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2017 Supreme(Pat) 714
IN THE HIGH COURT OF JUDICATURE AT PATNA
PRABHAT KUMAR JHA, J.
Alok Kumar Singh Son of late Mohan Singh - Petitioners
Versus
The State of Bihar - Respondents
Civil Writ Jurisdiction Case No.16699 of 2008
Decided On : 21-02-2017
For the Petitioners:Mr. Amarendra Kumar, Advocate.
For the State : Mr. Alok Kumar Rahi, AC, Mr. Piyush Lall.
The main legal point established in the judgment is that a temporary employee should be deemed to have been confirmed after serving successfully during the probation period and cannot be terminated without following the prescribed procedure. The judgment also emphasized the obligation of the appellate authority to give reasons after considering the grounds of the appellant.
Headnote:
Natural Justice - Termination of Temporary Employee - Bihar Civil Court Rules, 1998 - Rule 5, Rule 13 - [Mohan Singh] - [Termination of Temporary Employee] - [Rule 5, Rule 13] - The court discussed the legality of terminating a temporary employee without following the procedure of termination in accordance with law. It emphasized that the employee, who was appointed temporarily, should be deemed to have been confirmed after serving successfully during the probation period and cannot be terminated without following the prescribed procedure.
Fact of the Case:
The petitioner, a temporary employee, was terminated from his service without following the procedure of termination in accordance with law. The petitioner's widow and sons were substituted as petitioners after his death. The petitioner was appointed as a Peon in the Civil Court in 1977 and was terminated in 2003. The respondents argued that as a temporary employee, the petitioner had no right to hold the post and therefore, there was no violation of natural justice in his termination.
Finding of the Court:
The court found that the termination of the temporary employee without following the prescribed procedure was illegal. It held that the petitioner should be deemed to have been confirmed after serving successfully during the probation period and therefore, his service cannot be terminated without following the procedure of termination in accordance with law. The court also emphasized that the appellate authority is obliged to give reasons after considering the grounds of the appellant, and failure to do so amounts to a violation of natural justice.
Issues: The main issue was whether the termination of the temporary employee without following the prescribed procedure was legal and whether the appellate authority was obliged to give reasons after considering the grounds of the appellant.
Ratio Decidendi: The court's decision was based on the interpretation of Bihar Civil Court Rules, 1998 - Rule 5 and Rule 13, which prescribe the mode of recruitment of class-IV employees and the period of probation of employees appointed in Civil Courts of Bihar. The court emphasized that the petitioner should be deemed to have been confirmed after serving successfully during the probation period and therefore, his service cannot be terminated without following the prescribed procedure. The court also highlighted the obligation of the appellate authority to give reasons after considering the grounds of the appellant.
Final Decision: The writ petition was allowed, and the orders of termination were set aside. The legal heirs of the original petitioner were entitled to get the retiral benefits.
1. Heard learned counsel for the petitioners and learned counsel for the State.
2. The petitioner seeks quashing of the order dated 29.05.2003 Annexure-10 to the supplementary counter affidavit filed on behalf of respondent no. 3 issued by the District Judge, Buxar by which the petitioner was dismissed from his service and further seeks quashing of the order as contained in Memo No. 1040 dated 12.08.2008 (Annexure-8) issued under the signature of the Registrar (Admn.) High Court of Judicature at Patna by which the appeal against the order of his termination has been dismissed. The petitioner states that the order of termination was never served or communicated to the petitioner. During the pendency of this writ petition, the petitioner died and his widow and sons were substituted vide order dated 19.01.2017.
3. The facts which are relevant for disposal of this writ petition are that the petitioner was appointed on the post of Peon of 29.07.1977 in the Civil Court, Arah. In the year 1979, itself, the petitioner was transferred to Civil Court, Buxar, but the petitioner absented himself on account of his mental illness since 03.05.1996. The petitioner was under the treatment of Dr. U.N. Choudhary till 10.10.2007. The petitioner joined on 11.10.2007, but his joining was not accepted. On 22.11.2007 the petition of the petitioner for accepting his joining was rejected as disclosed by the Judge-in-charge, Civil Court, Buxar that he was terminated from the service vide order dated 29.05.2003 and the same was communicated to the petitioner vide Letter No. 338 dated 3rd June, 2003. The petitioner on such communication filed appeal before the Registrar General, Patna High Court. The High Court have been pleased to dismiss the appeal and the same was communicated to the petitioner vide Memo No. 1040 dated 12.08.2008 as contained in Annexure-8.
4. Respondent No. 3 filed the counter affidavit and stated that the petitioner was temporarily appointed on the post of Peon on 29.07.1977 vide order dated 93/77. The petitioner was habitual absconder from duty without any leave for which he was warned to be careful under order dated 08.12.1993 for his absence for many days. The petitioner remained absent from his duty from 03.03.1996 till the order of dismissal and he was again warned but he did not take care. The petitioner did not file petition on 02.05.1996 about his absence and treatment. A notice was sent through special messenger vide Letter No. 63 dated 29.06.1996 to the petitioner but the petitioner was not found present and the notice was hanged at the door. Again vide Letter No. 64 dated 10.07.1996 he was asked to explain but no reply was given. A notice was also sent on 01.10.2002 to show cause about his absence from 03.03.1996 but no information was sent and no show cause was filed by the petitioner. A notice was issued in the newspaper on 25.02.2003, but the petitioner did not join his service and consequently vide Order No. 10/2003 dated 29.05.2003 the District and Sessions Judge, Buxar dismissed the petitioner from service. It is stated that since the petitioner was temporarily appointed on the post of Peon, therefore, he cannot claim the violation of principle of natural justice, but the answering respondents has also admitted that no specific reply is given in any paragraph of the writ petition as no departmental proceeding was initiated against the petitioner for his long absence.
5. Learned counsel for the petitioner submits that that the petitioner was appointed on 29.07.1977. The petitioner was appointed temporarily on the post of Peon in a pay scale and the petitioner continued in his service, but he was terminated without initiating a departmental proceeding. Learned counsel for the petitioner placed his reliance on a judgment reported in AIR 1964 SCC 600 (Moti Ram Deka vs. General Manager, N.E.F.) Learned counsel for the petitioner further submits that even in the counter affidavit the answering respondents has not sta
