*Says action arbitrary, directs reinstatement
Excelsior Correspondent
JAMMU, Nov 10: The High Court of Jammu & Kashmir and Ladakh has quashed the termination of a probationary employee of Devika Urban Cooperative Bank Ltd, Chenani, holding that the action was taken as a measure of punishment without conducting any inquiry.
Justice Javed Iqbal Wani, while pronouncing the judgment in Nedhi Abrol Versus J&K & Others, directed the Bank to reinstate petitioner to her post of Cashier-cum-Clerk, though without back wages, while granting liberty to the bank to conduct a proper inquiry within six weeks if it so desires.
The petitioner, Nedhi Abrol, was appointed as Cashier-cum-Clerk in the Bank on May 31, 2014 and was placed on probation for two years. She claimed that due to ill health she could not attend duties in June 2015 and had duly applied for leave supported by medical certificates. However, she was marked absent, served show-cause notices and ultimately terminated vide order dated August 13, 2015 issued by the Chief Executive Officer.
The High Court noted that the termination order was passed during the period of probation but contained allegations of misconduct, unauthorized absence and indiscipline. “Once the termination is founded upon alleged misconduct, it ceases to be a simple discharge and becomes punitive in nature,” Justice Wani observed after hearing Senior Advocate Deepika Mahajan with Advocate Athrav Mahajan for the petitioner and Deputy AG Pawan Dev Singh with Advocate Rajeev Dubey for the respondents.
The High Court held that no inquiry whatsoever has been initiated against the petitioner before issuance of the impugned order of termination and that mere issuance of show-cause notices cannot be treated as a substitute for disciplinary proceedings.
The High Court emphasized that even a probationer cannot be dismissed on grounds of misconduct without affording a reasonable opportunity of being heard. “The discharge of a probationer on account of misconduct, inefficiency or for similar reasons, without proper inquiry and opportunity, amounts to removal from service,” the Judge observed, adding the Bank’s action was “clearly punitive and in breach of the principles of natural justice”.
Rejecting the Bank’s objection that it was not a ‘State’ within the meaning of Article 12 of the Constitution, Justice Wani held that Devika Urban Cooperative Bank performs public functions involving public money and therefore falls within the ambit of judicial scrutiny under Article 226.
The High Court also turned down the Bank’s plea that the petitioner had an alternate remedy of appeal under service rules. Justice Wani observed that availability of an alternate remedy is not an absolute bar to invoking writ jurisdiction, particularly when there is a clear violation of fundamental rights or principles of natural justice.
While setting aside the termination order, the Court directed the Bank to reinstate Nedhi Abrol but denied back wages. The Bank has been given six weeks from the date of receipt of the order to initiate a proper inquiry into the alleged misconduct. “Failure to do so within the stipulated time would mean the Bank is deemed to have waived its right to hold such an inquiry”, read the judgment.
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