Pyare Lal Sharma vs Managing Director, J&K Industries Ltd.

The petitioner challanges order No: JKI/46/83 dt 1461983 whereby his services have been terminated by the Managing Director of the

respondent Company. The challenge is made that the said order has been passed with out enquiry and has been issued by & person who was not

the appointing authority of the petitioner. From the perusal of the record it appears that a show cause notice was issued to the petitioner that he

was unauthorisedly absent from duty continously from 21121982 and 15 days notice in terms of Rules of the Company was served on him. The

said notice is said to have been received back in the office and when it was delivered to him on 751983 he is said to have failed to explain his

position, thereafter the following order was made:

It has now also been established that Shri Sharma was taking part in active politics during the period of his unauthorised absence and has filed

nomination papers for contesting election from Baramulla Parliamentary Constituency, how that his unauthorised absence as well as his taking part

in the active politics has been established, and in exercise of the powers vested in the management under Jammu and Kashmir Industries

employees service Regulations the services of said Sh. Pyre Lal Sharma Chemical Engineer J&K Industries limited are herby terminated.

The respondents have filed their reply affidavit and have justified this order as being good and well reasoned and in accordasee with the Rules of

the Company.

A connected writ petition No: 661/83 was referred to the Full Bench. The question referred to the Fall Bench was as to whether respondent

Company was amenable to the writ jurisdiction of this Court. An earilier decision of the Full Beach of this court in Abdul Ahad's case (AIR 1979

J&K 57) had held that a State owned Company was not an authority within the 12 of the Constitution of India and therefore of Art tion of this

court. On the basis held the respondent Company to the amenable to the wnt junsdiction of this court. Therefore, the present writ petition is

maintainable.

Mr. Nehvi appearing for the responpent has produced before me an order No: JKI/14/83 dated 2041983 which is in the natural of a Rule and

Rule 16.14 had been modified and recasted as under:

16.14 The services of an employee shall be terminated by the Company if:

a) his post is abolished, or

b) he is declared on medical grounds to be unfit for further service, or

c) if he remains on unauthorised absence, or

d) if he takes part in active polities,

In the case of (a) and (b) above the services shall be terimated after giving three month's notice to a parmanent employee and one Month's notice

to a temporary employee or pay in lieu thereof

In case of (c), and (d) above the services of an employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from

the date of issue of notice. The Management shall be empowered to take a decision without resorting to father enquiries.

By order of the Board of Director."" From the perusal of this Rule, it appears that three months notice is required to be given to permanent

employee and one month's notice is to be given to the temporary employee for showing cause in respect of the proposed punishment and in the

case of unauthorised absence or taking part in active politics, 15 days notice is required to be given to the employee to explain his conduct and if

the employee fails to explain, the enquiry is dispensed with

Termination of service is a major punishment The petitioner was asked to show cause about his alloged unauthorised absence from the

particulars dates. While terminating his service he was punished for having indulged in politics by filing nomination paper for parliamentary

eleottions from IBarmulla Parlimentary Constituency and it was held by the Managing Director of the Company that it was established that be has

remained absent and during his unauthorised absence he has indulged in pelitics. Theaefore Rule 16 14 as modified in 1983 was applied to his

case. Initially he was only accused of having remained unauthoisediy absent but the punishment was passed for his having indluged in politics.

Admittedly in respect of the second accusation, i. c. participating in politics of filing nomination paper for parlimentary elections was not conveyed

to him before. He was not asked no explain as to whether the accusation was correct and what he had to say. This ground was taken into

consideration while issuing the impugned order of termination without informing the petitioner about the same. Rule '6 14 itself makes it incumbent

on the respondent Company to issue a show cause notice to an employee who to accused of indulging in politics The Managing Director of the

respondent Company has in violation if its own rule terminated the service of the petitioner with out enabling him to explain his case. He could have

explained the accusation had he been asked to explain in terms of Rule16.14 by giving him 15 days notice. If he did not reply that would not

absolve the Company from helding the enquiry about his conduct. The Rule 1614 which has dispensed with the conduct of enquiry in respect of

the accusation levelled against the employee on which he is sought to be removed from service appears to be dekors of guarantees contained in

Art, 14 of the Constitution of India. Enquiry cannot dispensed with if an employee is sought to be removed from service, therefore, to that extent

the Rule is arbitrary and bad.

A suming that the petitioner could be removed from service on the ground unauthorised absence from duty or taking part in politics, the

requirement of law was to afford him an opportunity of explaining his conduct The first charge was only accusation of unauthorised absence from

duty. The termination order has been passed on another accusation also which is that the petitioner has taken part in politics. To that extent the

petitioner was not asked to explain his conduct. Therefore the termination order impugned in this petition cannot be sustained as it violative of Art.

14 of the Constitution of India. The petitioner has been condemned unheard and in violation of the quzrantees of the Constitution Art. 14 of the

Constitution mandates that there shall be equality before law and equal protection of law for all the citizens of India. The petitioner admittedly B a

citizen of India and protection under Art. 14 is available to him He cannot be denied that protection merelybecause be has been serving in a

Company owned by the State. Mr. Nahvi has contended that the guarantees of Art. 311 of the Constitution of India are not available to the

employees of the Company That may be true but where guarantees of Art 14 of the Constitution are violated, this court in writ jurisdiction is

obliged to grant the relief to the person against whom action has been taken at his back by denying protection of law to him. One who is sought to

be punished is to be asked to explain his conduct and then enquiry is to be held. The opportunity of being heard cannot be denied even to an

employee of a Company who is a sought to be punished and removed from service. The Rule of audialteram partem is inherent in Art. 14 of the

Constitution. Nobody was to be condemned unheard even in preconstitution era. The concept of Greeks that nobody is to be condemned unheard

by judicial process was adopted in our country and guidelines from time to time were made by the Supreme Court and other High Court in this

regard. In Meneka Gandhi's case AIR 1978 S C 596 even in respect of administrative orders rules of natural justice were to be read. Part III of

the Constitution of India as applicable of the State of Jammu and Kashmir was held applicable to the Company employees also. This was one of

the mandates of V e Supreme Court in Ajay Hashia's case (Supra), In Rig Vs Baldwin, the Court of Appeal in England also had held that if a

Constable was sought to be removed from service, he must be given fair opportunity of being heard This principle was followed in England in

respect of the employees of the Companies also Court of Appeal in England in a recent has held that if a company employee was sought to be

removed from service in violation of the byelaws of the removal can be set aside, by invoking the writ jurisdiation of court In India we have

guarantee in a written Constitution. In the realm of rule of law, aims of Art. 14 of the Constitution have been time and again highlighted by the apex

Court of the Country. Therefore, it is not correct for the respondents to suggest that the Company has anlimited powers to punish his employee

without holding an enquiry and without his explanation. Art 14 of Constitution postulate that any action which is arbitrary or violative of the

principles of natural justice is to be avoided by the courts. Nobody can be denied the protection of law much less the respondent Company's

employeeThe impugned order of the termination of the petitioner's service has been passed in flagrant violation of the guarantees cntained in Art,

14 of the Constitution and is likely to struck down.

Another aspect of the case is that the petitioner is a Chemical Engineer who has been appointed by the Board of Directors of the Company. The

impugned order has been passed by the Managing Director of the Company. He was not the Appointng Authority of the petitioner. It has not been

shown to this court that he had the authority to terminate the services of the petitioner. The order impugned in this petition therefore is without

jurisdiction. It is the cordinal principle of law that an employee's service can be terminated by his Appointing Authority or by an authority higher

than the Appointing Authority. If the Board of Directors was the Appointing Authority of the petitioner the Managing Director was not higher than

the Board of Directors of the Company. He should not have such terminated the services of the petitioner.

For the reasons stated above, I allow this petition, and quash the impugned order No: JK1/46/83 dt 14 61983 whereby the petitioner's services

have been terminated. The petitioner shall be relegated to the same position which he held on 2112 1982 and shall be paid all his emoluments and

salary which are attached to his post from that date, No order as to costs.