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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Smt. Lalita Jindal - Petitioner
Versus
State of Himachal Pradesh and Others - Respondents
CWPOA No. 995 of 2020
Decided On : 23-11-2022
Industrial Disputes Act, 1947 - Constitution of India, 1950 - Article 311, 310(1), 58 and 66 - Central Civil Services (Temporary Service) Rules, 1965 - Rule 5 - CCS (Conduct Rules), 1964 - Employee - Termination Order - Petitioner could not join her duties on account of her domestic circumstances - However, she was informed that her services had been terminated by respondent No. 3 – Notice was required to be delivered or tendered to government servant in person and where personal service was not practicable, notice was required to be served through registered post at address. [Para 16]
Finding of the Court: Person appointed as Forest Guard was to remain on probation for a period of two years extendable by maximum period of another two years - On facts, it is clear that petitioner had worked for much more period than prescribed period of probation - Her services were not dispensed with within period of probation - In such circumstances, her services would be deemed to have been confirmed - In such view of matter also, petitioner having served for such a long period was entitled for being heard before terminating her services in aforesaid manner - Respondents have not been able to show compliance of aforesaid provision - It can be seen additionally that appointing authority could terminate services of temporary employee under aforesaid rule forthwith without issuance of notice, but in such event, employee became entitled to one month salary plus allowances for period of notice – Termination order Annexure A-2, is held to be bad in law and same is accordingly quashed and set aside.
Result: Petition allowed.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has prayed for following substantive reliefs:-
(ii) That the applicant be reinstated in service from the date of her illegal termination will all consequential benefits of arrears, seniority and other benefits.”
2. The case of the petitioner in nutshell is that she was appointed as Forest Guard w.e.f. 28.02.1986. She had to proceed on leave w.e.f. 07.08.1995 to 09.08.1995, on account of ill health of her mother-in-law. She could not rejoin as the health condition of her mother-in-law did not improve. Petitioner applied for extension of leave for 15 days by sending a telegram to respondent No.3. Similar request was once again made on 14.09.1995. Petitioner could not join her duties till 01.05.1996, on account of her domestic circumstances. However, on 01.05.1996, she was informed that her services had been terminated by respondent No. 3, vide order dated 30.04.1996.
3. Petitioner initially assailed her termination by raising industrial dispute. The Industrial Tribunal-cum-Labour Court, vide award dated 20.09.2012, dismissed the claim of the petitioner by holding the same to be not maintainable. Petitioner challenged the award passed by learned Tribunal before this Court in CWP No. 373/2013. However, on 30.11.2016, a Co-ordinate Bench of this Court allowed the petitioner to withdraw the claim petition under Industrial Disputes Act, on the premise that remedy of the petitioner was not before Labour Court and liberty was granted to the petitioner to approach the appropriate Forum/Tribunal within six weeks from the date of order passed in CWP No. 373/2013. It was further ordered that in case petitioner availed such remedy within the time allowed by the Court, the same would be adjudicated upon without going into question of limitation. Thereafter, petitioner filed an Original Application No. 7035 of 2016 before State Administrative Tribunal and on closure of said Tribunal, the application came to be transferred to this Court and was registered as CWPOA No. 995 of 2020 i.e. the instant petition.
4. Petitioner has assailed her termination order dated 30.04.1996 being in violation of her constitutional rights. It is submitted on behalf of the petitioner that the impugned order of termination is against the principles of natural justice. The mandate of Article 311 of the Constitution of India, has been violated. No inquiry, whatsoever, was held against the petitioner. As per petitioner, since the consequence of impugned order was punitive in nature, the services of the petitioner could not have been terminated without due process of law.
5. Respondents have contested the claim of the petitioner. It is submitted that petitioner was a temporary employee. She was habitual of taking leave on one pretext or the other. The department had sent a telegram to the petitioner on 28.12.1995 asking her to join the duties, but she did not respond. Finally, a notice was published in the newspaper on 23.03.1996. She was required to join the duties by 16.04.1996, failing which her services would be terminated. Respondents claim that despite the publication of notice, petitioner did not respond and finally her services were terminated on 30.04.1996, vide order Annexure A-2. It is further submitted on behalf of the respondents that due procedure was followed under CCS (Conduct Rules), 1964 before terminating the services of the petitioner.
6. I have heard learned counsel for the parties and have gone through the record.
7. Perusal of termination order, Annexure A-2 reveals that the services of the petitioner were terminated by respondent No. 3 by exercising powers under Rule 5 of Central Civil Services (Temporary Service) Rules, 1965. A reference was made to the reminders sent to petitioner asking her to join duties a
Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, reads as services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by....
The judgment establishes that all government employees, regardless of their employment status, are entitled to the protections of Article 311, which mandates due process in disciplinary actions, incl....
A temporary employee is entitled to the same protection under Article 311(2) of the Constitution of India as permanent employees, especially against stigmatic termination without inquiry.
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Probationers in permanent posts are entitled to protections under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and terminations based on stigmatic allegations must fol....
Employment termination by an inferior authority without due process contravenes Article 311 of the Constitution.
Temporary employees have no right to continue in service, and the civil court lacks jurisdiction to entertain claims based on the Industrial Disputes Act.
: Petitioner has been terminated on the ground of his being surplus in the Force which is not in consonance with principles of law.
A government servant cannot be dismissed without being informed of charges and given a reasonable opportunity to defend, as mandated by Article 311(2) of the Constitution.
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