2021 Supreme(Del) 1261

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, J.
Anjay Kumar - Appellant
Versus
Union Of India Through The Secretary & Ors. - Respondents
Civil Writ Petition No. 6041 of 2021, Civil Miscellaneous No. 19109, 27059 of 2021
Decided On : 20-12-2021

A confirmed employee gets the protection of the Service Rules governing the organisation.

Headnote:

Writ petition filed by the Executive Director-cum-Secretary (EDCS) of Carpet Export Promotion Council (CEPC) challenging the letter dated 12.06.2021 issued by the Development Commissioner (Handicrafts), Ministry of Textiles, Government of India (respondent No. 2) and the letter dated 23.06.2021 by the respondent No. 3 whereby the petitioner has been issued a Show Cause Notice and suspended from the post of EDCS. Petitioner contended that the impugned letters are illegal, unconstitutional, null and void. It was also contended that the petitioner is entitled to the safeguards under the provisions of Articles 309, 310 and 311 of the Constitution of India. The respondents contended that the petitioner's services were not confirmed and the impugned action is essentially of a private character and as such the petition is not maintainable on merits and is liable to dismissed. HELD, dismissing the petition, that the impugned communication dated June 23, 2021 which is a show cause notice, by which the petitioner has been called upon to reply to the same to enable the respondent No.3 to take further action in the matter is not a final decision. In fact, the petitioner has not even submitted his reply to the show-cause notice. Based on the reply of the petitioner, the respondent No.3 may revoke the suspension and withdraw the allegations or it can be, the respondents may take action in accordance with the rules. Appropriate shall be that the petitioner should reply to the show cause for the consideration of the concerned authority. He can take all pleas available to him, both on facts and in law including the plea of mala fide in his reply to the show cause notice. On a consideration of the reply submitted by the petitioner if the competent authority intends to take any action, the same has to be necessarily in accordance with law/Service Rules being a confirmed employee who gets the protection of the Service Rules governing the organisation.

Fact of the Case:

The petitioner was appointed as EDCS in the respondent No.3 Organisation. The appointment letter stipulated that he is on probation for a period of one year. There is no dispute that the probation of the petitioner was extended for a period of six months from January 01, 2019 to June 30, 2019. The same was also further extended for the period July 1, 2019 to December 31, 2019. It is the case of the petitioner that the COA has authorised the Chairman of the respondent No.3 to take a decision on the regularisation of the services of the petitioner which resulted in his confirmation with effect from January 01, 2018.

Finding of the Court:

The impugned communication dated June 23, 2021 which is a show cause notice, by which the petitioner has been called upon to reply to the same to enable the respondent No.3 to take further action in the matter is not a final decision. In fact, the petitioner has not even submitted his reply to the show-cause notice. Based on the reply of the petitioner, the respondent No.3 may revoke the suspension and withdraw the allegations or it can be, the respondents may take action in accordance with the rules. Appropriate shall be that the petitioner should reply to the show cause for the consideration of the concerned authority. He can take all pleas available to him, both on facts and in law including the plea of mala fide in his reply to the show cause notice. On a consideration of the reply submitted by the petitioner if the competent authority intends to take any action, the same has to be necessarily in accordance with law/Service Rules being a confirmed employee who gets the protection of the Service Rules governing the organisation.

Issues: 1. Whether the writ petition filed by the petitioner is maintainable? 2. Whether the impugned action of the respondents is mala fide? 3. Whether the petitioner is entitled to the safeguards under the provisions of Articles 309, 310 and 311 of the Constitution of India?

Ratio Decidendi: 1. The present writ petition filed by the petitioner is maintainable as the respondent No.2 has to justify its directives to the respondent No.3 for taking a particular action against the petitioner herein. 2. The petitioner being a confirmed regular employee, any action for any misconduct (as seen from show cause notice) shall have to be taken in terms of the Rules governing the service conditions of the employees. 3. The petitioner is entitled to the safeguards akin to the provisions of Article 310 and 311 of the Constitution of India.

Final Decision: The petition is disposed of. No costs.