Gajju Ram Sahu vs State of Chhattisgarh and another

Mr. Pritinker Diwakar, J.—Challenge in the present writ petition is to the order dated 23-10-2009 (Annexure P-4) passed by respondent No. 2 terminating the services of the petitioner after finding him unsuitable to hold the post in view of Clause 8 of the regularisation order dated 13-8-2008 (Annexure P-2). facts of the case in brief are that from 31-12-1985 the petitioner was working us daily rated labourer and pursuant to the circular dated 5-3-2008 issued by the State Government (Annexure P-1) his services were regularised vide order dated 13-8-2008 (Annexure P-2). As per Clause 8 of the regularisation order the petitioner was required to undergo character verification by the police. The said clause also mentions that if any adverse remark is found by the police in the character verification, services of the incumbent would be terminated without giving any opportunity of hearing or conducting Departmental Enquiry against him.

According to the case of the respondents, after issuance of regularisation order when character verification of the petitioner was made by the police, it was found that Crime No. 21/1980 was registered against him under Sections 147, 148, 149, 324, 326 and 452, IPC and vide judgment dated 25-8-1987 he was convicted u/s 323, IPC and imposed a fine of Rs. . 100, in default of payment of fine to undergo simple imprisonment for one month. According to the respondents, in view of Clause 8 of the regularisation order, services of the petitioner are liable to be terminated and that way the order impugned dated 23-10*2009 (Annexure P-4) is fully justified.

Counsel for the petitioner submits that the petitioner had not suppressed any fact while filling-in the attestation form (Annexure P-9) and in column 12 thereof he has categorically stated about his conviction u/s 323, IPC and resultant imposition of fine of Rs. . 100/-. Counsel for the petitioner referred to the judgment of the Trial Court dated 25-8-1987 (Annexure P-7) by which the petitioner has been convicted u/s 323, IPC. He submits that conviction of the petitioner does not fall within the purview of moral turpitude rendering him unsuitable for the Government service and therefore, his services ought not to have been terminated. According to the Counsel for the petitioner was a confirmed employee of the State Government and, therefore, by no stretch of imagination his services could be terminated without giving any notice to him.

On the other hand, Counsel for the respondents/State submits that the respondents were not under compulsion to conduct any Departmental Enquiry because as per Clause 8 of the regularisation order dated 13-8-2008, services of the petitioner were regularized in anticipation of his character verification by the police and it was clearly mentioned in the said clause that in case any adverse remark was found by the police, his services would be liable to be terminated, He submits that ii is not in dispute that the petitioner was convicted u/s 323, IPC and therefore, giving notice or conducting Departmental Enquiry against him would have been a futile exercise.

Heard Counsel for the parties and perused the documents available on record.

From the documents available on record it is apparent that the petitioner was a regular employee of Water Resources Department working as labourer. From the service book of the petitioner (Annexure P-8), it is apparent that apart from regular increments he was granted benefit of 6th Pay Commission also after his regularisation. Thus, for all practical purposes, the petitioner was confirmed employee of the Government. It is now a settled legal position that services of a confirmed employee cannot be terminated without giving notice or conducting Departmental Enquiry against him even if he had suppressed relevant information in column 12 of the attestation form. In the case of Kamal Nayan Mishra Vs. State of Madhya Pradesh and Others, , it has been held by the Apex Court as under :--

The form also required the appellant to certify that the information given by him in the said form was correct and that if any information was found to be false or incomplete in any material respect, the Appointing Authority may terminate him from the service without giving notice or showing cause.

A confirmed Government servant is the holder of a civil post entitled to the benefits of the safeguards provided by Article 311 of the Constitution. On the other hand, a probationer does not have any substantive right to hold the post, and is not entitled to the protection under Article 311. A probationer''s services can be dispensed with during the period of probation, or at the end of the probation period, if his service is found to be unsatisfactory or if he is found to be unfit for appointment.

The learned Counsel for the respondents drew our attention to the instructions to the employees in the preamble to the attestation form and the undertaking contained in the verification certificate by the employee at the end of the attestation form, which puts him on notice that any false information could result in termination of his service without enquiry. It is contended that as the attestation form stated that an employee could be terminated without notice, if he furnishes false information, the employee is estopped from objection to termination without notice. The said contention may merit acceptance in the case of the probationer, but not in the case of a confirmed Government servant.

No term in the attestation form, nor any consent given by a Government servant, can lake away the constitutional safeguard provided to a Government servant under Article 311 of the Constitution.

A seven-Judge Bench of this Court held in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., , as follows while negativing a contention that a person who enters service by executing a contract containing a rule contrary to Article 311. with open eyes, cannot be permitted to challenge the validity of the said rule or the contract (AIR p. 611, Paras 31-32) :--

31.......In our opinion, this approach may be relevant in dealing with purely commercial cases governed by rules of contract; but it is wholly inappropriate in dealing with a case where the contract or the Rule is alleged to violate a constitutional guarantee afforded by Article 311

(2)...

Let us then test this argument by reference to the provisions of Article 311 (1), Article 311 (1) provides that no person to whom the said article applies shall be dismissed or removed by an authority subordinate to that by which he was appointed. Can it be suggested that the Railway Administration can enter into a contract with its employees by which authority to dismiss or remove the employees can "be delegated to persons other than those contemplated by Article 311 (1) ? The answer to this question is obviously in the negative, and the same answer must be given to the contention that as a result of the contract which embodies the impugned Rules, the termination of the railway servant''s services would not attract the provisions of Article 311 (2) though, in law, it amounts to removal.

The termination of the appellant without an enquiry or hearing was illegal and valid. In the normal course, we would have set aside the termination and directed reinstatement with consequential benefits, reserving liberty to the employer to initiate disciplinary proceedings. But the peculiar facts of this case require us to adopt a slightly different approach to do complete justice between the parties.

We have already pointed out that there are clear indications that the appellant was bona fide under the impression that he was required to give the particulars sought in Column 12 of the form with reference to the date of his appointment. Further, the entire matter relates to an attestation form given in 1994 and the appellant has already been out of service for more than seven years on account of the illegal termination from service without an enquiry on 7-3-2002. We are therefore, of the view that the interests of justice would be served if the appellant is reinstated with continuity of service and other consequential benefits, dispensing with any further disciplinary action. The appellant will not be entitled to any salary for the period 7-3-2002 till today.

We accordingly, allow this appeal, set aside the judgments of the learned Single Judge and the Division Bench. The writ petition filed by the appellant before the High Court is allowed, setting aside the termination dated 7-3-2002. The respondents are directed to reinstate the appellant with continuity of service and other consequential reliefs (except salary for the period 7-3-2002 till date)."

In view of the above factual and legal position, this Court is of the considered "opinion that the petitioner being a confirmed employee of the Government, his services cannot be terminated without affording him an opportunity of hearing or conducting Departmental Enquiry against him. Accordingly, the order impugned is set aside. Respondents are directed to reinstate the petitioner treating him in continuity of service with all the consequential benefits (except the salary for the period from 23-10-2009 till date). Petition is thus allowed.