Excelsior Correspondent
SRINAGAR, Sept 29: The State High Court has held that Government employee cannot be axed from his service on any misconduct without giving him show cause notice or a reasonable opportunity of being heard as it is against the principles of natural justice.
Referring to Article 14 and 21 of the Constitution, which enshrines the right to life and right to livelihood, Justice Sanjeev Kumar said the order of termination of the service of an employee/workman visits with civil consequences not only jeopardize employee’s livelihood but also career and livelihood of his dependents.
“Therefore, before taking any action putting an end to the service of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice”, Justice Kumar recorded.
Court said “it is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him an opportunity of putting forward his case.”
Underscoring the ruling of Apex Court on this issue, Court held that even an administrative order involving civil consequences must be made consistently with the rules of natural justice. “The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice”, said the judgment.
In other words, Court added, the application of principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily affecting the rights of concerned person.
Petitioners in the present petition were temporarily engaged on need basis by debit to the college local funds with a usual break of one day after every spell of 89 days, way back in June 2004, on consolidated wages, by Principal Government College for Women, M.A.Road, Srinagar. They were disengaged from their services; vide order NO.WCI-1677 dated 18th February 2017 as they were found in possession of answer scripts of B A final year examination stolen from evaluation center of the college.
Petitioners counsel argued before the court that while passing order, disengaging petitioners’ services, did not afford any opportunity of being heard to petitioners nor any inquiry was conducted, which vitiates termination order.
Court earlier had directed the authorities to consider petitioners’ representation of petitioners within a period of four weeks and in case any order providing for prohibiting petitioners from discharging their duties had been passed, copy whereof be furnished to them otherwise they would be permitted to discharge their duties as would be permissible in accordance with applicable rules and regulations.
However, the order of authorities passed on July 2017 divulged that petitioners were verbally informed about their disengagement when they were brought to the college by the police and their representation for discharging duties in the college has been found invalid and accordingly rejected. 8. A bare perusal of impugned order of disengagement dated 18th February 2017 divulged that on receipt of aforesaid FIR no.01/2017, petitioners have been disengaged with immediately effect, pending enquiry into the matter.
“Both, impugned order dated 18th February 2017 and order dated 3rd July 2017 would unequivocally reveal that petitioners have never been put to notice, not to speak of issuing or serving show-cause notice upon them to show cause as to why their services should not be disengaged in view of their alleged involvement in the offence contained in aforesaid case FIR”, Justice Kumar recorded.
Court said, it is pointed out that no notice to show cause against disengagement was ever issued to petitioners; that there is not a slightest hint until the order of disengagement came to be made that there was any proposal to disengage petitioners and they never had any opportunity either before or after the order of disengagement was passed to offer their explanation against the allegations made use of for ordering their disengagement.
“It may not be out of place to mention here that the old distinction between a judicial act and an administrative act has withered away and we have been liberated from the incantation of ‘administrative action’.” Justice Kumar said while referring to Supreme Court ruling on the said point.
Other Supreme Court has been referred by the court which held that “it was not a discharge simpliciter or a simple termination of service but one camouflaged for serious misconduct”, adding with court said “The Supreme Court lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was not valid in law. In the present case, the principle question is whether the impugned action, disengaging services of petitioners, is violative of principles of natural justice”.
“In that view of matter, writ petition is disposed of and order of disengagement bearing NO.WCI-1677 dated 18th February 2017, issued by respondent no.3, quashed. Respondents are directed to allow petitioners to make a representation, so as to explain their position vis-à-vis the allegations that founded basis for their disengagement, and take a decision on such representation within a period of three
weeks”, court concluded and directed petitioners to submit the representation along with certified copy of this order and other documents that they find necessary to bolster their case, within ten days from today and on receipt of representation of petitioners, college authorities, court said, shall do well to take a decision, by a speaking order, within aforesaid fixed time frame. Whether petitioners are to be taken back in service or not, shall depend upon the outcome of such decision.
Trending Now
E-Paper
Follow our WhatsApp channel