VERY IMPORTANT POINTS
1. Once an employee attains the temporary status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other Articles dealing with services under the Union of India.
2. Order of termination of service on the basis of preliminary enquiry and not on the basis of regular departmental enquiry without issuing a chargesheet or giving an opportunity of hearing to the appellant, cannot be sustained.
3. Encashment of Cheque of retrenchment compensation would not be a bar to challenge termination order as illegal and void.

Headnote:Service Law-Termination of service-Validity of-Casual employee who secured status of temporary employee-Criminal case on allegation of assaulting watchman-Termination without regular enquiry -Retrenchment compensation u/s 25F paid-Termination of service punitive -Termination order on basis of preliminary enquiry without regular enquiry unsustainable-Termination order set aside-Reinstatement with backwages and consequential benefits ordered.
       Held : Once an employee attains the temporary status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other Articles dealing with services under the Union of India. (Para 6)
       If an order had been passed by way of punishment and was punitive in nature, it was the duty of the respondents to hold a regular departmental enquiry and they could not have terminated the services of the appellant arbitrarily by paying him the retrenchment compensation. The observation of the Tribunal that the respondents had a choice either to hold a regular departmental enquiry or to terminate the services by payment of retrenchment compensation is wholly incorrect. (Para 5)
       It was an order passed by way of punishment and, therefore, was an order of dimissal which, having been passed without holding a regular departmental enquiry, cannot be sustained. The order having been passed on the basis of preliminary enquiry and not on the basis of regular departmental enquiry without issuing a chargesheet or giving an opportunity of hearing to the appellant, cannot be sustained. (Paras 8 & 10)
       Held consequently judgment dated 4.12.1997, passed by the Tribunal as also the judgment dated 30.10.1998, passed by the High Court, are set aside and the claim petition of the appellant is allowed with costs throughout. The order dated 20.5.1992, by which the services of the appellant were terminated, is quashed with the direction that the appellant shall be put back on duty on the post which he held on 20.5.1992 and shall be paid all the arrears upto date and other consequential benefits admissible under the rule. (Para 14)
       (ii) Constitution of India-Article 311-Termination of service/reduction in rank etc.-Protection against-Casual labour once attained status of temporary status entitled to constitutional protection envisaged by Article 311. (Para 6)
       (iii) Constitution of India-Article 311 read with Industrial Disputes Act, 1947-Section 25F-Termination of service without following due process of law but paying retrenchment compensation by cheque-Encashment of cheque-Would not mean employee surrendered all his constitutional rights in favour of employer-Encashment of cheque not a bar to challenge retrenchment order.
       Held : The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchment compensation was paid to him. They intended to say that once retrenchment compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment. This, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the temporary status after having put in ten years of service. Like any other employee, he had to sustain himself, or, may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meagre amount of Rs. 6,350/-, was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his Constitutional rights. Such an order cannot be sustained. (Para 13)

JUDGMENT

S. Saghir, Ahmad, J.-Leave granted.

2. The appellant, who was engaged as casual labour in October, 1982 by the Telecom Department at Agra, had worked continuously as such for more than ten years and had also acquired temporary status, was prosecuted for an offence, under Section 324, 427 and 504 IPC, said to have been committed on 20.4.1992. The trial dragged on for many years and ultimately by judgment and order dated 27.2.1998 passed by the Chief Judicial Magistrate, Agra, he was acquitted, but in the meantime, by order dated 20.5.1992, his services were terminated against which he made a representation to the General Manager, Telecom Department, G.M.T. Office, Lucknow, on 21.7.1992 but the representation was not heeded to and, therefore, the appellant filed a petition before the Central Administrative Tribunal, Principal Bench, New Delhi (for short, the Tribunal ) on 25.8.1992 which was dismissed on 4.12.1997. The order of the Tribunal was challenged in a Writ Petition filed in the Delhi High Court but the High Court, by its order dated October 30, 1998, dismissed the Writ Petition.

3. The order dated 20.5.1992 by which the services of the appellant were terminated reads as under :-

"To

Shri Nar Singh Pal,

Casual Employee,

S/o Shri Hari Prasad,

Village Sarai Jairam,

P/O Barhan, Distt. Agra.

Letter-D.E. Planning (Admn.) N.S. Pal/92-93/5 dated 20.5.92.

Dear,

You had beaten with iron article and had bitten with teeth to Shri Mahender Singh, son of Shri Ratan Singh, gateman, Tax Bhawan, Agra on 20.4.92 in the evening at 8.00 P.M. who was on duty. Due to the above-said conduct, you are not deserved/competent to be in the Govt. service any more and you are casual employee. Therefore, your services are terminated with immediate effect. Nevertheless, you are being paid Retrenchment benefit. The under-mentioned cheque is being annexed with this letter :

Sd/-

D.E. PHONE (ADM)

Telecom Distt. Agra-282001.

ANNEXURE-ONE CHEQUE

Cheque No. 13 425777

Dated 19.5.92

Bank-State Bank of India, Agra,

Rs. 6,350/-

(Six thousand three hundred fifty only)"

4. This order, ex facie, is punitive in nature. It was, therefore, contended before the Tribunal that the services of the appellant could not be terminated without holding a regular departmental enquiry. The question was dealt with by the Tribunal as follows :-

"4. After perusing the record and considering the rival arguments, we are of the view that the respondents could either initiate departmental enquiry against the applicant for the alleged misconduct, or terminate his services by payment of retrenchment compensation, overlooking the misconduct alleged against him. In the present case, the retrenchment compensation was paid and it appears that the same was accepted by encashing the cheque by the applicant. Accordingly, he cannot now be allowed to urge that the termination was bad because there was no enquiry into the alleged misconduct against him.

5. From the allegations made in para 4 of the application, we find that a report was also lodged against the applicant with the Police in respect of the same incident and a case was registered against him for offences under Sections 324, 427 and 504 IPC. The applicant was also arrested and a chargesheet was filed against him in the court. The case was pending on the date of the application and we do not know what happened to the prosecution thereafter, but it appears that there was prima facie some material against the applicant to hold that his services were not satisfactory and to retrench his services on that basis. Accordingly for the aforesaid reasons, we find no merit in this OA and it deserves to be dismissed."

5. The reasoning of the Tribunal is fallacious. If an order had been passed by way of punishment and was punitive in nature, it was the duty of the respondents to hold a regular departmental enquiry and they could

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2000 Supreme(SC) 640

Cases Referred (1)