Rajasthan High Court - Jaipur
Jaswant Singh vs State Of Rajasthan And Anr. on 5 February, 2003
Equivalent citations: RLW2003(3)RAJ1605, 2003(3)WLC359
JUDGMENT Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 6.8.1991 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 17.6.1991 (Annex. 5) passed by the respondent No. 2 Vikas Adhikari, Panchayat Samiti, Pali by which the services of the petitioner were dispensed with and the resolution dated 14.6.1991 (Annex. 6) passed by the Panchayat Samiti, Pali by which a decision was taken against the petitioner as he used to remain absent from duties and the respondent No. 2 yikas Adhikari was authorised to take steps for dispensing with the services of the petitioner, be quashed and set aside and the respondents be directed to reinstate the petitioner in service with all consequential benefits.
2. The case of the petitioner as put forward by him in this writ petition is as follows :-
The petitioner had passed Higher Secondary and S.T.C. examinations conducted in Rajasthan and he was initially appointed as Primary School Teacher in the Panchayat Samiti, Pali on 5,2.1985 on temporary basis and his services were terminated at the end of the academic session 1985. But, later on, he was re-employed in July, 1985 and thereafter, he worked under the Panchayat Samiti and he was made regular vide order dated 19,12.1988 (Annex. 1).
The further case of the petitioner is that on 29.11.1990 he applied for casual leave for three days, but before he could resume his duties, he fell ill and, therefore, he submitted leave application on medical ground.
The further case of the petitioner is that on 9.1.1991, a notice was given to him by the Panchayat Samiti asking his explanation for remaining absent from duties and a reply to that notice was given by the petitioner stating that he was undergoing treat ment:
Thereafter, a notice dated 1.2.1991 (Annex. R/6) was given to the petitioner by the Panchayat Samiti asking him to submit his medical certificate alongwith the application for leave, otherwise under Rule 86(1) of the Rajasthan Service Rules, 1951 (hereinafter referred to as "the RSR"), his past services would be forfeited.
Thereafter, the petitioner vide his application dated 18.2.1991 (Annex. 2) submitted medical certificates, but later on, he again fell ill in the month of March, 1991 and, therefore, he submitted another application on 7.3.1991 to the Headmaster. Primary School, Badera Ka Bas Kherwa, but that application was not available in the record of the Panchayat Samiti. Another application was moved by the petitioner on 27.3.1991 (Annex. 3) for grant of leave, but he could not recover till vacation.
However, when the petitioner reported for duty to the Head Master, Primary School, Badera Ka Bas, Kherwa, he was informed that his services had already been terminated.
On enquiry, the petitioner was told that a notice Annex. 4 dated 20.5.1991 was giveato him and the impugned order dated 17.6.1991 (Annex. 5) by which his service's were dispensed with, was also served on him.
The further case of the petitioner is that he was also supplied with the copy of the Resolution dated 14.6.1991 (Annex. 6) and the letter of the Headmaster dated 24.7.1991 (Annex. 7).
The further case of the petitioner is that from perusing the impugned order Annex.5 dated 17.6.1991, it is clear that the services of the petitioner were terminated simplicitor on the ground that he remained absent from duties without any notice and when his services were dispensed with he was on probation. .
The above orders have been challenged by the petitioner in this writ petition on various grounds arid some of them are as follows :-
(i) That to say that the petitioner was on probation is absolutely wrong as under the order dated 19.12.1988 (Annex. 1), his services were screened and he was made regular and, therefore, termination of services of the petitioner by treating him to be a probationer is an illegal act on the part of the respondents as his services could have been terminated, after giving him a charge-sheet and holding an enquiry against him as contemplated under the provisions of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter referred to as "the Act of 1959"), Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959 (hereinafter referred to as "the Rules of 1959") and the Rajasthan Panchayat Samitis and Zila Parishads Services (Punishment and Appeal) Rules, 1961 (hereinafter referred to as "the Rules of 1961") and since before passing the impugned order Annex. 5 no enquiry as contemplated under the provisions of the abpye Act and Rules was held against the petitioner, therefore, the impugned termination order Annex. 5 is bad in law and liable to be quashed and set aside.
(ii) That under the provisions of the Act of 1959, the Appointing Authority of the petitioner is Panchayat Samiti and the Vikas Adhikari is not the Appointing Authority of the petitioner and therefore, the impugned order Annex. 5 could have not been passed by the Vikas Adhikari and thus, from this point of view also, the impugned order Annex. 5 is without jurisdiction and liable to be quashed and set aside as the Panchayat Samiti only authorised the Vikas Adhikari to take steps, but not authorised to remove the petitioner from service.
(iii) That since the petitioner was a civil servant under the State within the meaning of Article 311 of the Constitution of India, therefore, his services could not have been terminated for the act of misconduct by treating him to be a probationer.
Hence, this writ petition with the prayers as stated above.
A reply to the writ petition was filed by the respondents and it has been submitted by them that the services of the petitioner were never regularised vide order dated 19.12.1988 (Annex. 1) as the proposal for regularisation of services of the petitioner was never confirmed by the State Government and the petitioner was treated as temporary employee only and continued in service of the respondents as temporary and non-selected employee as that fact is evident from the order of the Panchayat Samiti dated 21.6.1989 (Annex. R/l).
Apart from this, the petitioner was habitual of remaining absent from duties and he was informed from time to time and various notices have been served on him and since his services were purely on temporary basis, therefore, his services were terminated by the Vikas Adhikari vide impugned order Annex. 5 and in such a situation, there was no need of serving charge-sheet or holding enquiry against the petitioner.
It has been further submitted by the respondents that no doubt Panchayat Samiti was the Appointing Authority, but Vikas Adhikari could terminate the services of the petitioner on behalf of the Panchayat Samiti as Vikas Adhikari was authorised by the Panchayat Samiti vide Resolution Annex. 6. Hence, the writ petition filed by the petitioner be dismissed.
Apart from the above, during the course of arguments, a preliminary objection was raised by the learned counsel appearing for the respondents that the impugned order Annex. 5 was appealable, but that remedy was not availed by the petitioner and he had directly approached this Court under Article 226 of the Constitution of India and since alternative remedy was available to the petitioner, therefore, this writ petition is not maintainable and liable to be rejected on the ground of availability of statutory alternative remedy.
3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone thrpugh the materials available on record.
4. So far as the preliminary objection of the learned counsel for the respondents that since alternative statutory remedy by way of appeal was available to the petitioner, therefore, this, writ petition is not maintainable, is concerned, on this point the law laid down by the Hon'ble Supreme Court in L. Hirday Narain v. Income Tax Officer, Bareilly (1), may be referred to where it was held that if the petitioner had filed a writ petition instead of availing of statutory remedy and the High Court entertained the petition and gave hearing on merits, in such a situation, the petition should not be rejected on the ground that statutory remedy was not availed of, especially when a long period had passed.
5. Thus, in view of the law laid down by the Hon'ble Supreme Court in the case of L. Hirday Narain (supra), this petition cannot be rejected on the ground of availability of statutory remedy and the preliminary objection of the learned counsel for the respondents is rejected.
6. From perusing the order Annex. 1 dated 19.12.1988, it clearly appears that the services of the petitioner were regularised with effect from 15.11.1988.
7. From the reply of the respondents, it further appears that the order Annex. 1 dated 19.12.1988 was never accepted by the Slate Government, but there is nothing on record to suggest that the order Annex. 1 was ever cancelled by the respondents.
8. A bare perusal of the impugned order Annex. 5 dated 17.6.1991 reveals that there is mention of the fact in it that the petitioner was on probation, while in the reply given by the respondents, they have not uttered a single word that the petitioner was on probation, but they have categorically stated that the petitioner was working on temporary basis meaning thereby when the impugned order Annex. 5 dated 17.6.1991 was passed, the petitioner was not on probation, though from perusing order Annex. 1 dated 19.12.1988, it further appears that the services of the petitioner were regularised with effect from 15.11.1988.
9. From perusing the contents of the impugned order Annex. 5 dated 17.6.1991, it further appears that two notices Annex. R/6 dated 1.2.1991 and Annex. 4 dated 20.5.1991 were given to the petitioner under Rule 86(1) of the RSR and when the reply to these notices were not given by the petitioner, the impugned order Annex. 5 was passed by the respondent No. 2 Vikas Adhikari on 17.6.1991 dispensing with the services of the petitioner.
10. It further appears from perusing the impugned order Annex. 5 that on 14.6.1991, a Resolution (Annex. 6) was passed by the Panchayat Samiti in respect of the petitioner by which the respondent No. 2 Vikas Adhikari was authorised to take steps for dispensing with the services of the petitioner according to the Rules and that Resolution was passed by the Panchayat Samiti on 14.6.1991 and the services of the petitioner were dispensed with on 17.6.1991 vide order Annex. 5.
11. In my considered opinion, the impugned order Annex. 5 dated 17.6.1991 cannot be sustained because of the simple reason that on the date when it was passed, the petitioner was not a probationer and, therefore, the fact of probation mentioned in that order Annex. 5 was wrong and furthermore, the services of the petitioner could have been terminated only after following the procedure prescribed in the Act of 1959, Rules of 1959 and Rules of 1961. Since the punishment of dispensing with services is a major punishment, therefore, that punishment could not have been imposed without holding a proper enquiry. From this point of view also, the impugned order Annex. 5 cannot be sustained.
12. It may be stated here that under Rule 7 of the Rules of 1961, a procedure for imposing major punishment has been given and such procedure has not been followed in the present case and, therefore, the impugned order Annex. 5 is bad in law and liable to be quashed and set aside.
13. Furthermore, even in Rule 86(1) of the RSR, the period of absent from duties can be forfeited, but for removal, initiation of disciplinary proceedings is must, as is evident from Rule 86(3) of the RSR. From this point of view also, the impugned order Annex. 5 cannot be sustained.
14. Apart from this, in my considered opinion, absent without leave constitutes misconduct and if it constitutes misconduct, it would not be open to the employer to terminate services without notice and enquiry or at any rate without complying with the minimum principle of natural justice. In this respect, the decision of the Hon'ble Supreme Court in L. Robert D'Souza v. The Executive Engineer, Southern Railway and Anr. (2), may be referred to. From this point of view also, the impugned order Annex.5 cannot be sustained.
15. The argument of the respondents that since the petitioner was a probationer, therefore, his services could have been terminated without following the procedure prescribed under the Act of 1959 and the Rules of 1959 and 1961, cannot be accepted in this case because of the following two reasons :-
(i) That from perusing order Annex. 1 dated 19.12.1988, it appears that the services of the petitioner were regularised with effect from 15.11.1988 and in no manner, he was probationer.
(ii) That if the petitioner was not a probationer, meaning thereby he was an employee of the respondent Panchayat Samiti other than on probation and, therefore, in such circumstances, his services could not have been terminated in the manner as had been done by the respondents in this case without following the procedure prescribed under the law.
16. For the reasons stated above, the impugned order Annex. 5 passed by the respondent No. 2 Vikas Adhikari by which the services of the petitioner were dispensed with, cannot be sustained and liable to be quashed and set aside.
17. The next question for consideration is when the impugned order Annex. 5 was passed on 17.6.1991 and more than 12 years had passed, whether afresh enquiry as contemplated under the provisions of law, is to be initiated against the petitioner or not.
18. No doubt in the ordinary course it would have been open to the authority to institute a fresh enquiry on reinstatement after the order of termination has been set aside, but I am of the opinion that this is not a case where such procedure should be allowed to be permitted now for the simple reason that more than 12 years have passed now and the petitioner is out of employment and in these circumstances, it would be proper to quash the impugned termination order Annex. 5 and direct the respondents to reinstate the petitioner back in service with immediate effect and there should be no further enquiry into the allegations forming the subject matter which led to passing of the impugned order Annex. 5. In this respect, the decision of the Hon'ble Supreme Court in Dewan Singh v. State of Haryana and Anr. (3), may be referred to.
19. The next question that arises for consideration is in such a case as the present one when the impugned order Annex. 5 was passed on 17.6.1991 and now more than a decade had passed, whether back wages should be allowed to the petitioner or not.
20. On this point, the learned counsel for the petitioner has frankly conceded that so far as the allowing of back wages is concerned, the same may not be allowed. Hence, the petitioner would not be entitled to back wages, but he would certainly be entitled to notional seniority without back wages.
21. For the reasons stated above, since the petitioner was not a probationer and he might be a temporary employee, but his services could not have been terminated in the manner as had been done by the respondents and, therefore, a legal right has accrued in his favour and thus, he is entitled to the relief under Article 226 of the Constitution of India and thus, this writ petition deserves to be allowed and the impugned order Annex. 5 is liable to be quashed and set aside.
Accordingly, this writ petition filed by the petitioner is allowed and the impugned order Annex. 5 dated 17.6.1991 passed by the respondent No. 2 Vikas Adhikari, Panchayat Samiti, Pali is quashed and set aside and the respondents are directed to reinstate the petitioner back in service on the post which he was holding on the date when the impugned order Annex. 5 dated 17.6.1991 was passed, with immediate effect. It is made clear that the petitioner shall not be entitled to back wages, but he shall be entitled to notional seniority. It is also made clear that there shall be no further enquiry into the allegations forming the subject matter which led to passing of the impugned order Annex. 5 against the petitioner.
No order as to costs.