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1987 Supreme(All) 575
HIGH COURT OF ALLAHABAD
B.L. YADAV, J.
Parasu Ram Misra - Appellant
Versus
U. P. State Road Transport Corporation - Respondent
Second Appeal No. 2200 of 1980
Decided on : Dec 15, 1987
S.R. Mishra, H.R. Mishra, S.K. Sharma
An oral order of termination of service based on complaints of misconduct without affording an opportunity of hearing is violative of Article 311(2) of the Constitution.
Headnote:
INDUSTRIAL DISPUTES - TERMINATION OF SERVICE - U. P. INDUSTRIAL DISPUTES ACT, 1947 - SECTION 6-N - U. P. STATE ROAD TRANSPORT CORPORATION ACT, 1950 - SECTION 21 - APPOINTMENT OF CONDUCTOR IN SUBSTANTIVE VACANCY - BREAK IN SERVICE - CONDONATION - ORAL ORDER OF TERMINATION - VIOLATION OF ARTICLE 311(2) OF THE CONSTITUTION.
Fact of the Case:
The plaintiff, a bus conductor in the U. P. State Road Transport Corporation, was orally informed on 1-6-1976 that his services were terminated. He challenged the termination, claiming that he was appointed in a substantive vacancy and that the termination was illegal as he was not given an opportunity to show cause or to be heard.
Finding of the Court:
The court held that the plaintiff was appointed in a substantive vacancy and that the break in service was condoned. It also held that the oral order of termination was based on complaints of corruption against the plaintiff and that he was not given an opportunity to explain his conduct, which violated Article 311(2) of the Constitution.
Issues: 1. Whether the plaintiff was appointed in a substantive vacancy or for a fixed term? 2. Whether the oral order of termination was a simple order of termination or was it by way of punishment? 3. Whether the background leading to the impugned order can be looked into in order to ascertain the nature and form of the order? 4. What shall be the effect of the gap in service, can it be condoned?
Ratio Decidendi: 1. The court held that the plaintiff was appointed in a substantive vacancy based on the evidence on record, the facts and circumstances of the case, and the judgments of the courts below. 2. The court held that the oral order of termination was not a simple order of termination but was based on complaints of corruption against the plaintiff and that he was not given an opportunity to explain his conduct, which violated Article 311(2) of the Constitution. 3. The court held that the background leading to the impugned order can be looked into in order to ascertain the nature and form of the order. 4. The court held that the break in service can be condoned and that the plaintiff would be treated to be in continuous service from his initial appointment.
Final Decision: The court allowed the appeal, set aside the decree of the lower appellate court, and restored the decree of the trial court. The plaintiff's suit was decreed with costs throughout. The appellant shall be treated in continuous service and he shall be entitled to all his back salary with financial and other benefits.
B. L. Yadav, J.
1. This is plaintiffs second appeal in a suit for declaration that the order dated 1-6-1976 orally terminating the services was illegal.
2. The plaintiff-appellant alleged that he was appointed on 24-11-1971 as Bus Conductor in U. P. State Road Transport Corporation on usual pay scale. He was directed to deposit Rs. 200/- as security. He was working as such till 31-5-1976. There was no complaint against his conduct from any quarter and his services were appreciated. He was granted annual increments. He was serving in U. P. Bus no. 264. On 1-6-1976 defendant no. 2, the Asstt. Regional Manager, issued a verbal instruction to the plaintiff not to come to the work as his services were terminated. He asked for the reasons, but the same were not applied. No written order terminating his services was passed. He made a representation and met personally respondent no. 2 requesting him either to disclose the charges or permit him to discharge his duties, but all this was in vain. The plaintiff was not served with the charge-sheet nor he was suspended. No notice for termination was given and it appears that against some anonymous complaints and on the basis of some secret enquiry about which he was not informed nor he has any knowledge, his services were terminated by verbal orders. His case was that he was appointed in substantive capacity and termination of his service by oral order without any opportunity of hearing was by way of punishment. The relief claimed was that order terminating his services may be set aside and he may be declared to be in continuous service.
Defendant-respondents contested the suit denying the plaint allegations. It was mainly urged that the appellant was not appointed in substantive vacancy rather he was appointed from time to time since 1971. The term of the plaintiff was not extended beyond 25-8-1972 as there were complaints of corruption against him. The representation of the plaintiff was dismissed on 18-11-72. Again during mass strike in the month of March, 1973 the plaintiff was given appointment with effect from 17-2-1973, which was extended upto 31-5-1976 and it was not extended thereafter. The plaintiff can seek his remedy under the U. P. Industrial Disputes Act, 1947. The following issues were framed :-
(1) Whether the order of termination is illegal ?
(2) Whether the suit is barred by provisions of Industrial Disputes Act ?
(3) Whether the suit is barred by time ?
(4) To what relief, if any, is the plaintiff entitled.
3. Both the courts below have decided issues no. 2 and 3 in favour of the plaintiff. The learned Additional Munsif however, held that the appellant was not appointed for a fixed term rather he was appointed in substantive vacancy on the date of the termination of the service, there were some complaints of corruption against the appellant and the verbal order of termination apparently was innocuous, but in the back-ground there were complaints of corruption ; the impugned oral order was passed without any opportunity either to show cause or to be heard. The trial court consequently decreed the suit. The defendant-respondents preferred an appeal, which has been allowed up-holding the findings of the trial court that the suit was not barred by provisions of Industrial Disputes Act, nor the same was time barred. The appeal has been allowed by the court below on the grounds that the appellant was not appointed in the substantive vacancy rather he was appointed for a fixed term and the order of termination was not by way of punishment nor it was an order of dismissal, it was perfectly correct.
4. The learned counsel for the plaintiff-appellant urged that the appellant was not appointed from time to time for a fixed period, rather he was appointed as a Bus Conductor in substantive vacancy, even the increments were given to the appellant, who has been serving regularly since 24-11-1971, but in the service record there appears to be some break. The verbal order of termi
