Satbir Singh Beniwal vs State of Haryana

J.S. Narang, J.—The facts giving rise to the petition are that the petitioner was appointed as Library Restorer with effect from 11.10.1992 by the management i.e., respondent No. 4. The confirmation in the service was granted to the petitioner in the year 1983. The petitioner applied for leave for three years on 4.4.1994 and that the same was sanctioned by the governing body vide its resolution passed in the meeting held on 8.9.1994. The sanction was communicated by the Principal vide communication dated 16.2.1995. Thereafter, the Principal sent another communication dated 13.12.1995 conveying the decision of the Managing Committee to the effect that the leave granted had been cancelled and that the petitioner was directed to join duty as Restorer upto 18.12.1995. The petitioner did not join duty, as a sequel thereto, his services were terminated with effect from 19.12.1995, vide communicated dated 19.12.1995. The Principal sought sanction/approval for terminating services of the petitioner from Director of Higher Education, Haryana, Chandigarh. The approval/sanction was not granted and in fact communication dated 12.3.1996 was addressed by the Director of Higher Education, Haryana Chandigarh to the Principal of the College, respondent No. 3. It has been specifically notified that the procedure as contained under Rule 7(i) of the Haryana, Affiliated Colleges (Security of Service) Act, 1979 (hereinafter referred to as the Act) has not been followed and that the said procedure should be followed and after holding enquiry, the decision as per enquiry report should be taken. Copy of the said communication has been annexed as Annexure P-4/A.

Despite the communication having been received by the Principal from the Director, Higher Education, Haryana, the order of termination was not rescinded but the petitioner had been relieved. The said order has been questioned by way of seeking reference before the Labour Court. The petitioner has specifically taken the plea that the respondents apart from violating provisions of Industrial Disputes.Act, 1947 and committing unfair labour practice have also not complied with the provisions and procedure as envisaged in the Act and the rules framed thereunder. The stand of the respondents before the Tribunal has been that the petitioner is not entitled to get any benefit by raising the plea that the provisions have been violated because he himself was not interested in the job.

The Labour Court has answered reference in favour of the management and against the workman, i.e., the petitioner.

Learned counsel for the petitioner has argued that the respondent- management did not follow the procedure while terminating the services of the petitioner. It is specifically provided u/s 7(1) of the Act that no employee shall be dismissed, removed or reduced in rank except after an enquiry in which he is disclosed the charges against him and is given reasonable opportunity of being heard in respect of the said charges. In the case at hand, neither any charges had been served upon the petitioner nor any opportunity had been granted for rendering explanation and of being heard and that no enquiry was held before passing the impugned order of terminating the services of the petitioner. It shall be apposite to notice the said provisions which read as under :-

"7. Procedure to be observed before dismissal, removal or reduction in rank. - (1) No employee shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect Petition allowed. of those charges ;

Provided that this section shall not apply where an employee is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charges.

(2) The penalty of dismissal or removal from service or reduction in rank shall not be imposed unless the same is approved by the Director."

It has been further argued that penalty of dismissal or removal from service could not be imposed unless the same had been approved by the Director. It is the admitted case that the Director, Higher Education did not grant the approval and instead had specifically pointed out that the procedure laid down u/s 7(1) of the Act needs to be followed and the decision to be taken as per the enquiry report. It is obvious that the order of termination never became effective and that the petitioner could not have been denied the right to serve and being paid salary. This fact and the question of law has not been noticed or examined by the Labour Court. In view of this, the award of the Labour Court and the order of termination are not sustainable and deserve to be quashed.

Learned counsel for the respondent has not been able to address meaningful argument and he has not been able to furnish any explanation as to whether any approval had been granted by the Director in respect of the order of termination. In fact it has been argued that the petitioner having not joined on duty on cancellation of the earned leave, the misconduct on his part was obvious, as such no enquiry was called for.

We are afraid, we cannot subscribe to the view of learned counsel for the respondent. From the facts averred, we are of the considered opinion that the Labour Court fell into error and did not examine the aspect of applicability of Section 7 of the Act. It is clearly spelt out that wherever the order of dismissal is to be passed or removal has to be ordered, the delinquent official is entitled to be served with the charges and has a right of hearing by way of submitting reply and otherwise and of course without holding an enquiry, no such order can be passed against delinquent official. Apart from this, the order of dismissal or removal from service has been subjected to approval of Director. Admittedly, in the case at hand, the petitioner was not served with the charges nor any opportunity had been granted for furnishing any explanation and that the enquiry was also not held. Further, the order of dismissal/termination was never got approved from the Director as envisaged u/s 7(2) of the Act.

In view of the aforesaid, we allow this petition and set aside the award dated 17.5.2000 passed by the Labour Court and further quash the order of termination dated 29.12.1995 (copy Annexure P-4). The petitioner is ordered to be reinstated in service with full back wages. The compliance shall be made by the respondents within one month from the date of receipt of certified copy of the judgment from this Court or from the petitioner whichever is earlier.

Petition allowed.