held permanent posts and not to those who held temporary posts and that persons officiating in permanent or temporary posts would be eligible for election as President or Vice- President of India. There could be no rational basis for any such distinction. In our judgment, just as Art. 310, in terms, makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Art. 311, in our view, make no distinction between the two classes, both of which are, therefore, within its protections and the decisions holding the contrary view cannot be supported as correct."
12. A similar reiteration can be found in Jai Shanker Vs. State of Rajasthan, reported in AIR 1966 Supreme Court 492, wherein it has been held as under:-
::: Downloaded on - 23/11/2022 20:33:44 :::CIS 10"6. It is admitted on behalf of the State Government that discharge from service of an incumbent by way of punishment amounts to removal from service. It is, however, contended that under the .
Regulation all that Government does, is not to allow the person to be reinstated. Government does not order his removal because the incumbent himself gives up the employment. We do not think that the constitutional protection can be taken away in this manner by a side wind. While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other, a person is entitled to continue in service if be wants until his service is terminated in accordance with law. One circumstance deserving removal may be over-staying one's leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made, it is necessary that Government should give the person an opportunity of showing cause why he should not be removed. During the hearing of this case we questioned the Advocate General what would happen if a person owing to reasons wholly beyond his control or for which he was in no way responsible or blameable, was unable to return to duty for over a month, and if later on he wished to join as soon as the said reasons disappeared? Would in such a case Government remove him without any hearing, relying on the regulation ? The learned Advocate General said that the question would not be one of removal but of reinstatement and Government might reinstate him. We cannot accept this as a sufficient answer.::: Downloaded on - 23/11/2022 20:33:44 :::CIS 11
The Regulation, no doubt, speaks of reinstatement but it really comes to this that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of .
reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying, one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by over-staying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing causes why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Art. 31 1. A removal is removal and if it is punishment for over-staying one's Leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 12 is to go against Art. 31 1 and this is what has happened here.
7. In our judgment, Jai Shanker was entitled to an opportunity to show cause against the proposed .
removal from service on his overstaying his leave and as no such opportunity was to him his removal from service was illegal. He is entitled to this declaration. The order of the High Court must therefore be set aside and that of the District Judge, Jodhpur restored. The question of what back salary is due to Jai Shanker must now be determined by the trial Judge in accordance with the rules applicable, for which purpose there shall be a remit of this case to the civil Judge, Jodhpur."
13. Keeping in view the facts in hand, reference can be gainfully made to a judgment passed by learned Single Bench of Allahabad High Court in Ram Kishore Pandey Vs. Govt. of India, reported in 1981 (3) SLR 629, in which it has been held as under:-
"6. Learned counsel for the respondent on the other hand submitted that the plaintiff was a habitual absentee. He had been absenting himself without intimation or prior sanction. Consequently on the facts found by the courts below R. 14 mentioned above was applicable in terms to the plaintiff and as the services of the plaintiff, who was a temporary employee, were terminated in terms of that rule, he would be deemed to have resigned his appointment. Under these circumstances Article 311 of the Constitution of India could not have any application to the case.::: Downloaded on - 23/11/2022 20:33:44 :::CIS 13
7. Having heard learned counsel for the parties, I am of the opinion that the contentions raised by the learned counsel for the appellant are well founded.
.
8. In order to appreciate the controversy it will be necessary to state a few facts. It was not disputed by the defendants at any stage that the plaintiff was not afforded the opportunity contemplated under Article 3??? of the Constitution of India. It is undisputed that before serving the notice of termination dated 21st of November, 1966, the plaintiff was not called upon to show cause against the proposed discharge of his services. The impugned order reads thus:--
"Services terminated with effect from 7-11- 1965 F.N after availing six months leave on medical ground without pay from 7-5-1965 to 6-11-1965."
9. From a perusal of the written statement filed on behalf of the Union of India as well at the aforesaid order terminating the services of the plaintiff, it seems to hare been established beyond doubt that the services of the plaintiff were terminated simply on the ground that he had over stayed the leave or that he had been absent on leave beyond the period permissible under the applicable service rules. It is thus a plain and simple case of discharge of the plaintiff from service on the ground that he absented himself from work beyond the leave available to him.
10. On these facts, I have no manner of doubt that Article 311 of the Constitution of India clearly became attracted to the case of the plaintiff. In Shiv Shanker v. State of Rajasthan (A.I.R 1966 S.C 492), their Lordships ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 14 of the Supreme Court had occasion to consider a somewhat similar situation. There also the services of the concerned employee had been terminated on the ground of his having ever-
.
stayed the leave sanctioned to him His services were sought to be terminated in terms of a service Regulation which was in pari materia with the one with which I am concerned. The plea taken by the Government in that case was that as the services of the concerned employee had been terminated in accordance with the relevant Statutory Regulations. Article 311 could have no application. This contention was repelled by the Supreme Court. Their Lordships observed:--
r "The order of the government terminating the services of the incumbent on the ground of having over-stayed the leave sanctioned to him clearly implied removal from service and it amounted to punishing the incumbent on a specific charge end the fact that there existed a statutory rule entitling the government to terminate the services of an incumbent did not obviate the necessity of complying with Article 311 of the Constitution of India."
11. This decision of the Supreme Court has, been followed in almost all the aforesaid decision cited by the learned counsel for the appellant All the various High Courts dealing with an identical controversy have unanimously and consistently taken the view that Rule 14, or statutory provisions analogous thereto, do not relief the Government of the obligation to comply with the mandate of Article 311 of the Constitution of India.
::: Downloaded on - 23/11/2022 20:33:44 :::CIS 1512. In B.N Tripathi v. State of U.P reported in 1971 Lab. I.C 9??? this court had occasion to consider an identical statutory provision. The controversy was the same. Relying on the decision .
of the Supreme Court in the case of Jai Sharker v.
State of Rajasthan (A.I.R 1966 S.C 492) (supra) this Court held that removal of a Government servant from service for over-staying his leave without complying with the provisions of Art. 311 of the Constitution of India was illegal even though it was sanctioned by the service regulations. This Court also observed that the fact??? that the Government employee was a temporary Government servant made no difference and that the Government was bound to give the opportunity contemplated under Art. 311 of the Constitution of India to the concerned Government servant before terminating his services on the ground of over- staying leave."
14. Though, from the aforesaid exposition of law, it is clear that protection of Article 311 is available even to temporary employees, this Court considers it expedient to ascertain the nature of employment held by the petitioner under respondents. Petitioner was appointed as Forest Guard, vide Annexure A-1 w.e.f. 28.02.1986. The disputed period of her leave started from 07.08.1995, which means that from February 1986 till August, 1995, she had been working on the same post. According to learned Deputy Advocate General, the appointment of petitioner was ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 16 purely on temporary basis and for such argument he has placed reliance on recital in Annexure A-1, which reads as under:-
.
"The appointment being temporary the services of the official are liable to be terminated on one month notice from either side."
15. The fact remained that petitioner had undisputedly worked against the post of Forest Guard r to for more than nine years continuously. It is not the case of respondents that the appointment of petitioner to the aforesaid post was not in terms of R & P Rules framed by the respondents. Rather, the respondents in their reply have submitted that the petitioner was appointed as Forest Guard on temporary basis under the provision of Recruitment & Promotion Rules framed for said category.
It is further submitted by them that the services of the petitioner, therefore, were governed by provision of CCS (Conduct Rules), 1964, as also Recruitment & Promotion Rules and not with the provisions of Industrial Disputes Act. At the time of hearing of the case, learned counsel for the petitioner had made available Recruitment & Promotion Rules for the post of Forest Guard for perusal in this Court. As per these rules, the person appointed as ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 17 Forest Guard was to remain on probation for a period of two years extendable by maximum period of another two years. On facts, it is clear that petitioner had worked for .
much more period than the prescribed period of probation. Her services were not dispensed with within the period of probation. In such circumstances, her services would be deemed to have been confirmed. In such view of the matter also, petitioner having served for such a long period was entitled for being heard before terminating her services in the aforesaid manner.
16. Viewed from another angle, even Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, has not been strictly complied with, in the facts of the instant case. Such rule requires one month prior notice to be issued by Appointing Authority, in case of termination of temporary services of an employee. Notice was required to be delivered or tendered to the government servant in person and where personal service was not practicable, the notice was required to be served through registered post at the address of the government servant and if the notice still remained unserved then by publication in official gazette. In the instant case, respondents have not been ::: Downloaded on - 23/11/2022 20:33:44 :::CIS 18 able to show compliance of aforesaid provision. It can be seen additionally that the appointing authority could terminate the services of the temporary employee under .
aforesaid rule forthwith without issuance of notice, but in such event, the employee became entitled to one month salary plus allowances for the period of notice.
17. In light of above discussion, the petition is allowed to the extent that the termination order dated 30.04.1996, Annexure A-2, is held to be bad in law and the same is accordingly quashed and set aside. However, liberty is reserved to the respondents to proceed against petitioner, strictly in accordance with law, if so advised.
Needless to say, consequences, in accordance with law, shall follow.
18. The petition is accordingly disposed of, so also the pending miscellaneous application, if any.
(Satyen Vaidya)
23rd November, 2022 Judge
(sushma)
::: Downloaded on - 23/11/2022 20:33:44 :::CIS