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2010 Supreme(All) 3878
ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Rama Shankar Sharma -Appellant
Versus
Union of India and others -Respondent
Civil Misc. Writ Petition No. 51378 of 2008
Decided On : 01-11-2010
A.S.G.I., Praveen Kumar Jaiswal, M.I.Khan, Sanjay Kumar, Sanjog Kumar, Prem Chandra
The termination of service must be in accordance with the prescribed procedure and should not be punitive in nature.
Headnote:
Cantonment Fund Servant Rules - Termination - Rule 8(5) of CFSR, 1937 - Rule 11 - Rule 12 - Rule 12(a) - Rule 12(b)
Fact of the Case:
The petitioner was terminated from service without following the procedure laid down in the Cantonment Fund Servant Rules, 1937. The termination was found to be punitive in nature and a denial of adequate opportunity of defense.
Finding of the Court:
The court found that the termination was punitive in nature and was not in accordance with the prescribed procedure, thus amounting to a denial of adequate opportunity of defense.
Issues: The main issue was whether the termination of the petitioner's service was in accordance with the Cantonment Fund Servant Rules, 1937 and whether it was punitive in nature.
Ratio Decidendi: The court held that the termination was punitive in nature and was not in accordance with the prescribed procedure, thus amounting to a denial of adequate opportunity of defense.
Final Decision: The impugned order dated 10.9.2008, terminating the petitioner's service, was quashed and the petitioner was entitled to all consequential benefits and costs.
Heard learned Counsel for the petitioner and Shri M.I Khan, for the respondents and perused the record.
2. With the consent of the learned Counsel for the parties, this writ petition is being finally heard and decided at this stage under the Rules of the Court.
3. The petitioners is aggrieved by the order dated 10.9.2008 which though apparently states that the same is being passed under Rule 8(5) of "The Cantonment Fund Servant Rules, 1937" (hereinafter referred to as 1937 Rules') but as a matter of fact is an order of punishment of removal or dismissal which is a punishment under Rule 11 and that too without holding any enquiry in accordance with the procedure laid down in Rule 12 of 1937 Rules.
4. The facts in brief giving rise to the present dispute are that the petitioner is appointed by order dated 24.1.2003 on probation for a period of six months Rule 6 provides that probation is liable to be extended but this is an admitted position that no specific order of extension was ever passed by the authority concerned. Be that as it may, it is admitted that a show-cause notice was issued to the petitioner on 23.7.2008 for certain misconduct and the petitioner submitted his reply on 5.8.2008. Thereafter, the impugned order has been passed and the relevant extract of the said order is reproduced hereinbelow:
"AND WHEREAS Board after taking an impartial and a clear view on the overall conduct of Mr. Ram Shankar Sharma find him guilty of unbecoming of a Government Servant and exhibited lack of devotion in duty, which is in violation of Rule 3(1) (ii) & (iii) of CCS (Conduct) Rules, 1964 and resolved to terminate his services being a temporary servant of the Cantt. Board Mathura under the provisions of Rule 8(5) of CFSR, 1937 readwith SRO 296, dated 9.11.1981 vide CBR No. 58 dated 29.8.2008.
AND WHEREAS it is further resolved that the above termination lacks the period of 30 days, therefore, Mr. Ram Shankar Sharma is entitled to claim the 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 immediately before the termination of his service or as the case may be for the period for which such notice falls short of one month. NOW THEREFORE, in accordance with the above resolution, his services are terminated w.e.f. 11th sept. 2008 (A/N)."
5. A counter-affidavit has been filed on behalf of respondents No. 2 and 3 wherein it is stated that the petitioner used to commit several omissions and was negligent in discharging duty from time to time for which warning letters were issued to the petitioners on various dates. He was placed under suspension on 6.9.2006. A charge-sheet was issued on 13.10.2006 containing four charges but during the course of enquiry, the petitioner gave an undertaking on 21.6.2007 before the Chief Executive Officer, Cantt. Board, Mathura that the Board, if dropp enquiry against him, he shall not commit any further mistake and work properly. Consequently, the order of suspension was revoked on 28.6.2007. The enquiry was dropped against the petitioner. Thereafter, the authorities notice that the petitioner after revocation of the suspension, again resorted damaging the reputation of the Cantonment Board, Mathura and therefore, the Cantonment Board, Mathura was left with no choice but to suspect his integrity that he is no more loyal, dedicated and interested in the job of the Board for which he has been engaged/employed. Thereafter, before taking a final decision he was given an opportunity to establish and prove the allegations as mentioned in para 5 of the show-cause notice which is quoted below:
(1) Vide letter No. 47 dt 24.11.2006 you wrote to the Hon'ble Defence Minister that the employees had no alternative but to commit suicide or self-immolation.
(2) Which staff have been prevented from performing a religious or marriage by not allowing them to put up a tent.
(3) Vide letter No.102 dt. 16.3.2007, you have stated that Rs. 500/-
