Telangana High Court
Indian Immunologicals Limited vs Narendra Agrawal on 25 February, 2022
Author: P.Naveen Rao
Bench: P.Naveen Rao, G.Radha Rani
IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF TELANGANA
********
WRIT APPEAL NO.763 OF 2019
Between:
Indian Immunologicals Limited,
Hyderabad (A wholly owned subsidiary
of the National Dairy Development Board),
Road No.44, Jubilee Hills, Hyderabad,
rep.by its Managing Director and others.
.... Appellants/
respondent Nos.1 to 4
and
Narendra Agrawal, s/o. late Shri Nathulal
Agrawal, Aged 49 years, occu: Chief Manager (M2)-HR,
(under orders of termination), Indian Immunologicals
Limited, Hyderabad, (A wholly owned subsidiary of
the National Dairy Development Board), Road No.44,
Jubilee Hills, Hyderabad, currently residing at B/413,
Fresh Living Apartment, Madhapur, Hyderabad
and two others.
.... Respondent No.1/
Petitioner
DATE OF JUDGMENT PRONOUNCED : 25.02.2022
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
&
THE HON'BLE DR. JUSTICE G.RADHA RANI
1. Whether Reporters of Local Newspapers : No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether their Lordships wish to : No
see the fair copy of the Judgment ?
PNR,J & Dr.GRR,J
WA No.763 of 2019
2
* THE HON'BLE SRI JUSTICE P.NAVEEN RAO
&
THE HON'BLE DR. JUSTICE G.RADHA RANI
+ WRIT APPEAL NO.763 OF 2019
% 25.02.2022
# Indian Immunologicals Limited,
Hyderabad (A wholly owned subsidiary
of the National Dairy Development Board),
Road No.44, Jubilee Hills, Hyderabad,
rep.by its Managing Director and others.
.... Appellants/
respondent Nos.1 to 4
and
$ Narendra Agrawal, s/o. late Shri Nathulal
Agrawal, Aged 49 years, occu: Chief Manager (M2)-HR,
(under orders of termination), Indian Immunologicals
Limited, Hyderabad, (A wholly owned subsidiary of
the National Dairy Development Board), Road No.44,
Jubilee Hills, Hyderabad, currently residing at B/413,
Fresh Living Apartment, Madhapur, Hyderabad
and two others.
.... Respondent No.1/
Petitioner
!Counsel for the petitioners : Mr. C.R.Sridharan, learned senior counsel appearing
for Mr. G.V.S.Ganesh, learned counsel for appellants.
Counsel for the Respondents: 1st respondent in person,
Mr. Namavarapu Rajeshwar Rao, learned Assistant
Solicitor General for 2nd respondent;
Mrs. Anjali Agarwal learned counsel for 3rd respondent
<Gist :
>Head Note:
? Cases referred:
1969 (1) SCC 585
2019 SCC Online SC 501
2003 (4) ALD 693 (DB)
(1972) 1 SCC 814
(2003) 4 SCC 579
(2004) 3 SCC 172
AIR 1966 SC 81
2019 SCC Online SC 501
AIR 1961 SC 1731
PNR,J & Dr.GRR,J
WA No.763 of 2019
3
HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE Dr. JUSTICE G.RADHA RANI
WRIT APPEAL NO.763 OF 2019
JUDGMENT :(Per Hon'ble Sri Justice P.Naveen Rao) Heard learned senior Counsel Sri C.R.Sridharan for learned counsel for appellants Sri G.V.S.Ganesh, first respondent in person, Sri Namavarapu Rajeshwar Rao, learned Assistant Solicitor General for second respondent and Mrs Anjali Agarwal, learned counsel for third respondent.
2. Before recording rival contentions, the litigative history leading to the filing of this writ appeal is noted hereunder:
2.1. First respondent herein was appointed as Manager Grade-
III by proceedings dated 2.3.3007 in the Indian Immunological Limited (for short IIL); he was promoted as Manager Grade-II with effect from 1.4.2013 and by circular orders dated 20.3.2014 he was given full charge of Marketing, HR, Training and Development of entire marketing work force. It appears, problems mounted on first respondent some time from November, 2014. On 25.11.2014, first respondent was asked to vacate his cabin and to share office space with a far junior to him. His application for casual leave on 26.11.2014 was rejected. He has escalated his grievances in the form of a PNR,J & Dr.GRR,J WA No.763 of 2019 4 representation dated 25.11.2014 and mail dated 22.12.2014. Instead of attending to his grievances, an office order was issued on 2.1.2015 transferring the first respondent to Distribution Department at Ooty in state of Tamilnadu. On some health issues, he was admitted in hospital on 5.1.2015. A show cause notice was issued to him on 6.1.2015 alleging that he was unauthorisedly absent without prior permission or intimation. After discharge from the Hospital, he submitted his reply on 11.1.2015 to the show cause notice. However, by letter dated 16.1.2015, he was asked to vacate the quarter by 15.2.2015. It appears, he was again admitted in hospital on 23.1.2015 and while he was taking treatment, on 24.1.2015 order terminating his services with one month notice was issued by invoking Clause 18 of the contract of employment.
2.2. The order of termination dated 24.1.2015 was challenged before this Court in W.P.No.4159 of 2015 wherein, the appellants herein raised the plea of maintainability of the writ petition on two grounds. Firstly, employer IIL is a corporate entity, not involved in discharge of any public duty, therefore, it is not amenable to writ jurisdiction. Secondly, termination was passed as per the terms of employment governing his appointment, therefore, there cannot be any adjudication on the validation of termination order in a writ petition.
PNR,J & Dr.GRR,J WA No.763 of 2019 5 2.3. It appears, before learned single Judge elaborate submissions were made on the issue of maintainability of the writ petition and also justifying the action of termination of first respondent. This Court framed following two points for consideration.
(1) Whether the second respondent company is a 'State' or 'other authority' in order to be amenable to the jurisdiction of this Court under Article 226 of the Constitution of India? and (2) If so, whether the order of termination of service of the petitioner passed on 21.04.2015 is valid or not?.
2.4. On thorough discussion on the subject of jurisdiction of writ Court under Article 226 of the Constitution of India, learned single Judge of this Court held as under:
"In the instant case, we are examining whether the subsidiary company is an 'authority' amenable to jurisdiction under Article 226 of the Constitution of India. A perusal of the provisions of NDDB Act and the Memorandum and Articles of Association of the second respondent clearly shows the control exercised by the holding company in the affairs of the subsidiary company. Thus, it can be concluded that the holding company is having financial, functional and administrative domination under the supervision of the Central Government, though the subsidiary company is being managed by the Board of its own with its own Memorandum and Articles of Association regulating its affairs. In view of this, the second respondent is amenable to the jurisdiction of this Court under Article 226 of the Constitution of India."
2.5. Learned single Judge then considered the validity of order of termination. Holding that first respondent being a permanent employee of the first appellant and termination of a permanent employee without following the procedure prescribed in PNR,J & Dr.GRR,J WA No.763 of 2019 6 Conduct, Discipline and Appeal Rules of the Company, imposing punishment of termination/removal from service is illegal and accordingly set aside the punishment. 2.6. Writ Appeal No.143 of 2017 was filed by IIL challenging the decision of the learned single Judge. Before the Division Bench also elaborate submissions were made on behalf of the appellants on maintainability of the writ petition against order of termination of an employee of IIL asserting that the company is not amenable to the jurisdiction of the Writ Court. 2.7. The Division Bench formulated following issues for consideration:
1. Whether the respondent No.2-company is a Government company, and instrumentality of the State within the meaning of Article 12 of the Constitution of India or not?
2. Whether the respondent No.2 is discharging public functions so as to make it amenable to the writ jurisdiction under Article 226 of the Constitution of India?
3. Whether the petitioner is a permanent employee of the respondent No.2 or not?
4. Whether the termination order dated 20.01.2015 is legally sustainable or not?"
2.8. On the issue of maintainability of the writ petition, Division Bench held as under:
"25. Thus, the observations drawn above lead to irresistible conclusion that the activities of the respondent No.2 have the flavour of public duties. Hence, this Court holds that the respondent No.2 is a State within the meaning of Article 12 of the Constitution of India and is amenable to writ jurisdiction. The decisions relied upon by the learned Senior Counsel do not help the case of the appellants. For, the activities of the companies/entities therein strictly do not amount to discharging public or statutory duties.
PNR,J & Dr.GRR,J WA No.763 of 2019 7 ....
...
28..........In any event, the doctrine of lifting of corporate veil is not of much relevance in the instant case. For, from the admitted documents forming part of record, it is clear the respondent No.2 is a wholly owned subsidiary company of NDDB and there is a clear admission by the respondent No.2 that it is a public sector undertaking; it is also implementing reservation policy for SC/ST category. Thus, the contention of the learned Senior Court that the learned Single Judge wrongly applied the doctrine of lifting of the corporate veil and that the impugned judgment is per incuriam the settled legal propositions is without any merit."
2.9. The Division Bench also held that first respondent being a permanent employee, he cannot be removed dehors the Rules and upheld the decision of the learned single Judge. 2.10. On 11.10.2018, the first appellant terminated the services of first respondent. This time taking recourse to Rule 31 of the Conduct, Discipline and Appeal Rules of the Company (CDA Rules). The first appellant states that "the management is no longer in a position to repose any confidence in you. It is not in the interest of the company to keep you in employment any longer. In the best interest of the organization, it has been decided to terminate your services with the organization with immediate effect by following Rule 31 of the CDA rules of the company".
2.11. Challenging the said termination, first respondent filed W.P.No.38211 of 2018. Having found prima facie that the order of termination was not made in valid exercise of power of PNR,J & Dr.GRR,J WA No.763 of 2019 8 discipline and control over the first respondent and due procedure was not followed, by order dated 25.10.2018 made in I.A.No.1 of 2018 in W.P.No.38211 of 2018, learned single Judge of this Court suspended the order of termination. 2.12. Against the interim order dated 25.10.2018, the appellants preferred Writ Appeal No.1540 of 2018. Before the Division Bench, it was urged that as management lost confidence in the first respondent, it is no more desirable to continue him in service and in valid exercise of power vested in the Management, his services were terminated taking recourse to Rule 31 of the CDA Rules. The Division Bench called for the personal file, perused the events leading to order of termination, considered the issue at length and having not satisfied with the reasons assigned to terminate the service of a permanent employee, sustained the order of learned single Judge. 2.13. Court is informed that against the decision of the Division Bench in W.A.No.143 of 2017, appellants preferred Special Leave Petitions and the same are pending before the Hon'ble Supreme Court. [SLP (C) No.008633--008635 of 2021]. 2.14. Before the learned single Judge, again elaborate submissions are made. Firstly, on the issue of maintainability of the writ petition; secondly on prayer sought by the first PNR,J & Dr.GRR,J WA No.763 of 2019 9 respondent in the form of a writ of mandamus, contending that against order of termination, writ of mandamus is not maintainable, therefore, writ petition is liable to be dismissed on that ground alone; and thirdly, the order of termination is valid as employer lost confidence in the employee and he cannot be continued in service any more.
2.15. Learned single Judge was not inclined to go into the issue of maintainability of the writ petition against the appellants having regard to the earlier judgment of the learned single Judge which was affirmed by Division Bench. On the issue of prayer in the writ petition seeking writ of mandamus, learned single Judge observed that though the first respondent sought the prayer of writ of mandamus, even if a writ of mandamus is not maintainable, as further prayer is sought 'to pass any other order or further orders', the Court can deal with alternative relief and also mould the relief. Holding so, the Court decided the issue on merits. On due consideration of the scope of Rule 31 of CDA Rules, learned single Judge found that the order of termination of a permanent employee by taking recourse to Rule 31 of CDA Rules is not legal and valid, therefore, termination is not sustainable and accordingly allowed the writ petition. Hence, this Writ Appeal.
PNR,J & Dr.GRR,J WA No.763 of 2019 10
3. Learned senior counsel reiterated the submissions urged before the learned single Judge on the issue of maintainability of the writ petition. According to learned senior counsel, as first respondent was terminated from service by an order of competent authority, writ of mandamus is not maintainable and aggrieved person has to file writ petition praying to issue writ of certiorari challenging the decision to terminate the first respondent and calling for records of the decision and to seek setting aside the said decision. He would submit that learned single Judge erred in brushing aside the objection on maintainability of writ petition in the form of mandamus. The Court can mould the relief only after it has reached particular stage of accepting the prayer of the petitioner and in the peculiar facts of a given case to consider what relief can be granted. At that stage, Court need not grant the prayer sought and Court can mould the relief to suit the particular situation of a case and to give quietus to the litigation. Therefore, moulding of relief would arise only when the writ petition is maintainable. As writ petition to grant writ of mandamus is not maintainable, the question of moulding of relief does not arise. 3.1. In support of the said contention, learned senior counsel placed reliance on the decision of the Hon'ble Supreme Court in PNR,J & Dr.GRR,J WA No.763 of 2019 11 The Praga Tools Corporation vs. Shri G.A.Imanual and others1, Ramakrishna Mission and another vs. Kago Kunya and others2, and Andhra Pradesh Paper Mills Limited, Secunderabad and another v. Ch.Seetharamaiah and others3.
3.2. He would further submit that even assuming but not accepting that writ of mandamus is maintainable, the question of granting relief of setting aside the order of termination does not arise when employer lost confidence in the employee. According to the learned senior counsel, relationship between the master and servant depends on the confidence employer has on the employee on work ethics, suitability to serve the employer, etc. Thus an employee can work with the employer as long as he enjoys the confidence of the employer. Enjoying the confidence of the employer primarily requires dedication to the service of the employer, honesty, integrity and complete loyalty to the employer. Whereas the conduct of first respondent was not in compliance with these parameters and he lost confidence of the employer. Once the employee looses confidence of the employer, the question of continuation of employee in service does not arise. He would therefore submit 1 1969 (1) SCC 585 2 2019 SCC Online SC 501 3 2003 (4) ALD 693 (DB) PNR,J & Dr.GRR,J WA No.763 of 2019 12 that the learned single Judge erred in setting aside the order of termination and directing reinstatement.
3.3. In support of the said contention, learned senior counsel placed reliance on the decisions reported in Air-India Corporation, Bombay Vs. V.A.Rebellow and another4, Indian Railway Construction Co.Ltd., vs. Ajay Kumar5 and Pearlite Liners (P) Ltd., vs. Manorama Sirsi6.
3.4. Though learned senior counsel also raised the plea of maintainability of the writ petition contending that the first appellant is a company registered under the Companies Act, is not involved in discharge of public duty and therefore not amenable to writ jurisdiction, having regard to the earlier decisions of this Court in W.P.No.4159 of 2015 affirmed in W.A.No.143 of 2017 and the fact that on the same issue, SLP(C) No.008633--008635 of 2021 is pending, learned counsel has not pressed this contention.
4. Party-in-person would submit that the validity of order of termination was considered at length by the Division Bench of this Court in W.A.No.1540 of 2018 against the interim order of learned single Judge dated 25.10.2018 made in I.A.No.1 of 2018 4 (1972) 1 SCC 814 5 (2003) 4 SCC 579 6 (2004) 3 SCC 172 PNR,J & Dr.GRR,J WA No.763 of 2019 13 in W.P.No.38211 of 2018. The Division Bench has considered the submissions made by the appellant extensively and having found that order of termination was not sustainable, affirmed the decision of the learned single Judge granting interim suspension. He pointed out the observations made by the Division Bench in various paragraphs to support his contention that it is no more open for the appellant to maintain this appeal. 4.1. Party-in-person submitted that the appellants have not come before this Court with clean hands, that they made wrong statements before the Division Bench in W.A.No.1540 of 2018 and in the counter-affidavit filed in the writ petition. According to the party-in-person in W.A.No.1540 of 2018 when the Division Bench enquired from the first appellant, whether the issue of maintainability of the writ petition under Article 12 of the Constitution of India was raised before the learned single Judge at the time of passing interim order, learned counsel conceded that no such plea was raised. It was also conceded that in W.A.No.143 of 2017 the issue of maintainability was raised, but no interim order was granted. Contrary to this statement made before the Division Bench, in the counter- affidavit filed in the instant writ petition, wrong statement was made stating that even though first respondent pointed out the writ petition was not maintainable, learned single Judge PNR,J & Dr.GRR,J WA No.763 of 2019 14 proceeded to grant suspension of the termination order, compelling the appellants to file W.A.No.1540 of 2018. Party-in- person would submit that this is a deliberate wrong statement made by the appellants and, therefore, the appellants are disentitled to maintain the appeal.
4.2. He would submit that the pleas urged and the decisions cited by the appellants were also considered by the learned single Judges and the Division Benches and, therefore, it is no more permissible for the appellants to raise very same pleas.
5. In reply, learned senior counsel pointed out that on the issue of maintainability of writ of mandamus and issue of loss of confidence, no submissions are made by the party-in-person and, therefore, writ appeal deserves to be allowed.
6. Two issues require consideration:
(i) Without specific prayer to issue writ of certiorari, can the High Court set aside order of termination from service? and
(ii) Whether the decision of learned single Judge setting aside the order of termination and directing reinstatement is legal and valid?
PNR,J & Dr.GRR,J WA No.763 of 2019 15 1st issue:
7. Learned senior counsel vehemently contended that writ of mandamus to set aside the order of termination from services is not maintainable. Whenever a decision is taken by the quasi- judicial authority, such decision can be assailed in the form of writ of certiorari and not in the form of writ of mandamus. He has cited several decisions to support his claim. We have carefully considered precedent decisions on scope and ambit of Article 226 of the Constitution of India.
8. Article 226 of the Constitution of India is couched in wider terms. It not only vests power in the High Court to issue prerogative writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari or any of them, but also vests power to issue directions, orders to enforce right vested in a person, be it by Part-III of the Constitution of India or in any other manner. Per force, Article 226 of the Constitution of India does not restrict the exercise of power to issue prerogative writs by the High Court in a predetermined water tight compartment. It is not constrained in exercising its extraordinary jurisdiction based on a particular relief or a particular writ prayed by the petitioner and that the High Court is required to issue only such writ, but no other writ. It is like a molten metal that can be moulded into any shape/taken in any PNR,J & Dr.GRR,J WA No.763 of 2019 16 form. In a given situation it extends its long arm to do justice, reaches out to set right illegal action of an authority or a person vested with power to take decision affecting petitioner and to grant relief to him. Thus, the scope of power of High Court is very exhaustive. It plays the role of a sentry to guard the rights of people and prevent from being abrogated/impinged/ hindered in any manner by persons in power or authority.
9. The writ Court can reach out anywhere and to deal with any situation when a person alleges of impingement of his right, be it a fundamental right or a right vested in him in any other manner. Such right also includes contract of employment. Justice Krishna Iyer said, "The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights." [Paragraph-9, Rohtas Industries Ltd. v. Staff Union :
(1976) 2 SCC 82].
10. Though the Constitution makers have not specified the contours of its scope and extent, over a period of time law has evolved to broadly guide the writ Court to deal with a particular situation. By now, the parameters are settled and well laid down. Proverbial, 'Lakshmana rekha' is drawn and warned not to cross as consequences can be disastrous to the polity at PNR,J & Dr.GRR,J WA No.763 of 2019 17 large, if Court assumes unguided power. However, the sea of law makes it clear that within the laid down contours, the power to wield long arm of justice is in tact to enforce right of a person.
"The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts."
[Paragraph 59, Air India Statutory Corpn. V. United Labour Union :
(1997) 9 SCC 377 ].
11. In Election Commission v. Saka Venkata Rao (AIR 1953 SC 210), the Hon'ble Supreme Court noted the reason why Article 226 of the Constitution is couched in wider terms:
"6. .... In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England..........."
12. In Dwarka Nath v. ITO7, the Hon'ble Supreme Court succinctly explained the wide scope of Article 226 of the Constitution of India. Hon'ble Supreme Court held, 7 AIR 1966 SC 81 PNR,J & Dr.GRR,J WA No.763 of 2019 18 "4. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads:
"...every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."
This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in Basappa v. Nagappa [(1962) 2 SCR 169] and Irani v. State of Madras [(1955) 1 SCR 250] .
XXX
9. The High Court mainly dismissed the writ petition on the ground that the affidavit filed in support of the writ petition was highly unsatisfactory and that on the basis of such an affidavit it was not possible to entertain the petition.
...... That apart, if the affidavit was defective in any manner the High Court, instead of dismissing the petition in limine, should have given the appellant a reasonable opportunity to file a better affidavit complying with the provisions of Rule 1 of Chapter XXII of the Rules. We cannot, therefore, agree with the High Court that the petition was liable to be dismissed in limine in view of the alleged defects in the affidavit."
(emphasis supplied)
13. In his address on the topic, 'Some Constitutional Problems' as part of Sir Chimanlal Setalvad, Law Lectures in University of Bombay (1978), in his inimical style Justice Subba Rao reminded Constitutional Courts, their duty to enforce rights of PNR,J & Dr.GRR,J WA No.763 of 2019 19 citizens and to adopt liberal approach in entertaining writ petition. In his words, "........ Under article 32 the right to move the supreme Court is a guaranteed right. But under article 226, the right to move the High Court is a discretionary remedy. Those two provisions have been couched in the widest terms so as to enable the Courts to mould their relief to meet the requirements of different situations. The width of the provisions is discernible in the following expressions: (1) Directions; (2) Orders; (3) Including; (4) Nature. In addition, in article 226 much wider words are found, e.g. "any person for any other purpose.
........ The clauses are designedly made wide to avoid technical difficulties that confronted English Judges in enforcing the rights of citizen......
........ People, who are aggrieved by the illegal or arbitrary orders or acts of the officers and who have faith in Courts, rush to the High Court to get their grievances redressed but the High Court dismisses most of them on one technical ground or other and even if it allows some of them, more often than not, it only quashes the orders but leaves the matters to be decided over again by the same officers with the result that the said officers without redressing the grievances clothe their orders in more acceptable forms. Further, emboldened by this process, they adopt in future more technical than equitable postures and conform more to the form than to the substance. With the result, the aggrieved parties, not having any other course, rush to the High Court with more writs. This vicious circle must be broken. In this context, it is only the liberal construction of article 226 and article 32 given by the Supreme Court earlier that must be pursued to the logical conclusion so that the High Court or the Supreme Court as the case may be can reach injustice wherever it is found. Technicalities of the English Law as stated earlier need not be permitted to obstruct the course of justice. Instead of concentrating on procedural technicalities, the Courts may concentrate their attention on problems having significance viz., where, when and how much to review. The procedure if properly evolved by convention and practice, would enable the Courts to control the arbitrary actions of the authorities."
(Emphasis supplied)
14. In Deepak Bajaj v. State of Maharashtra:[(2008) 16 SCC 14], the Hon'ble Supreme Court said, "19. Learned counsel for the respondent submitted that a writ of habeas corpus lies only when there is illegal detention, and in the present case since the petitioner has not yet been arrested, no writ of habeas corpus can be issued. We regret we cannot agree, and that for two reasons. Firstly, Articles 226 and 32 of the Constitution permit the High Court and the Supreme Court to not only issue the writs which were traditionally issued by British courts, but these articles give much wider powers to this Court and the High Court. This is because Articles 32 and 226 state that the Supreme Court and High Court can issue writs in the nature of habeas corpus, mandamus, certiorari, etc. and they can also issue orders and directions apart from issuing writs.
PNR,J & Dr.GRR,J WA No.763 of 2019 20
20. The words "in the nature of" imply that the powers of this Court or the High Court are not subject to the traditional restrictions on the powers of the British courts to issue writs. Thus, the powers of this Court and the High Court are much wider than those of the British courts vide Dwarka Nath v. ITO [AIR 1966 SC 81] (vide AIR para 4), Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2 SCC 691 : AIR 1989 SC 1607] (vide AIR paras 16 to 18), etc.
21. Secondly, what the petitioner really prays for is a writ in the nature of certiorari to quash the impugned detention order and/or a writ in the nature of mandamus for restraining the respondents from arresting him. Hence, even if the petitioner is not in detention a writ of certiorari and/or mandamus can be issued."
[emphasis supplied]
15. In Bandhua Mukti Morcha v. Union of India: [(1984) 3 SCC 161], the Hon'ble Supreme Court dwell deep into the scope of Article 32 of the Constitution of India and the role of the Hon'ble Supreme Court and also held that what is said about Supreme Court equally applies to a High Court. Relevant extracts reads as under:
"13. ..... It is not only the high prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari which can be issued, but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ. This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution-makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. The Constitution-makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be appropriate in a given case for enforcement of a fundamental right. ..."
Xxxx "There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can sometimes lead to injustice, particularly where the parties are not evenly balanced in social or economic strength. Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than PNR,J & Dr.GRR,J WA No.763 of 2019 21 anything else, his inability to produce relevant evidence before the Court."
xxxx "We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people."
"14. Now it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the Court in support of their case and equally where an action is brought on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and place it before the Court."
"15. We may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Article 226. In fact, the jurisdiction of the High Courts under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for the enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights."
(emphasis supplied)
16. In Ramakrishna Mission and another vs. Kago Kunya and others8, the Hon'ble Supreme Court held as under:
34. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K.K. Saksena [K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 :
(2015) 2 SCC (L&S) 119] this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed.
17. In Bandhua Mukti Morcha Hon'ble Supreme Court observed that, "We have therefore to abandon the laissez faire approach in the 8 2019 SCC Online SC 501 PNR,J & Dr.GRR,J WA No.763 of 2019 22 judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people"
(Paragraph-13). In State of T.N. v. Elephant G. Rajendran : [(2019) 14 SCC 29] same is echoed when the Hon'ble Supreme Court observed, "..... in the process of reaching out to enforce law and protect right of a person, the jurisdiction of constitutional Courts under Article 226 and Article 32 can be used to forge new methodology to achieve the constitutional objectives. [paragraph 64].
(emphasis supplied).
18. The issue whether the first appellant is amenable to writ jurisdiction on the ground that IIL is not a State or instrumentality and not amenable to writ jurisdiction was decided in the earlier round of litigation before this court and pending consideration before Hon'ble Supreme Court. In this round of litigation, the appellants raise the plea of maintainability of the writ petition on the prayer sought by the 1st respondent. In W.A.No.143 of 2017, issues 1 and 2 considered by the Division Bench read as under:
(1) Whether the respondent No.2-company is a Government company, and instrumentality of the State within the meaning of Article 12 of the Constitution of India or not ?
PNR,J & Dr.GRR,J WA No.763 of 2019 23 (2) Whether the respondent no.2 is discharging public functions so as to make it amenable to the writ jurisdiction under Article 226 of the Constitution of India ?
19. On both aspects the Division Bench held against the appellants and held that the IIL is amenable to writ jurisdiction.
20. The frontal attack against judgment in the writ petition is that the petitioner/first respondent did not seek 'writ of certiorari' and therefore learned single judge erred in entertaining writ petition and granting relief of reinstatement. The mighty IIL is not letting any stone unturned to create formidable obstacles against resumption of employment by first respondent by creating aura of invisibility and ducking under the shield, taking high ground that its decisions are immune from scrutiny by this Court under Article 226 of the Constitution of India. All this high ground is apparently to prevent its illegal decisions from scrutiny by this Court under Article 226 of Constitution of India by taking the plea against maintainability of writ petition, in the first round of litigation on 'amenable to writ jurisdiction' and now on petitioner 'not seeking to issue writ of certiorari'. In other words, the contest is more on form and not on substance. Apparently, these bouncers are hurdled knowing fully well that it is on a week wicket to justify its decision, as assessed in second issue.
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21. Per force, the provisions of Article 226 of the Constitution of India are clear as crystal on scope and width of power of High Court to deal with an allegation of infringement of right of a person. Whenever a cloud of uncertainty is sought to be created on scope of exercise of this power, with a clear purpose of evading wrath of writ court from tyrannical decisions by persons exercising authority to offend right of a person, the constitutional courts, in no uncertain terms, have put the foot down. By now, the constitutional courts have built citadel, formidable and all encompassing, to reach out to person in need and uphold his right. Few decisions noted above illuminate this path and leave no ambiguity on scope of exercise of power by the High Court.
22. The prayer in the writ petition reads as under:
"In the above circumstances, it is therefore prayed that this Hon'ble Court may be pleased to issue an appropriate Writ, Order, or Direction, more particularly one in the nature of writ of mandamus declaring the termination order 11th October, 2018 issued by the respondent no.1 as mala fide and illegal and pass such other order or orders in the interest of justice."
(Emphasis supplied)
23. By this prayer, petitioner sought to declare the order of termination as mala fide and illegal. He sought far wider relief leaving it to the Court to issue appropriate writ. He prayed to issue appropriate writ, order or direction and incidentally also PNR,J & Dr.GRR,J WA No.763 of 2019 25 prayed to issue writ of mandamus. Thus, considering the submission of learned senior counsel with all seriousness, it cannot be said that petitioner has sought only a particular relief. Even otherwise, Court is not precluded from issuing appropriate order or direction and/or writ as deemed fit in the cause of justice. Its power to issue appropriate writ, order or direction is not constrained by framing of the prayer when in substance the court is convinced of injustice caused to the petitioner.
24. A permanent employee of IIL is entitled to continue in service until he attains age of superannuation. Employer can dispense with services of permanent employee before he attains the age of superannuation, either in the form of disciplinary action or on account of reduction in establishment. As an employee of first appellant, the first respondent is governed by the discipline and appeal rules. The rules vest right in the first respondent requiring his employer to follow due process of law before taking disciplinary action and dispensing with his services. If the employer intend to dispense with services of employee on the ground of misconduct, it is mandatory for the employer to follow procedure envisaged in the rules governing the service. As dispensing with the services of employee would PNR,J & Dr.GRR,J WA No.763 of 2019 26 result in penal consequences, no such decision can be taken without following due process of law. An aggrieved employee can seek enforcement of his right to follow due process of law before taking disciplinary action against him by availing the remedy under Article 226 of the Constitution of India before this Court.
25. The services of first respondent were terminated by taking recourse to Rule 31. As noticed in the second issue, this Rule has no application. It thus, amounts illegal exercise of power. By such illegal decision, the petitioner's right to continue in service till he attains age of superannuation is abruptly curtailed. It has civil and evil consequences. In exercise of power of judicial review, the writ Court can correct the authority exceeding its jurisdiction and competence and mandate him to act in accordance with law. Having noticed that grave illegality is committed to wield power of termination, Court cannot tie itself in knots on technicalities to rescue the victim from palpable illegal course adopted by the employer.
26. Further, as observed by the Hon'ble Supreme Court in Bandhuva Mukti Morcha (supra), when one of the parties to litigation is weak as compared to the other side, the court must reach out to him as a friend in need of justice. Here an PNR,J & Dr.GRR,J WA No.763 of 2019 27 employee is prosecuting his grievance in person pitted against mighty employer. He cannot be expected to have same amount of legal acumen. Once the High Court is satisfied that injustice is caused to the petitioner and his grievance has to be remedied, it must reach out to him and undo the injustice. Once the Court is convinced of the injustice, the construction and form of the prayer cannot come in the way to render justice. Form and texture cannot over shadow the substance.
27. At this stage, the Court is reminded of the observations made by the Hon'ble Supreme Court in P.J.Irani Vs. State of Madras and another9. Hon'ble Supreme Court said, "15....... Particularly so when the power of the High Court under Article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus etc. as these writs have been understood in England, but the power is general to issue any direction to the authorities viz. for enforcement of fundamental rights as well as for other purposes."
28. As observed by the Hon'ble Supreme Court in Bandhua Mukti Morcha (supra) and in Elephant G.Rajendran (supra), the Court must forge new tools, devise new methods, and adopt new strategies to achieve constitutional objectives and to reach out to the person in distress by extending its long arm of justice. As a sentry endowed with power to guard against violation of a right of a person knocking the doors of the High Court, the High 9 AIR 1961 SC 1731 PNR,J & Dr.GRR,J WA No.763 of 2019 28 Court cannot entangle itself in the web of procedural defects to do substantive justice. Such course is anti-thesis to the constitutional scheme and defeats the very objective of wide powers conferred on the High Court by Article 226 of the Constitution of India.
29. For all the aforesaid reasons, we are not persuaded to fall in line with the submissions of learned senior counsel. This issue is held against the appellants.
2nd issue:
30. First respondent was terminated from service by order dated 24.1.2015 invoking clause-18 of the appointment letter dated 02.03.2007 with one month basic pay. Clause-18 of the initial appointment letter vests power in the Management to terminate the services of a contract employee. This clause was invoked treating the first petitioner as contract employee. In W.P.No.4159 of 2015, the order of termination was set aside, affirmed by the Division Bench. Learned single Judge as well as Division Bench has given clear finding that the first respondent is a regular employee and is governed by the service rules notified by the first appellant and employer cannot resort to termination by referring to a term of initial appointment.
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31. Subsequent to setting aside the order of termination in the above manner and on reinstating the first respondent, disciplinary action was initiated against the first respondent. On 26.02.2018, it appears, a show-cause notice was issued calling for explanation. First respondent seems to have filed his response to the said show-cause notice, received by the first appellant on 12.03.2018. Not satisfied with the explanation offered and taking umbrage on the allegations made by the first respondent against the management, charge-sheet was drawn on 09.04.2018. Charge-sheet contains eleven paragraphs dealing with various aspects of alleged misconduct committed by the first respondent. On 28.09.2018, another charge-sheet was drawn. This charge-sheet also lists out various instances of misconduct alleged to have been committed by the first respondent, directing the first respondent to submit his written explanation within seven days. It appears first respondent submitted his explanation dated 08.10.2018.
32. On 11.10.2018, the orders were issued terminating the services of the first respondent. This order does not refer to the allegations leveled in two charge-sheets, but deals with new aspects of his conduct. Disciplinary Authority assumes that such behavior could seriously jeopardize the interests of the organization and would pose serious threat to reputation and PNR,J & Dr.GRR,J WA No.763 of 2019 30 overall image of the company and would harm its continued existence. Order of termination from service was made taking recourse to Rule 31 of Indian Immunological Limited Conduct, Disciplinary and Appeal Rules (for short 'the Rules'), giving one month notice. At the end of the order, it was also indicated that termination would be without prejudice to the legal proceedings arising out of earlier charge-sheets issued on him.
33. The order of termination dated 11.10.2018 reads as under:
"INDIAN IMMUNOLOGICALS LIMITED Date:11th October, 2018 To Mr.Narendra Agrawal, Address: B/413, Fresh Living Apartment, Image Hospital Lane, Madhapur, Hyderabad - 500 081.
Dear Mr.Agrawal, Loss of Confidence
1. CDSCO conducted a Complaint Verification around our Manufacturing practices at Karakapatla Plant on 4th and 5th Oct 2018. And vide its report dated 5th October 2018 the CDSCO, has concluded that the Company viz. IIL has indeed manufactured the test batches of Rabies Antigen Bulk and Rabies Vaccine (Thiomersal Free). It is reliably learnt that this detained investigation was undertaken by the CDSCO along with their Local team and State Drug Inspector only on a complaint raised by you. It appears that it is you who had complained that (i) IIL does not comply even with the most mandatory condition for grant of commercial license and (ii) that it obtained commercial license on fake documentation for manufacture of Rabies Antigen Bulk. However, the report of the CDSCO clearly establishes that the Company had followed all the mandatory conditions and that it fulfilled all the requirements for grant of commercial license to manufacture Rabies Antigen Bulk, thereby invalidating your complaint.
2. Further it has also come to our notice that you were in possession of certain documents pertaining to Bulk Antigen and Excipients Raw Material. The document on Bulk Antigen was a Controlled Copy and these documents should not be in the hands of PNR,J & Dr.GRR,J WA No.763 of 2019 31 unauthorized personnel. You were not authorized to handle the above documents.
3. From a document extracted from the IT server backup (pertaining to your laptop) it is also found that you were contemplating an all-out action against the Company if your demands were not met.
The instances cited above are conclusive evidence that you are indulging in anti-company activities that could seriously jeopardize the interests of the Organization. You have been holding a responsible senior position in the Organization and expected to maintain high fiduciary relationship with the Organization. Unfortunately you have acted in breach of your duties and responsibilities and abused your senior position by making false, defamatory, derogatory and baseless accusations against the Organization.
All of the above cited instances, coupled with your incessant, unjust and baseless tirade that you run against the Management pose a serious threat to the interests, reputation and overall image of the Company and can even harm its continued existence. That being the case, the Management is no longer in a position to repose any confidence in you. It is not in the interest of the Company to keep you in employment any longer. In the best interest of the Organization, it has been decided to terminate your services with the organization with immediate effect by following Rule 31 of the CDA Rules of the Company. You are being paid one month's salary in lieu of notice. The cheque for Rs.77,621 bearing No.734891 dated 10.10.2018 drawn on HDFC Bank, Lakdikapul branch is enclosed herewith.
This is without prejudice to pending legal proceedings arising out of earlier charge sheets issued to you and our rights and contentions therein.
For Indian Immunologicals Limited Sd/-
Dr.K.Anand Kumar Managing Director"
(emphasis supplied)
34. Three aspects are noticed from this document: first, it is an order of termination of service by giving one month pay in lieu of notice; second, termination is on the grounds mentioned therein which castigate the conduct and character of first respondent and allege loss of confidence of the employer because of the various instances of misconduct stated to have been committed by the first respondent; and third, order of PNR,J & Dr.GRR,J WA No.763 of 2019 32 termination is by dispensing with normal procedure of taking disciplinary action and taking recourse to extraordinary power vested in the disciplinary authority by Rule 31 of the Rules of the company.
35. In view of the finding recorded by the Division Bench in W.A.No.140 of 2017, there is no more a doubt on the status of the first respondent as a permanent employee of the IIL and is governed by the Rules. Further, as power under Rule 31 is invoked it is obvious that the first appellant treated the first respondent as a permanent employee.
36. To test the validity of the decision to terminate the first respondent, it is necessary to consider the scope of relevant Rules. More particularly Rules 510, 2411, and 3112.10
Rule 5. Misconduct. (1) to (4) xxx (5) Acting in a manner prejudicial to the interests of the Indian Immunologicals Ltd. (6) Willful insubordination or disobedience whether or not in combination with others of any lawful and reasonable order of his superior. Xxx (11) Interference or tampering with any safety devices installed in or about the premises of the Indian Immunologicals Ltd.
(20) Commission of any act subversive of discipline or of good behaviour (21) Abetment or of attempt at abetment of any act which amounts to misconduct Note: The above instances of misconduct are illustrative in nature and not exhaustive.11
Rule 24: Penalties: The following penalties may be imposed on an employee, as herein after provided, for misconduct committed by him or for any other good and sufficient reasons. Xxx Major Penalties: (e) Reduction to a lower grade or post, or to a lower stage in a time scale. (f) emoval from service which shall not be a disqualification for further employment. (g) Dismissal. Explanation: The following shall not amount to a penalty within the meaning of this Rule.
(i) to (iv) xxxxx
(v) Termination of service: (a) Of an employee appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment. (b) Of an employee appointed in a temporary capacity otherwise than under a contract or agreement, on the expiration of the period for which he was appointed, or earlier in accordance with the terms of his appointment. (c) Of an employee appointed under a contract or agreement, in accordance with the terms of such contract or agreement and (d) Of any employee on reduction of establishment.
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37. Rule 3(a) of the Rules defines the term 'employee'. Rule 25 provides for 'Disciplinary Authority' for imposing penalties under Rule 24. Rule 26 deals with 'Procedure for Imposing Major Penalties'. Rule 27 deals with 'Action on the Inquiry Report'. Rule 33 deals with 'Appeals' against order imposing penalties on employee. Rule 34 deals with the power of 'Review' wherein the reviewing authority may call for record of any case within six months from the date of final order against any major penalty. Rule 31 envisages 'special procedure in certain cases'. It vests residuary power in the disciplinary authority to dispense with procedure envisaged in Rules 26 and 27 of the Rules and to impose any of the penalties prescribed in Rule 24. [Note: It is seen from the copy of the rules placed before this Court that rule numbers are wrongly mentioned in the body of some of the Rules. Therefore, we have noted the Rules as per the arrangement in the copy of the Rules placed before us].
38. In Rule 5, very exhaustive definition is given on what constitutes 'misconduct'. Based on the allegations leveled 12 Rule 31. Special Procedure in certain cases: Notwithstanding anything contained in rule 25 or 26 or 27, the disciplinary authority may impose any of the penalties specified in rule 23 in any of the following circumstances: (i) The employee has been convicted on a criminal charge or on the strength of facts or conclusion arrived at by a judicial trial; or (ii) Where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the disciplinary authority is satisfied that in the interest of the security of the Indian Immunologicals Ltd, it is not expedient to hold any inquiry in the manner provided in these rules.
PNR,J & Dr.GRR,J WA No.763 of 2019 34 against the first respondent, it is possible to apply Sub-Rules 5, 6, 11 and 20. At any rate, note appended to Rule-5 vests reserve power to describe any conduct of an employee as amounting to misconduct. Rule 24 deals with 'penalties' - minor penalties and major penalties. On an allegation of misconduct, the competent authority can impose any of the penalties provided in Rule 24, divided into major and minor penalties. Major penalties include reduction to a lower grade or post, or to a lower stage in a time scale; removal from service; dismissal from service. To impose any of these three penalties, it is mandatory to conduct detailed enquiry as specified in Rule 26 and procedure required to be followed post enquiry as specified in Rule 27.
39. As can be seen from the explanation appended to Rule 24, termination from service is not a penalty. Resort to termination from service can be had covering the categories of employees mentioned therein or on a particular contingency. A probationer can be terminated during or at the end of the period of probation; temporary employee can be terminated during the period of temporary employment or on expiry of the period for which he was appointed; an employee appointed under a contract or on agreement can be terminated as per the terms of contract or agreement. A permanent employee can be PNR,J & Dr.GRR,J WA No.763 of 2019 35 terminated only on reduction of establishment. Thus, power to terminate the services can be resorted to only against employees appointed as indicated in Rule 24(v)(a)(b)(c) or when there is reduction of establishment. Rule 24 makes it clear that resort to this provision is not as a measure of punishment or in lieu of disciplinary action.
40. Rule 31 deals with a particular contingency to dismiss/ remove an employee. It can be invoked when an employee was convicted on a criminal charge or on the strength of facts or conclusions arrived at by a judicial trial, without conducting enquiry; when it is not reasonably practical to hold an enquiry in the manner provided in the Rules or in the interest of security of the IIL; or when it is not expedient to hold an enquiry in the manner provided in the rules, the procedure envisaged in the rules can be dispensed with. Thus, Rule 31 carves out exceptions to impose any of the penalties prescribed in Rule 24 on a permanent employee dispensing with regular procedure envisaged by the Rules. It can be resorted to in exceptional circumstances and only if contingencies mentioned therein are attracted and not as a matter of course. It being an exception, it cannot subsume the main provision. It curtails the right of employee for fair hearing and opportunity before holding him guilty and imposing on him any of the penalties, including PNR,J & Dr.GRR,J WA No.763 of 2019 36 dismissal/removal from service. It should receive strict construction.
41. From the reading of Rule 24, it is noticed that termination of service is not one of the penalties prescribed in the Rules. Power under Rule 31 is available only to dispense with procedure envisaged in Rules 26 and 27 to impose any of the penalties prescribed in Rule 24. Rule 31 does not confer power to terminate a permanent employee by giving one month notice or one month salary in lieu of notice. Further, termination from service can be resorted to only in the four contingencies mentioned in the explanation appended to Rule 24. In other words, a permanent employee cannot be terminated unless there is a reduction of establishment, at any rate, not as a measure of disciplinary action. In the case on hand, the termination is not on account of reduction in establishment. Even when there is reduction in establishment, the principle of 'last come first go' has to be adopted and not to pick an employee randomly.
42. Further, the present order of termination was preceded by order of termination dated 24.01.2015, set aside by this Court in W.P.No.4159 of 2015, affirmed by the Division Bench in W.A.No.143 of 2017, show-cause notice dated 26.02.2018, PNR,J & Dr.GRR,J WA No.763 of 2019 37 charge sheet dated 09.04.2018, charge-sheet dated 28.09.2018. All of this and for the reasons assigned in the order of termination, it is apparent that the termination of service of first respondent, impugned herein, is not a termination simpliciter, but termination on the allegations of misconduct, is punitive and stigmatic and results in penal consequences. Seizing of relationship of employer and permanent employee on misconduct, whether employer calls it as dismissal/removal/ termination, cannot be without following due process.
43. There is no dispute on the proposition that an employee can continue in employment as long as he enjoys the confidence of the employer. If the employee earns displeasure of the employer, the employer can put an end to the service of the employee. Such displeasure can be because of his conduct, behavior and work output and employer opines that his continuation in employment is not conducive to the work atmosphere of the employer. If the employer is a statutory authority/an instrument of the State/a creature of the State or its instrumentality and the conditions of service are governed by service Rules/Regulations, he can only put an end to the services of an employee strictly in accordance with the Rules/ Regulations governing the service.
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44. Dispensing with the services of an employee perforce mean employer is not satisfied with employee and lost his confidence. The form and texture of dispensing from service can be, by way of termination or dismissal or removal. By any of these measures the relationship between employer and employee comes to an abrupt end. Mere use of term 'loss of confidence' does not escalate displeasure of employer to higher degree and camouflages the decision de-horse the rules. The term used in the order impugned in the writ petition is mere rhetoric to what was obvious.
45. Having regard to the purport and scope of Rules 24, 26 and 27, Rule 31 is not attracted to the case on hand. Therefore, termination of service of first respondent is ex facie illegal, without power and jurisdiction. It is void ab initio. As order of termination is found to be ex facie illegal, a void order, the necessary corollary is reinstatement. It is premature to going into the aspect of whether the employee 'lost confidence', set up as a defense to over come palpably illegal order, for, the issue of 'loss of confidence' is yet to be established by due process and it is only the assumption of the competent authority. The chronology of actions taken against the 1st respondent also indicate that the allegations of misconduct are evolving, improving from stage to stage. These allegations are yet to be established. He cannot PNR,J & Dr.GRR,J WA No.763 of 2019 39 prejudge the culpability of the employee without affording him opportunity by duly following the procedure required by law to take action against a permanent employee. Even for that matter, a temporary employee is also entitled to opportunity of hearing if he is sought to be terminated on alleged misconduct. We therefore do not see any error in the directions issued by learned single Judge. The second issue is answered accordingly.
46. For the aforesaid reasons, the Writ Appeal fails and is accordingly dismissed. Pending miscellaneous petitions if any shall stand closed.
______________________________ JUSTICE P.NAVEEN RAO ______________________________ DR.JUSTICE G.RADHA RANI Date:25.02.2022 Tvk/kkm PNR,J & Dr.GRR,J WA No.763 of 2019 40 HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE Dr. JUSTICE G.RADHA RANI WRIT APPEAL NO.763 OF 2019 Date: 25.02.2022 Tvk/kkm