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Judgment
P. Devadass, J.—This Writ Appeal has been directed as against the order of the Writ Court setting aside the order of the appellant
dismissing the first respondent from his job and directing the appellant to hold fresh enquiry within prescribed time. Mr. Mahesh Raja, learned
Government Advocate took notice for R2 and R3. As the point involved is very narrow, we have decided to dispose of this writ appeal at the
admission stage itself.
The case of the first respondent is that he was working as Over Head Tank Operator in the Panchayat since 20.01.2000. He served as such for
about 12 years continuously. However, in order to accommodate some other person, on 09.12.2011, the appellant issued him show cause notice
imputing allegations against him. He submitted his representation on 14.12.2011. However, without holding enquiry, with a copy of the resolution
dated 15.12.2011 the appellant sent him a letter that he has been terminated from service.
The respondent challenged the said order in the writ Court. The writ Court set aside the order and directed conducting of enquiry.
Aggrieved, the Panchayat President filed this writ appeal.
According to the learned counsel for the appellant, there is distinction between an order of discharge simpliciter and an order of dismissal after
enquiry. The learned counsel contended that the first respondent was employed temporarily, the appellant passed a simple order of discharge, it
need not be followed by an enquiry. Such an order cannot be questioned. In such circumstances, conducting of enquiry will not arise and that the
writ Court is not right in directing conducting of enquiry. In support of his submissions, the learned counsel would cite Pavanendra Narayan Verma
Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, and State of Haryana and Another Vs. Satyender Singh Rathore, .
Long back we have bid farewell to the law of Master and servant, which field is now occupied by many statues and also constitutional
mandates.
In this case, the respondent was admittedly employed for several years as an Overhead Tank Operator. He is a lowly paid employee. He was
paid out of Government funds. Allegations were leveled against him. He was asked to go out without an enquiry. The Writ Court did not deny the
appellant his power of dismissing the first respondent from service. But asked him only to hear him and decide. The Writ Court directed, the
appellant to observe the minimum justice of Principles of Natural Justice. But, the appellant says that he do not wish to observe the minimum
justice, as the first respondent has been issued with a marching order, which is a discharge simpliciter.
PAVANENDRA NARAYAN VERMA (supra) relates to the discharge of a probationer, whose services were found not satisfactory. A
period of probation has been prescribed to see that the person appointed is whether fit enough to be appointed permanently during which period
he will be under the scanner of the employer. It cannot be equated with the case of the respondent, who served the Panchayat for several years
and allegations were also made against him.
SATYENDER SINGH RATHORE (supra) is also on a different angle. The Court noticed that there is distinction between discharge simpliciter
and dismissal by way of punitive action. The Court also held that it depends on the facts and circumstances of each case.
In 2001 (2) AWC 1291 (SC) , the Hon''ble Apex Court held as under:-
The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter
without casting any stigma may not be interfered with by the Court. But the Court is not debarred from looking at the attendant circumstances,
namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the
order of termination or formed the foundation for the same order. If the Court comes to a conclusion that the order was, in fact, the motive, then
obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for
passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate
procedure has not been followed.
In V.L. Lakshmanakumar Vs. The District Manager, ""TASMAC"" Limited and Another, ), this Court held as under;
The Apex Court, in more than one case, has held that when an order of termination involves civil consequences and consequently amounts to
stigma, the same cannot be passed without there being a charge memo, enquiry and the finding as to those charges. This proposition of law has
been recently reiterated by the Apex Court in State of Haryana and Another Vs. Satyender Singh Rathore, . In that judgment, the Supreme Court
has relied upon its earlier judgment in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, ,
and has held that if findings were arrived at in an enquiry as to misconduct behind the back of the officer or without a regular departmental enquiry,
the simple order of termination is to be treated as ""founded"" on the allegations and will be bad.
in R. Tirupathy and Others Vs. The District Collector and Others This Court has also held that temporary employee is also entitled for a fair
hearing and fair enquiry with impartial mind and failure to provide such opportunity, amounts to failure of principles of natural justice.
Thus even if a person is appointed on a temporary basis before sending him out from his job, the employer should follow fair procedure. There
must be fair play in action. There must be fairness in it.
Even it can be viewed from the anvil of Article 21 of the Constitution of India, which guarantees right to life, which is not possible without a
means of livelihood, namely, job. Such a means of livelihood cannot be taken away without following a fair and reasonable procedure. Taking
away one''s means of livelihood at the whims and fancy, sweet will and pleasure of the employer is against one''s basic human right-right to live.
In the facts and circumstances of the case, the Panchayat President cannot be allowed to bid farewell to the basic requirement of law-
observance of principles of natural justice.
In this view of the matter, the order of the writ court cannot be faulted. In the result, this Writ Appeal fails and the same is dismissed. The order
of the Writ Court is upheld. The appellant shall carry out the directions of the Writ Court within a period of twelve weeks from the date of receipt
of a copy of this Judgment.