Smt Chanchal vs Director Harigan & Socal Welfare ...
2019 Latest Caselaw 4398 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 31
 

 
Case :- SERVICE SINGLE No. - 9747 of 1989
 

 
Petitioner :- Smt Chanchal
 
Respondent :- Director Harigan & Socal Welfare U.P.
 
Counsel for Petitioner :- J.P.Srivastava,Raj Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Lavania,J.

Heard Sri Raj Kumar Singh, learned counsel for the petitioner and Sri Sanjay Kumar Rao, learned counsel for the opposite party Nos. 1 to 6.

In view of the order proposed to be passed, the notice to opposite party No. 7 is dispensed with.

The submission of learned counsel for the petitioner is that the petitioner was appointed on the post of Matron on 30.11.1988 and pursuant to the order of appointment, she joined on the post. After continuing about one year, the services of the petitioner were terminated vide order dated 03.11.1989 passed by opposite party No.2-District Magistrate, Balia. The order dated 03.11.1989 was passed pursuant to the order dated 27.10.1989 passed by the opposite party No. 1.

Aggrieved by the order dated 03.11.1989, the petitioner approached this Court by means of the present writ petition and an interim order was passed on 16.11.1989. Pursuant to the order dated 16.11.1989, the petitioner continued in the department till attaining the age of superannuation i.e. till 31.07.2016. During the service tenure of the petitioner, the opposite parties provided financial benefits to the petitioner. The petitioner was also given charge of Prabhari Adhishak in the institution.

Learned counsel for the petitioner further submitted that the opposite parties treated the petitioner as a validly appointed regular employee of the department and due to the said very reason, the charge of the higher post was given and the financial benefits were extended to the petitioner.

It has also been submitted that one similarly situated employee to the petitioner namely Km. Madhvi Srivastava approached the U.P. State Public Services Tribunal after her order of termination and the U.P. State Public Services Tribunal allowed the claim petition vide order dated 29.01.1993. The Tribunal while allowing the claim petition considered that the order of termination was passed without giving reasonable opportunity of hearing. In the instant case also, the order of termination has been passed without giving the proper opportunity of hearing and on the dictates of the opposite party No. 1. No reason has been mentioned in the impugned order. The petitioner was not instrumental in getting the appointment. In the facts and circumstances of the case particularly the fact that the petitioner continued in the service till attaining the age of superannuation i.e. till 31.07.2016, the interference may be made by this Court.

Learned counsel for the State submits that the appointment of the petitioner was given by the District Magistrate who was not competent to appoint the petitioner and for the said very reason, the opposite party No. 1-Director, Harijan Welfare directed the District Magistrate to cancel the appointment of the petitioner and pursuant to the said direction of the opposite party No. 1, the District Magistrate-opposite party No. 2 passed the order impugned dated 03.11.1989. The petitioner was not qualified for the post in issue. In the facts of the case, no opportunity of hearing was required before passing the order.

In view of the same, the petitioner is not entitled to the relief sought in the writ petition.

In reply to the submission made by the counsel for the respondent, learned counsel for the petitioner submitted that the ground for termination of petitioner that the District Magistrate was not empowered to appoint the petitioner, as stated in the counter affidavit, does not find place in the impugned order and in the order impugned, the authority concerned has not recorded any reason and being so, the same is liable to be ignored and can not be taken notice of.

At this junction, it is relevant to mention that the Apex Court in the case of Mohinder Singh Gill v. the Chief Election Commissioner: (1978) 1 SCC 405 has held that the validity of order must be judged on the basis of reasons mentioned therein alone.

Considered the submissions made by counsel for the parties and perused the record.

It transpires from the record that the petitioner was appointed by the opposite party No. 2-District Magistrate vide order dated 03.11.1998 and without recording any reasons in the impugned order and without providing the opportunity of hearing, the services of the petitioner were terminated vide order dated 03.11.1998. The petitioner was not instrumental in getting the appointment.

While entertaining the writ petition, this Court on 16.11.1989 passed the following order:-

"Admit. Notice on behalf of State-opposite parties has been accepted by the Chief Standing Counsel.

Until further orders of the Court, the operation of the impugned order of termination contained in Annexure No. 7 shall remained stayed."

The petitioner on the basis of the interim order continued in the department till attaining the age of superannuation i.e. till 31.07.2016. During the service period, the petitioner was given the charge of Prabhari Adhishak in the institution and she was also provided financial benefits by the opposite parties.

It is also admitted fact that the similarly situated employee Kr. Madhvi Srivastava, approached the Tribunal against the order of termination and the Tribunal allowed the claim petition vide order dated 29.01.1993. It is also admitted fact, as has not been denied in the counter affidavit, that prior to passing of order dated 03.11.1989, opportunity of hearing was not provided to the petitioner and the order was passed on the directions issued by the opposite party No. 1-Director, Harijan Welfare, as has been stated in para 7 of the writ petition and not denied in para 9 of the counter affidavit.

It is settled principle that even administrative order which involve civil consequences must be passed after following the principle of natural justice and providing opportunity of hearing and the orders which have been passed against settled principle and are unsustainable. The basic idea of observing principles of natural justice is to secure justice or to put in another way to prevent miscarriage of justice.

Further any order either passed by court/tribunal or authority, which leads to civil consequences must be passed after giving an opportunity of hearing and the procedure adopted must be just, fair, reasonable, unarbitrary and impartial.

A seven-Judges' Bench of the Hon'ble Apex Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597) has held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14 of the Constitution. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic, otherwise they would cease to be reasonable. The procedure prescribed must be just fair and reasonable, even though there is no specific provision in a statute or rules, made thereunder, for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action in-volving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done hut manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of the natural justice.

In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (AIR 1978 SC 851), the Apex Court reiterated the same view.

In the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. Same view has been reiterated in the cases of Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : (AIR 2005 SC 2090); Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668 : (AIR 2007 SC 2276); and Devdutt v. Union of India, 2008 (3) ESC 433 (SC) : ((2008) 8 SCC 725 : AIR 2008 SC 2513).

In the case of Erusian Equipment and Chemicals Ltd. v. State of West Bengal and another A.I.R. 1975 SC 266; Raghunath Thakur v. State of Bihar and others A.I.R. 1989 SC 620; and Gronsons Pharmaceuticals (P) Ltd. v. State of Uttar Pradesh and others A.I.R. 2001 SC 3707 and the decisions of the Division Bench of this Court in Smt Rajni Chauhan v. State of U.P and others 2010 (6) AWC 5762 (All.) also it has been held that an order which leads to civil consequences cannot be passed without affording an opportunity of hearing and the same must be passed in conformity of principles of natural justice.

It is also settled principle that an order must contain reasons so that the aggrieved person can know why the adverse decision has been taken. Recording of reason in the order is one of the statutory requirements of natural justice. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision.

It is also a settled principle of law that the authority concerned should pass the order by applying its own mind and not on the dictates of any other authority/officer.

In addition, in the case of Rekha Chaturvedi (Smt.) v. University of Rajasthan reported in 1993 Suppl. (3) SCC 168, the Apex Court despite of finding illegality in selection process did not interfere in the appointment on account of long working of the selected candidates.

In the instant case, it is evident from the record that the impugned order dated 03.11.1998 was passed by the opposite party No. 2 on the directions of opposite party No. 1 and no opportunity of hearing was given to the petitioner prior to passing of order dated 03.11.1989. In the impugned order, no reason has been mentioned. The service benefits of a regular employee were provided to the petitioner for the service rendered by her in the department. The petitioner continuously worked in the department till attaining the age of superannuation. The petitioner was not instrumental in getting the appointment.

Looking into the facts and circumstances of the case and considering the settled principle, as narrated hereinabove, this Court is of the view that order dated 03.11.1989 is liable to be interfered.

Accordingly, the impugned order dated 03.11.19879 is hereby, quashed and the writ petition is allowed. Consequences shall follow.

Order Date :- 13.5.2019

Arun/-