Rajasthan High Court - Jaipur
Director, Central State Farm And Ors. vs Judge, Labour Court And Ors. on 16 January, 1991
Equivalent citations: 1991(2)WLC259, 1991(2)WLN158
JUDGMENT
J.R. Chopra, J
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the Judgment of the learned Single Judge dated 20.10.1989 whereby the writ petition filed by the petitioner has been rejected and the judgment rendered by the learned Judge, Labour Court Bikaner on 1.5.1989 has been upheld.
2. The facts, necessary to be noticed for the disposal of this appeal, briefly stated are: that respondent No. 2 Laxminarain, who was working in the Central State Farm, Suratgarh, which is a branch of the State Farm Corporation of India, as a Chowkidar in Block No. 1. It is alleged that on or about 24.1.1981, a report was received from the Security Supervisor that in the night intervening between 23rd and 24th January, 1981, the Police conducted a raid in the farm area of Suratgarh and seized a working still of raw liquor. As per the police version, two culprits of village Saramsar who were not employees of the Farm were caught but the respondent No. 2, a daily paid worker of the Farm, managed to escape living behind his blanket and stick. A case under Section 4(2) of the Rajasthan Prohibition Act was registered against respondent No. 2 by the Police. He was arrested on 24.1.1981 and was released on bail on 30.1.1981. A show cause notice was issued to respondent No. 2 on 18.2.1981 mentioning this fact that he should explain his conduct as also his absence from duty without leave and why he should not be relieved from service. The respondent No. 2 filed a reply in which he contested this report. It was submitted that at that time, he alongwith Shaitansingh, Assistant Head Guard were on guard duty. When they found unknown persons cutting farm trees and when they asked them not to do so, the unknown persons snatched his blanket and stick and when he went to make a report about it, he was handed over to the police and, therefore, according to him, this allegation that he was found indulging in distilling illicit liquor was wrong. After examining his reply, the order Annexure-P. 2 dated 10.5.1981 was passed whereby the services of the respondent No. 2 were terminated under Section 11(a)(iv) of the Certified Standing Orders for the Employees of the Central State Farm: Suratgarh (for short 'the Standing Orders'). Aggrieved against the order Annexure-P. 2 dated 10.5.1981, the respondent No. 2 raised an industrial dispute before the learned Labour Court, Bikaner. The learned labour Court vide its order dated 1.5.89 came to the conclusion that the services of respondent No. 2 has been terminated without adhering the principles of natural justice. He was not given an opportunity of hearing and no enquiry was conducted against him, and, therefore, his termination was wrong and, therefore, he has been ordered to be re-instated in service with affect from the date his services have been terminated. He was ordered to be reinstated with back wages including all other benefits which are allowable to him under the Rules. It was against this order of the learned Labour Court dated 1.5.1989, the petitioners filed a writ petition before this Court under Article 226 of the Constitution, which came to be decided by a learned Single Judge of this Court vide order dated 20.10.1989. Hence this appeal.
3. It has been contended that the provisions of Article 311 of the Constitution are not attracted in such cases. Only the person has to be informed about his unsatisfactory service. Section 11(a)(iv) of the Standing Orders provides for the penalty of discharge or dismissal from service. It was submitted that Section 11(a) of the Standing Orders provides that no order under Clause (iii) or Clause (iv) of sub-paragraph (a) above shall be made unless the employee has been informed in writing of the alleged misconduct and has been given a reasonable opportunity to explain the charges alleged against him. An appeal has also been provided under Section 12 of the Standing Orders. It was contended by the appellants before the learned Single Judge that according to a decision of their lordships of the Supreme Court in State of Assam v. Kanak Chandra , casual labourer is not holder of a post and, therefore, the provisions of Article 311 of the Constitution are not attracted. It was further contended that the requirement of the principles of natural justice have, of course, been complied with. The respondent No. 2 was given a show cause notice and his reply was received and after considering his reply, his services have been terminated. Reference has been made in the writ petition to a decision of their lordships of the Supreme Court in Sumati P. Shere v. Union of India , wherein it has been held that the termination of the services on the ground of unsuitability of the post does not attract Article 311 of the Constitution. It was further observed that there cannot be any dispute about this proposition. It was also observed that we are not laying down the rule that there should be a regular enquiry in this case and all that we have to state is that if the petitioner is to be discontinued, it is proper and necessary that he should be told in advance that his work and performance are not upto the mark. It was submitted on behalf of the appellants that has been done in this case. No detailed enquiry was called for and, therefore, the orders of the learned labour Court as also the learned Single Judge are unsustainable.
4. We have heard Mr. R.R. Vyas, the learned Counsel appearing for the appellants and Mr. D.K. Parihar, the learned Counsel for the respondents and have carefully gone through the record of the case.
5. At the very outset, it may be stated that according to the judgment of the learned labour Court, respondent No. 2 was in service for the post about 15 years at the time of his termination of services. In this case, it has been alleged that the Police made a raid in the farm premises and it was found that the respondent No. 2 alongwith two others were engaged in distilling illicit liquor in the night intervening between 23rd and 24th January, 1981. When this fact came to the notice of the Security Supervisor, he informed the concerned authority and, therefore, a show cause notice was issued to respondent No. 2, in which, explanation was sought from him as to why his services should not be terminated he has been found in indulging extraction of illicit liquor. It has further been alleged that he was arrested on 24th January, 1981 and was released on 30.1.1981 and, therefore, it was held to be a misconduct as per Section 10 of the Standing Orders, which has been made punishable under Section 11 of the aforesaid Standing Orders.
6. We have gone through Section 10 of the aforesaid Standing Orders. Respondent No. 2 was under arrest from 24th January, 1981 to 30th January, 1981 and that does not make his absence without leave for more than 10 consecutive days and, therefore, his case is not covered by cl. (f) of Section 10 of the Standing Orders. He has also hot been convicted by a Court of Law for any offence involving moral turpitude. However, it is alleged that respondent No. 2 was found indulging in distilling illicit liquor and this act has been done by him within the premises of the petitioners' establishment. So that as it may, in his reply, the respondent No. 2 has disputed the correctness of this allegation and has stated that he was actually on the guard duty. When he saw three unidentified persons coming towards the farm area, he challenged them and they snatched from him his lathi as also his blanket. According to the police version, these articles were left by respondent No. 2 on the spot because he was not caught raid handed. Be that as it may, it is a case of misconduct and, therefore, the order of termination is penal in character and as such, an enquiry was a must when allegations have been disputed. A charge should have been framed and that should have been served on respondent No. 2 because he was in the employment of the appellants for the past about 15 years. Section 11(b) of the aforesaid Standing Orders provides that no order under Clause (iii) or (iv) of sub-paragraph (a) above shall be made unless the employee has been informed in writing of the allege misconduct and has been given a reasonable opportunity to explain the charges alleged against him.
7. Much stress has been laid by Mr. R.R. Vyas, the learned Counsel appearing for the appellants on a decision of their lordships of the Supreme Court in Sumati P. Shere v. Union of India . That was not a case of misconduct. It was a case of temporary Govt. servant, whose services were being extended from time to time and it was alleged that on the last occasion, the authorities recorded that the work and performance of the appellant is not satisfactory and, therefore, she cannot be recommended for re-appointment. While relying on the authoritative pronouncements of their lordships of the Supreme Court in Champaklal Chimanlal Shah v. Union of India and Oil and Natural Gas Commission v. Dr. M.D.S. Mender Ali , it was observed in para 6 of the Judgment that both these cases pertain to the termination of temporary Govt. servants who were on probation. The termination was on the ground that their work had never been satisfactory and they were not found suitable for being retained in the service. It was further observed that the Supreme Court has held that the termination of service in such cases on the ground of unsuitability for the post does not attract Article 311 of the Constitution. Thus, it is a case of termination of services on the ground of unsuitability, and in such matters, it has been observed by their lordships of the Supreme Court that unsatisfactory performance of the employee should be brought to his notice so that he may have an opportunity to improve unsatisfactory work. The unsatisfactory work or conduct does not amount to misconduct and, therefore, when it is a case of misconduct, the termination is certainly penal in character. It is not a case of relieving a Govt. Servant from the service on account of his unsatisfactory work. When it is a case of misconduct and the order of termination is penal in character then certainly, the principles of natural justice would be attracted in such cases.
8. It has been held by this Court in Kendriya Sarvodaya Sahkari Sangh Ltd., Jaipur v. Jawan Singh Ranawat 1967 RLW 73 that the purpose of rules of natural justice is to safeguard the position of the person against whom an enquiry is being conducted so that he is able to meet the charge laid against him properly and in such cases, the witnesses should be examined before the person concerned and he must have an opportunity to cross examine them and lead his own defence. In para 12 of the aforesaid Judgment, it was further held that when the petitioner has not admitted his guilt then a proper enquiry was necessary in the matter.
9. Our attention has also been drawn to a Full Bench decision of the Allahabad High Court in Ramendra Nath v. Mandi Samiti, Sultanpur , wherein it has been observed:
that the employees of statutory corporations, even in the absence of any Service Rules are entitled to the benefit of principles of natural justice, which would also apply in the case of employees of the Corporation in the matter of termination of services in case their services are terminated though by an innocuous order but by way of punishment without giving them an opportunity of hearing.
It was further held that where the services of the employees of a Mandi Samiti were terminated when there were no service rules in existence by way of punishment in as much as termination was made on the basis of arrest of the employees on the alleged charge of issuing forged passes and on the basis of the recommendation made by the Superintendent of Police to terminate their services and no opportunity of hearing was given to the employees, such termination of services was held to be illegal being violative of Article 14 and principles of natural justice. In such a case, the relief could not be denied to the employees on the ground that it was a contractual matter and that Samiti was within its right to terminate the services of the employees. It was also held that the employment of the respondent was public employment and the employer could not terminate the services of its employee without due enquiry in accordance with the Statutory Regulations, if any inforce or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry in to the conduct of a public employee is of a quasi judicial character. The respondent was employed by the appellant Corporation in exercise of powers conferred on it by the statute which created it. The appellants power to dismiss the respondent from service was not derived from the Statute. The Court would, therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice. The rules of natural justice in the circumstances of the case required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes opportunity to cross-examine the witnesses relied upon by the appellant Corporation and an opportunity to lead evidence in defence of the charge as also a show cause notice for the proposed punishment.
10. Section 11(b) of the aforesaid Standing Orders also provides that the employee has to be informed in writing about the alleged misconduct and he has to be given a reasonable opportunity to explain the charges levelled against him. Thus, the charges have to be framed and they have to be served on the delinquent and if the employer wanted to terminate the services of the delinquent employee as a measure of penalty even without waiting for the decision of the Criminal Court, the employer should have held an enquiry about his conduct and if it was found that the employee has really indulged in such an affair or is guilty of the aforesaid misconduct then alone his services could have been terminated by his employer. In this case, where employee's services have been terminated only a show cause notice was given to the respondent employee and a reply was obtained from him but when the respondent employee has contested the charges levelled against him, he should have been served with a charge-sheet or at least a statement of allegations. As the petitioner has contested the allegation of distilling the illicit liquor and has stated that in his guard duty, he tried to stop certain persons to cut trees in the farm area, at that moment his blanket and stick were snatched, he should have been afforded an opportunity to support his contention. It would be better if the Department has also examined witnesses in support of the allegations made against the petitioner because no finding of a criminal court has been brought on record whether the petitioner was at all involved in the incident and, therefore, an opportunity of hearing should have been given to him to show that he is not guilty and that has not been done in this case. It appears that the principles of natural justice have been violated in this case and, therefore, the learned labour court as also the learned Single Judge were right in holding that such a termination cannot sustain. We are firmly of the opinion that the judgment of the learned single Judge calls for no interference.
11. In the result, this appeal has no force and it is hereby dismissed without any order as to costs.