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PATNA HIGH COURT
S.B.Sinha and Gurusharan Sharma JJ.
Mohit Ram
Versus
Bihar State Electricity Board Throngh The Secretary
Civil Writ Jurisdiction Case No. 29 of 1993 ;
Decided On : JANUARY 24, 1994
CONSTITUTIONAL LAW - ARTICLE 14, 16, 21 - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - SECTION 2 - BIHAR STATE ELECTRICITY BOARD STANDING ORDER - CLAUSE 24 - TERMINATION OF EMPLOYMENT - AUTOMATIC CESSATION OF EMPLOYMENT - UNLAWFUL ABSENCE - EXPLANATION - FAIR AND REASONABLE PROCEDURE - NATURAL JUSTICE - VALIDITY OF STANDING ORDER - REINSTATEMENT - DEPARTMENTAL PROCEEDING.
Fact of the Case:
The petitioner, an employee of the Bihar State Electricity Board, was terminated from service for unauthorized absence. He challenged the termination order, arguing that it was passed without following the principles of natural justice and that Clause 24 of the Standing Order of the Board, which provided for automatic cessation of employment in case of unauthorized absence, was ultra vires Articles 14 and 16 of the Constitution of India.
Finding of the Court:
The court held that Clause 24 of the Standing Order was ultra vires Articles 14 and 16 of the Constitution of India, as it allowed for termination of employment without providing an opportunity to the employee to explain his absence. The court also held that the termination order was passed without following the principles of natural justice, as the petitioner was not given an opportunity to be heard before the order was passed.
Issues: 1. Whether Clause 24 of the Standing Order of the Bihar State Electricity Board was ultra vires Articles 14 and 16 of the Constitution of India? 2. Whether the termination order was passed without following the principles of natural justice?
Ratio Decidendi: 1. The court held that Clause 24 of the Standing Order was ultra vires Articles 14 and 16 of the Constitution of India, as it allowed for termination of employment without providing an opportunity to the employee to explain his absence. The court relied on the decision of the Supreme Court in Delhi Transport Corporation v. D. T. C. Mazdoor Congress and others, wherein it was held that any law or rule that empowers an employer to dismiss or reduce in rank an employee must be consistent with just, reasonable, and fair procedure. 2. The court also held that the termination order was passed without following the principles of natural justice, as the petitioner was not given an opportunity to be heard before the order was passed. The court relied on the decision of the Supreme Court in Workmen of Hindustan Steel Ltd. v. Hindustan Steel Ltd. and others, wherein it was held that a disciplinary proceeding must be conducted in accordance with the principles of natural justice.
Final Decision: The court allowed the petition and quashed the termination order. However, it also directed the respondents to be at liberty to initiate a departmental proceeding against the petitioner and pass an appropriate order in accordance with law.
S. B. Sinha, Gurusharan Sharma, JJ.
1. The petitioner in this application has prayed for quashing the letter issued on 17.7.1992 by the respondent whereby and whereunder the petitioner had been intimated that the petitioners representation for reinstatement/re-appointment cannot be accepted. The petitioner has also prayed for quashing the letter dated 21.11.1992 issued by the Respondent-Electrical Executive Engineer, Hajipur, whereby it was communicated to the petitioner that it is not feasible to appoint him. The petitioner has also prayed for quashing the order dated 22.7.1986 whereby the services of the petitioner has been terminated in view of his unauthorised absence. The petitioner has also prayed that Clause 24 of Standing Order of bihar State Electricity Board be declared ultra vires to Article 16 of the constitution of India. The said letters and order are contained in Annexures-1, 2 and 3 to the writ application.
2. The fact of the matter is not much in dispute. The petitioner was allegedly on leave from 1.6.1986 to 10.6.1956. According to the petitioner, he was suffering from Jaundice. As he did not recover from his illness, he sent an application on 11th June, 1986 and, thereafter, by his letter dated 1.7.1986 requested for grant of leave upto 31st july, 1986
3. The petitioner was declared fit on 4.3.1986 when he submitted his joining alongwith Medical Certificate, but the respondents without assigning any person refused to accept the same.
4. According to the petitioner, he immediately, thereafter, requested the Electrical Executive Engineer for acceptance of his joining and he was communicated that his services have been terminated which order had been sent to him by Registered post. The petitioner has contended that he has not received a copy of the said order.
5. The petitioner has contended that the impugned order has been passed, inter alia, on the basis of letter dated 30.6.1986 as contained in annexure 10 to the writ application whereby and whereunder the Assistant electrical Engineer communicated to the Electrical Executive Engineer to the effect that Junior Engineer had intimated that the petitioner was absent from 1st June, 1986, without any information, in relation whereof the Assistant electrical Engineer asked for an explanation from this petitioner but no reply has been received by him in relation thereto.
6. According to the petitioner, the Electrical Executive Engineer was not the appointing authority. So, he filed a representation on 2nd September, 1986, before the Electrical Supdt. Engineer who was the appointing authority. A copy of the said representation is contained in Annexure-II to the writ application.
7. The petitioner again filed a representation before the Chairman of the Bihar State Electricity Board. In the meanwhile, Electrical Superintendent engineer issued an office order bearing No.427 dated 2.9.1988 whereby an enquiry was directed to be made as against the petitioner.
8. An Enquiry Report was submitted on 23.1.1989 whereby it was stated that the order of termination was issued illegally as the petitioner should have been given an opportunity and steps should be taken for reinstatement of the petitioner after verification of his explanation.
9. By a letter dated 17.2 1989 addressed to the General Manager-cum-Chief Engineer, muzaffarpur, the r espondent Superintendent Engineer forwarded the enquiry report in which it was stated that the petitioner had submitted a representation to him on 2nd Sept, 1986, and he had sent letters dated 11.6 1986 and 1.7.1986, addressed to the Junior Engineer for extension of his leave upto 31.7.1986.
10. The Superintending Engineer further accepted that the petitioner gave joining on 4.8.1986 with Medical Certificate but his joining was not accepted.
11. The Superintending Engineer, therefore, recommended to the general Manager to consider the case of the petitioner. In the meantime, the respondent Supdt. Engineer was asked by the Deputy Direc
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