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PATNA HIGH COURT
Asok Kumar Ganguly, J.
Raghunath Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1475 of 1991 ;
Decided On : MAY 6, 1996
NATURAL JUSTICE - PRINCIPLES - APPLICATION - TERMINATION OF SERVICE - GOVERNMENT EMPLOYEE - REQUIREMENT OF HEARING - INTERPRETATION OF STATUTE - SUB-SECTION (3) OF SECTION 5 OF THE BIHAR PRIVATE ENGINEERING COLLEGE (TAKING OVER) THIRD ORDINANCE, 1990 - PRINCIPLES OF NATURAL JUSTICE ARE APPLICABLE TO THE TERMINATION OF SERVICE OF EMPLOYEES UNDER THE SAID SUB-SECTION - THE REQUIREMENT OF HEARING IS A PART OF THE INBUILT CONTENT OF ARTICLE 14 OF THE CONSTITUTION OF INDIA - THE SUB-SECTION DOES NOT EXCLUDE THE REQUIREMENT OF HEARING EITHER EXPRESSLY OR BY NECESSARY IMPLICATION - THE SUB-SECTION IS SILENT ABOUT IT - THE COURT CAN READ INTO IT THE REQUIREMENT OF OBSERVING THE PRINCIPLES OF NATURAL JUSTICE TO SAVE IT FROM THE VICE OF UNREASONABLENESS - THE COURT CAN READ DOWN THE PROVISIONS OF THE SUB-SECTION IN THE AFORESAID MANNER INASMUCH AS THE SUB-SECTION, WITHOUT EXCLUDING IN EXPRESS WORDS THE REQUIREMENT OF NATURAL JUSTICE, IS JUST SILENT ABOUT IT.
Fact of the Case:
The petitioners were employees of various private engineering colleges in Bihar. The State Government took over these colleges by virtue of the Bihar Private Engineering College (Taking Over) Ordinance, 1986. The petitioners were allowed to continue in their services on an ad hoc basis on the condition that they would be absorbed after scrutiny by a Screening Committee. A Screening Committee was constituted and it submitted a report stating that 250 employees were appointed after due selection process and the District Magistrate found after scrutiny that the appointment of the petitioners are valid and genuine. However, the petitioners' services were terminated by the State Government without giving them any opportunity of hearing.
Finding of the Court:
The Court held that the requirement of giving the petitioners an opportunity to present their case flows from the provisions of sub-section (3) of Section 5 of the said Ordinance under which the impugned orders have been passed and the second phase is whether such an opportunity, even if it is not tacit under sub-section (3) of Sec.5 of the Ordinance, is a part of the inbuilt content of Article 14 of the Constitution of India which within its sweep envelopes fair play as a facet of the doctrine of audi alteram partem.
Issues: Whether the requirement of giving the petitioners an opportunity to present their case flows from the provisions of sub-section (3) of Section 5 of the said Ordinance under which the impugned orders have been passed?
Ratio Decidendi: The Court held that the principles of natural justice are applicable to the termination of service of employees under sub-section (3) of Section 5 of the Bihar Private Engineering College (Taking Over) Third Ordinance, 1990. The requirement of hearing is a part of the inbuilt content of Article 14 of the Constitution of India. The sub-section does not exclude the requirement of hearing either expressly or by necessary implication. The sub-section is silent about it. The Court can read into it the requirement of observing the principles of natural justice to save it from the vice of unreasonableness. The Court can read down the provisions of the sub-section in the aforesaid manner inasmuch as the sub-section, without excluding in express words the requirement of natural justice, is just silent about it.
Final Decision: The Court allowed the writ petitions and quashed the impugned orders of termination of services of the petitioners. The respondents authorities were directed to give to each of the petitioners an opportunity of hearing within a period of four months from the date of receipt/production of a copy of the judgment and thereupon take a decision under sub-section (3) of Sec.5 of the said Act.
A. K. Ganguly, J.
1. All these matters were heard together as common question of law is involved in all these cases. There are some factual difference is respect of the matters in question but those are not material for the purpose of the judgment which has been delivered in this case. As the basic question of law is the same, all these matters are disposed of by this common judgment.
2. The subject-matter of challenge in these writ petitions are orders of termination of services of the petitioners under the provisions of sub-section (3)of Sec.5 of the Bihar Private engineering College (Taking Over) Third ordinance, 1990 (hereinafter referred as the said Ordinance. The broad grounds on which the orders of termination have been passed in this batch of writ petitions are summarised as follows :
(i) In some cases services of the petitioners have been terminated on the ground that the petitioners are over age.
(ii) In some cases the services of the petitioners have been terminated on the ground that they are surplus.
(iii) In some cases the services of the petitioners have been terminated on the ground that they are not qualified.
(iv) In some case services of the petitioners have been terminated on the ground that their names so appointed were inserted after the announcement of take over of the colleges in questionby the State government.
(v) In some cases the services of the petitioners have been terminated on the ground that the persons concerned are qualified in subjects which are not taught in Engineering Colleges. But in none of the cases the persons concerned, whose services have been terminated were ever given any opportunity of hearing.
3. There is another aspect of the matter also. In most of the writ-petitions it has been contended that at present there are sufficient vacancies in the taken over Colleges to accommodate all the petitioners. This is also a factual position and decision on this can only be made if an opportunity of hearing is afforded to the petitioners.
4. The facts of the case as averred in C. W. J. C. No.1316 of 1991 are as follows : pursuant to an advertisement dated 11th June, 1981, some of the petitioners applied for being appointed in the Indian College of Engineering, motihari and were ultimately appointed on the basis of a selection process. The designation and date of joining of the petitioners have been given in paragraph 10 of the writ-petition. The petitioners case is that they were appointed validly by the Governing Body of the said College.
5. Sometime in the year 1986 an ordinance was promulgated which was known as Bihar Private Engineering college (Taking Over) Ordinance, 1986. As a result of the said Taking over Ordinance, the Indian College of engineering, Motihari, was taken over by the State Government on 9th december, 1986. As a legal consequence of such take over the teaching and non-teaching staff of the Colleges thus taken over were allowed to continue in their services on ad hoc basis on the condition that they would be absorbed after scrutiny by the Screening committee to be set up under the Ordinance.
6. The petitioners thus started working on ad hoc basis in terms of the ordinance of 1986. After taking over of the said College under the aforesaid ordinance, on 14th April, 1987, a screening committee was constituted and the screening committee was directed to give report within ten days. Ultimately the screening committee submitted a report, dated 15th September, 1987 stating therein that out of 273 employees, 250 employees were appointed after due selection process and the District Magistrate found after scrutiny that the appointment of the petitioners are valid and genuine. Thereafter the District Magistrate continued further scrutiny of the employees and on perusal of the report of the screening committee the District magistrate submitted a supplementary list of twenty-one employees on 12th january, 1988, in which the appointment of twenty-one employees was found genu
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