Employer's duty to hold an inquiry into alleged misconduct before terminating service to ensure compliance with constitutional rights.

P. S. MISHRA, C. J.

( 1 ) HEARD learned Counsel for the appellant.

( 2 ) HUSBAND of the writ petitioner - respondent has been missing for more than a decade. She has been running from pillar to post seeking from the employer - Electricity Board compassionate appointment for herself and family pension. The Board, however, maintained that her husband was un authorisedly absent for more than five years and for that reason his services stood automatically terminated. The Board gave no consideration to her for either compassionate appointment or family pension. The writ petitioner moved this Court. The Court has given a direction to treat her husband as legally dead and grant to her family pension and allowed the writ petitioner to make application for compassionate appointment and observed in case such application is filed by her, the Board shall give a sympathetic consideration. The Board has come in appeal before us.

( 3 ) THE fallacy, however, in the stand of the Board starts from its case that the service of the husband of the writ petitioner stood automatically terminated for his long unauthorised absence from duty. Allegation that some one is absent without any grant of leave by the competent authority, is obviously an allegation leading to a charge of misconduct on the part of the employee. When such a charge is levelled against the employee, it is imperative the employer is duty bound to hold enquiry into the alleged misconduct, before making any order of removal from service, which in every sense will be an order imposing a major punishment. The view which several High Courts expressed and applied in different parts of the country, notwithstanding the rules or certified standing orders providing for such automatic cessation of contract of service, has now been expressed by the supreme Court in the case in D. K Yadav vs. JM. A. Industries Ltd. , in the case of a private employer, wherein it is stated, principles of natural justice and duty to act in just, fair and reasonable manner must be read into the standing orders and notwithstanding the order which provided for automatic cessation of contract of service, the Court has directed that such order to terminate the service can be made only after an enquiry, otherwise it will be violative of Articles 14, 16 (1) and 21 of the Constitution of India.

( 4 ) THERE is good reason for the Court to reject the information provided by the appellant - Board that the husband of the writ petitioner is still alive, as such a statement has come on the basis of information, and anything that is based on information must be supported by such cogent material which will give credence to the information. There is nothing which can give credence to the averment that the husband of the writ petitioner is alive. Since he has not been heard for more than seven years, there is every reason to presume that he is dead for all legal purposes. This presumption, however, is not in any manner against the interest of the Board, for if he is alive, he is entitled to claim continuity in service until the service is determined in accordance with law and if he is dead for all legal purposes, the obligation upon the Board is to pay the family pension to his wife and dependents only. We do not find any merit in the appeal.

( 5 ) WE, however, take notice of the long suffering of the wife of an erstwhile employee of the Board and the family which has gone without anything for its subsistence provided by the employer of the husband of the writ petitioner. While we endorse the directions of the learned single Judge, we direct the Board to consider the case of the writ petitioner for compassionate appointment and give to her such appointment in accordance with law at the earliest. As we have noticed above, for all practical purposes the husband of the writ petitioner will be deemed to have died and as he has died while in service of the Board, he will be deemed to have died in harness.

( 6 ) WITH the direction as ab

Click Here to Read the rest of this document