An employer cannot terminate the services of an employee without initiating a disciplinary proceeding, framing charges against the employee, and finding the employee guilty of those charges.

JUDGMENT :

B. Panigrahi, J. - Being aggrieved by the order of termination dated 27-7-1986 and the dismissal of the appeal by order dated 27-4- 1989, annexed as Annexure-2, the petitioner has approached this Court.

2. Petitioner's case, in brief, is that after the death of his father in May, 1976, who was an employee in Rampooria Cotton Mills, a Unit under the National Textile Corporation, the petitioner applied for a job on 4-6-1980. After waiting for two and half years, the petitioner got an appointment as Apprentice on 25-12-1983. Though the management asserts that the appointment was as a 'Badli', but the petitioner asserts that he was a regular employee, he having been issued with a Permanent Ticket No. 12076. While continuing in service, he remained absent from duty on account of his illness and applied for leave on medical ground accompanied by the medical certificate. The employer instead of granting leave to the petitionar ultimately terminated his service on 27-7-1986 without initiating any proceeding against him and without finding him guilty of any charges. Prior to the said termination, to General Manager, National Textile Corporation, had written a letter to petitioner to his home address stating therein that the irregular attendance of the petitioner is not conducive to maintenance of discipline in the Department and hampers production in the Department and the petitioner has violated the undertaking of not absenting himself form duties without proper sanction of leave and called upon the petitioner to join within eight days failing which his name would be struck off from the muster roll. The said document is annexed to the writ application as Annexure-3(a), A similar letter was also received by the petitioner from the General Manager, National Textile Commissioner, annexed as Annexure-3(b) and finally the intimation that his name has been struck off by letter dated 27-7-1986, annexed as Annexure-3(c). The petitioner thereafter filed some representation and then on the basis of an assurance from the Manage- ment that his case for reinstatement will be re-considered and the order of termination will be withdrawn if the petitioner admits his fault, the petitioner was forced to write a letter on 29-10-1986 But even thereafter his case was not considered and he filed an appeal to the Chairman on 13-2-1989, annexed as Annexure-5. The appellate authority did not entertain the appeal as per Annexure-2. The petitioner then filed an application in this Court which was registered as OJC No. 1162 of 1991, but as the application did not contain sufficient materials, In courge of hearing he withdrew the same with liberty of re-filing and accordingly re-filed the present application on 8-11-1991 which was registered as OJC No. 5261 of 1991.

The main ground on which the petitioner assails the legality of the order of termination is that without holding a disciplinary proceeding levelling charges against the petitioner, ipso facto an order of termination could not have been passed merely on the ground of absence of the petitioner, particularly when the petitioner had applied for leave on the ground of illness and had appended medical certificate in support of the same. So far as the appellate order is concerned, the main ground of attack is that the appellate order is not a speaking order and the appellate authority does not appear to have applied his mind to the contentions raised in the memorandum of appeal.

3. Pursuant to notice issued by the Court, the opposite parties filed an affidavit, but did not enter appearance through any counsel and the said counter affidavit was directed to be ignored by order dated 241- 994 if the opposite parties fail to enter appearance within a week from the date of the order. No appearance having been made in accordance with the aforesaid order, the counter affidavit stood ignored from consideration.

Even though legally the counter affidavit stands excluded from consideration, but since it is open f