Rattan Lal vs Sainik School Society and others

Arun Kumar Goel, J.

1.Petitioner has challenged his termination ordered by respondent No. 3 in his capacity as Principal of Sainik School Nagrota respondent No. 2,

dated 20.12.2000. Photostat copy of the said order is annexed as AnnexureE with the writ petition and for ready reference this order is extracted

herein below :

CONFIDENTIAL

Sainik School,

Nagrota, Jammu.

Pin : 181221.

No. SSN/291/MO/41. Dt. 20th Dec., 2000.

Shri Rattan Lal,

General Employee (Mali),

Sainik School, Nagrota, Jammu.

TERMINATION OF SERVICE.

Refer to Court of Inquiry dated 09 Dec., 2000, and Memorandum No. SSN/MO/COI/40, dated 30th Nov., 2000 and Show Cause Notice

No. SSN/291/MO/40, dated 10th Dec., 2000.

As per Chapter 7, Para 7.06 of Sainik Schools Society Rules and Regulations, keeping in view the continuation of your service in the school

being detrimental to the interest of the school, your services are no longer required in this School and therefore your services are terminated from

the school with effect from 20th Dec., 2000. A cheque No. 515537 dated 08th Dec., 2000 for Rs. 11,760/ (Rupees Eleven thousand, Seven

hundred and sixty only) is being attached as your three months pay in lieu of three months notice.

You are advised to get the clearance formalities completed from the school latest by 23rd Dec., 2000 so that your final account can be settled.

Sd/ (K. Mukherjee)

Lt. Cdr. (IN),

Offg. Principal.

Copy to :

The Chairman,

Local Board of Administration,

(Sainik School, Nagrota)

C/o 56 APO.

A perusal of the writ petition, as well as objections filed to it on behalf of respondents indicates that petitioner was employed as a Mali by

respondent No. 1 and was working in the School, i.e. respondent No. 2, when the impugned order (supra) was passed by respondent No. 3, who

was working as Headmaster of the said School. A Memorandum (copy whereof is annexed as AnnexureA with the writ petition) was issued

alongwith Statement of Articles of Charges, and list of documents as well as witnesses. This was duly replied to by the petitioner vide AnnexureB

which is dated 9.12.2000, 10th being a holiday it was submitted on 11.12.2000 by the petitioner.

Respondents vide AnnexureC issued a showcause notice to the petitioner on 10122000, as according to them, petitioner had failed to reply

within the stipulated period of ten days which according to them expired on 9.12.2000, thus he was afforded last chance to submit reply by 19th

which he did vide AnnexureD.

After receipt of the aforesaid reply from the petitioner, respondent No. 3 in his capacity as Principal of respondent No. 2 has passed the

termination order. This order is challenged having been passed in haste. According to the petitioner, he did submit his reply vide AnnexureB to writ

petition on 11.12.2000, but without conceding the same impugned order has been passed.

Learned counsel for the parties at the time of hearing were not at variance that services of the petitioner are governed by Sainik Schools Society

Rules and Regulations. These have been followed more in breach than compliance by the respondents, as per Mr. Kaul. Respondent No. 3 while

passing the impugned order has thrown the principle of fair play and other legal safeguards to winds. According to him, as per Chapter 10 of the

aforesaid Rules and Regulations procedure is prescribed for imposition of minor as well as major penalties, that having not been done the entire

action of the respondents is illegal and thus the impugned order is liable to be struck down.

It is further case of the petitioner that respondent No. 3 has acted arbitrarily and has become a judge of his own cause inasmuch as that he was

a member of the Court of Inquiry, at the same time has passed the impugned order. Approval of the Chairman of Local Board of Administration as

per Clause 10.3 of the above noted rules and regulations was to obtained before passing of the impugned order, that having not been done

therefore, AnnexureE above referred deserves to be quashed.

Respondents were put to notice. They have filed objections. According to them, this Court is not exercising the appellate jurisdiction over the

decision of competent authority in this writ petition which also raises disputed questions of fact. Petitioner ought to have approached the

departmental authorities, therefore, writ petition is not maintainable.

Another preliminary objection raised is that since petitioner has pocketed Rs. 11,760/ as salary in lieu of three months notice he cannot file and

maintain the present writ petition. So far engagement etc. of the petitioner is concerned, it is not disputed. However, pleas referred to hereinabove

urged on behalf of the petitioner have been specifically repudicated as well as denied by the respondents. According to them, reply to

memorandum AnnexureA was not submitted by the petitioner on or before 9.12.2000, therefore, show cause notice was served upon him on

10.12.2000. According to them, adequate and due opportunity has been afforded to the petitioner. Impugned order thus has been rightly passed

according to them, after due consideration of the reply submitted by the petitioner to show cause notice AnnexureE to writ petition has been

passed after due consideration of the entire record as well as after following the prescribed procedure under Rules and Regulations (supra). It is

further pleaded by the respondents that due approval of Chairman was obtained before passing the impugned order as such plea to the contrary is

not correct. Whatever was required as well as expected of the respondents under the relevant rules and regulations had been completed by them

before passing the order in question which is challenged in this writ petition. As such there is no merit in it and the same is liable to be dismissed.

At the time of hearing of this petition, learned counsel for the respondents was directed to produce record relating to enquiry is question, which

she has done.

Learned counsel for the parties appearing in this case have reiterated the stand of their respective clients as pleaded in their respective pleadings.

After hearing learned counsel for the parties and having examined the pleadings filed by them, papers of enquiry file submitted by Mrs. Goswami

have also been examined. From the record, it is clear that petitioner did submit his reply to AnnexureA as is evident from its copy which is there on

the file. It is clearly shows that it was received on 11.12.2000 at 11 a.m. in the office of respondent No. 3, thus, stand to the contrary is factually

incorrect and is falsified from the record. 30.11.2000 is the date of AnnexureA attached with the writ petition. In any event this date was to be

excluded. Thus, petitioner had time till 10.12.2000 to have filed the reply to AnnexureA. That day being admittedly a holiday, he submitted the

same vide AnnexureB on 11.12.2000, therefore, plea of the respondents that petitioner did not file his reply within the time allowed as per

AnnexureA, cannot be accepted and is hereby rejected. Admittedly, reply submitted by the petitioner to the Memorandum has not been

considered before issuing showcause notice, therefore, the entire edifice of the case of the respondents must fall. This is one aspect of the

Memorandum. The other side of the Memorandum is the statement of article of charges which were framed against the petitioner as per AnnexureI

and as well as AnnexuresII, III and IV attached with AnnexureA to the writ petition.

Respondents on the basis of Memorandum could have dealt with the petitioner which could further deprive him of his job as such they were

required to give pinpointed specific Article of charges as also details of the documents on which those were intended to be sustained, in the

absence whereof respondents were not justified to call upon the petitioner to furnish his reply. For ready reference AnnexuresI, II, III and IV are

extracted hereinbelow :

ANNEXUREI

STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST SHRI RATTAN LAL, MALI/GE.

ARTICLEI

You have caused infringement to rule 9.01(c) & 9.01(e) & 9.08 by remaining absent from the place of duty without permission on number of

occasions despite verbal & written warnings.

To be sustained by letters issued to you from time to time.

ARTICLEII

You have caused infringement to rule 9.03(v) & 9.01(p) by tampering and Duping the Medical Certificate.

To be sustained by the Medical Certificate and letter No. SSN/291/MO Dated 25th June, 1993.

ARTICLEIII

You have failed to perform duties assigned to you from time to time and as such involved in misconduct.

To be sustained by letter No. SSN/291/A dated 13th June, 1990 issued to you.

Sd/ (Lt. Cdr. K. Mukherjee)

Headmaster, Presiding Officer,

Court of Inquiry.

Dated : 30th Nov. 2000.

ANNEXUREII

School correspondence and your reply on the ibid subject already possessed by you.

Copy of the Fact Finding Board.

ANNEXUREIII

Same as above.

ANNEXUREIV

List of witnesses.

(a) Mr. K.C. Katoch.

(b) Mr. Dev Dass.

Sd/

(Lt. Cdr. K. Mukherjee)

Headmaster,

Presiding Officer

Court of Inquiry.

Dated : 30th Nov., 2000.

Respondents forgot that law enjoins a duty upon them to pinpoint nd specify what petitioner has to meet and on what material. In the face of these

vague, uncertain and cryptic charges he could not has been called upon to submit his reply/explanation, therefore, on this ground also the very

foundation of the case of respondents is knocked.

From the minutes of 60th Meeting of the Local Board of Administration held on 17th November, 2000 at 11.00 hours in the Principal's office

Sainik School Nagrota, it is clear that respondents had already made up their mind as far back as on 17th November to terminate the petitioner's

service, thereafter, they were just trying to give a shape to show that though they have already made up their mind still they are trying to give shape

to it. Item No. 8 of this meeting was in the following terms :

Item No. 08. Staff Appointment/Resignation/Retirement/Retrenchment.

(a) to (c) noted.

(d) Approved. The Chairman desired that the services of Shri Rattan Lal, GE should be terminated at the earliest after following the necessary

procedures/Court of Inquiry. All the members agreed with the Chairman and Member Secretary emphasised that such individuals should not be

kept on the rolls of such a prestigious institution.

It is not understood that what was required to be done after it had been decided to do away with the services of the petitioner. Respondent No. 3,

thereafter, ensured that ignoring all canons of fair play, equity and good conscience he ensures that the service of the petitioner are dispensed with,

and thus order AnnexureE (supra) came to be passed.

When a reference is made to the socalled proceedings of Court of Inquiry it is nothing but an excuse in the name of the holding inquiry. This is

in addition to the fact that a decision had already been taken to terminate the service of the petitioner even before issuance of Memorandum and

chargesheet as well as showcause notice. Above all respondents had the courage of conviction to state that Memorandum AnnexureA was not

replied to by the petitioner which position, as already observed, stands belied from the record of the respondents.

Statements of two witnesses, namely Dev Dass and K.C. Katoch have been recorded in the absence of the petitioner. Both the statements are

dated 9.12.2000, which further strengthens the observations of this Court that further action was a mere ritual and nothing else.

Respondents forgot that Sainik Schools Society Rules and Regulations are subject to Article 311 of the Constitution of India and this is not a

case wherein respondents are dealing with an employee belonging to Defence Services so as to seek exemption under Article 33 of the

Constitution of India. Still they chose to treat Article 311 of the Constitution of India being the law of land governing all service regulations as non

est on the Statute Book. They further forgot that they were required to be careful in following law and procedure and thus passed impugned order

in postehaste arbitrarily.

A perusal of AnnexureE extracted hereinabove clearly supports the fact that decision to terminate the services of the petitioner was taken

before recording the evidence on 9.12.2000. Reason being that services of the petitioner were terminated by means of impugned order on

20.12.2000 and as per record produced by Mrs. Goswami, the evidence of Dev Dass and K.C. Katoch was recorded on 9.12.2000 and

7.12.2000, respectively. Without receipt of reply to AnnexureA how could the respondents forestall as to what is going to be the stand of the

petitioner. Not only this. But fact finding was completed on 27th/28th November, 2000.

A perusal of AnnexureE clearly suggests that though termination order purports to be of 20.12.2000 cheque for Rs. 11,760/ which was to

become payable in the event of termination of service of the petitioner had already been prepared on 8.12.2000, when even the evidence had not

been recorded by the Court of Inquiry with a view to support the Articles of Charges. This was only possible when respondents had decided

either on 8.12.2000 or before that to do away with the services of the petitioner.

Faced with this situation learned Additional Central Government Counsel forcefully urged that petitioner should be directed to approach the

competent authority to challenge the impugned order AnnexureE (supra). Ordinarily, this submission should have found favour with the Court, but

then the question that arises is should the petitioner be directed to still go to the authority concerned in the face of the facts discussed hereinabove

and overwhelming material available in the contemporaneous official records of the respondents as also in the face of their stand that AnnexureA

was never replied to by the petitioner ? Answer being that it would be an exercise in fatality and unnecessarily prolonging the agony of the

petitioner. In no circumstances impugned action of the respondents can be allowed to stand which is consequently declared to be the result of

decision having already been taken before even recording of evidence on the basis of the Articles of Charges as well as to show cause notice

having been issued without consideration of the reply filed by the petitioner to the Memorandum AnnexureA.

No other point is urged.

In view of the aforesaid discussion, this writ petition is allowed after having been formally admitted when it was stated that objections filed may be

treated as counter and was heard finally with the consent of learned counsel for the parties.

Consequently, impugned order AnnexureE extracted hereinabove is hereby quashed and set aside and as a result of it, it is further held that

petitioner for all intents and purposes shall be deemed to be in service from 20.12.2000. So far amount received by him in lieu of three months

notice is concerned, he is directed to deposit back the same within two months from the date of this judgment failing which he shall be liable to pay

interest at the rate of 12% per annum on this amount w.e.f. 1.5.2001 till he refunds the same to the respondents. While allowing this writ petition, it

is further held that on the basis of vague, uncertain and cryptic chargesAnnexures I to V no action can be taken against the petitioner. In case

respondents decide to still hold further enquiry it is ordered that none of those who were, in any manner, connected directly or indirectly with the

Meeting held on 17.11.2000, wherein Item 8(d) extracted hereinabove was approved, shall deal with the matter. In such a situation respondent

No. 1 will depute some independent agency to decide to hold an inquiry, such a decision would be taken within eight weeks of this judgment by

issuing specific charge sheet which will be duly served and if the after receipt of reply from the petitioner to such a charge sheet still authorities feel

that they intend holding an inquiry, an Inquiry Officer shall be appointed within next four weeks who shall conclude the inquiry within next three

months after following not only Rules and Regulations referred to hereinabove but will also keep in vie the principles of natural justice, equity and

fair play.

Writ petition stands disposed of in the aforesaid terms, with no order as to costs.

Record produced by Mrs. Neeru Goswami has been retained on the file.