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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sunil Hali, J.
Raj Kumar - Appellant
Versus
Union Of India & Ors. - Respondent
SWP No. 1526/2001
Decided On : 26 November, 2008
Opportunity of being heard - Service Discharge - The court held that the appellate authority must afford the petitioner an opportunity to be heard and provide sufficient reasons for rejecting the appeal. The court also emphasized that special rules will override general law and that the petitioner should have been given one month's notice before discharge.
Fact of the Case:
The petitioner was discharged from service for being absent, challenged the order in a writ petition, and subsequently in an appeal. The appellate authority dismissed the appeal without affording the petitioner an opportunity to be heard and without providing reasons for the dismissal.
Finding of the Court:
The court found that the petitioner was not given an opportunity to be heard and that the dismissal of the appeal without providing reasons was not in compliance with the order. The court also held that the petitioner should have been given one month's notice before discharge.
Issues: The issues raised were the lack of opportunity to be heard and the failure to provide reasons for the dismissal of the appeal, as well as the incorrect invocation of rules for the petitioner's discharge.
Ratio Decidendi: The court emphasized that the appellate authority must afford the petitioner an opportunity to be heard and provide sufficient reasons for rejecting the appeal. It also highlighted that special rules will override general law, and the petitioner should have been given one month's notice before discharge.
Final Decision: The petition was allowed, the order of discharge was quashed, and the respondents were directed to reinstate the petitioner from the date of discharge, with entitlement to all emoluments.
2. In pursuance to said direction, the respondents issued an order dated 17.05.2000, whereby they have dismissed the appeal of the petitioner. It is this order which is subject matter of challenge in this writ petition.
3. I have heard learned counsel for the parties and perused the record.
4. The petitioner has raised two pleas in this petition.
(a) That the appellate authority has decided the appeal without affording him an opportunity of being heard and no reason has been given by the appellate authority while passing the order;
(b) That the petitioner was a member of the CRPF and was required to be given one months notice by the appointing authority before issuing the order of discharge. Instead respondents invoked Rule 5 of Central Services (Temporary Services) Rules, 1965 which entitles the Government Servant of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing.
5. So far as the first contention of the petitioner is concerned, the direction given to the respondents was to pass a fresh order only after affording an opportunity of being heard. The words opportunity of being heard do not have any constructive meaning, but it encompass all such requirements which are required to be followed by observing the rules of natural justice. It is not an ideal formality. Hearing entails that the petitioner should have been allowed to make representation and canvass the issue raised by him during the course of hearing which was afforded to him. Mere filing of appeal and its dismissal without giving any reason or observing rules of natural justice in my opinion would not be a sufficient compliance of the order. The order impugned has only given narration of facts, but no reasons have been recorded by the appellate authority while dismissing the appeal. In other words, the appellate authority was required to give sufficient reasons for rejecting the appeal. It appears that the petitioner was not heard as is revealed from the order impugned. I accordingly hold that the present appeal has been disposed of without affording an opportunity of being heard to the petitioner.
6. Now coming to the 2nd question that the respondents have invoked Rule 5 of Central Services (Temporary Services) Rules, 1965 and Rule 16 of CRPF Rules. It is a settled proposition of law that special rules will always override the general law. The general law can only be invoked once the rules are silent. Admittedly, the petitioner was governed by Rule 16 of CRPF Rules for the purpose of ordering his discharge. Rule 16 of CRPF Rules contemplates that all the members of the force shall be enrolled for a period of three years and during this period of engagement, they shall be liable to discharge at any time on one months notice by the appointing authority. In this case the petitioner has yet to complete three years and he could be discharged by invoking Rule 16 of the CRPF Rules provided he was given one months notice. The respondents instead have invoked Rule 5 of Central Services (Temporary Services) Rules, 1965 by giving pay and allowance for the period of notice. This in my opinion could not be done by the respondents. The petitioner is strictly governed by Rule 16 of CRPF Rules which envisages one months prior notice before ordering his discharge. This has not been followed
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