Avinash Prabhakar Latpate And ... vs The State Of Maharashtra Through ...
2006 Latest Caselaw 993 Bom

JUDGMENT

R.M. Savant, J.

Page 3111

1. Heard Shri Barlinge, Advocate for the petitioners and Shri Ghadge, Assistant Government Pleader for the respondents.

2. Rule. By consent, Rule made returnable forthwith.

3. The petitioners, by the present petition, filed under Article 226 of the Constitution of India, impugn the letter dated 7.3.2006, by which their services, as Field Workers in class IV category, were terminated by the respondent - Assistant Director of Health Services. The challenge of the petitioners is mainly on the ground of violation of the principles of natural justice.

4. It would be necessary to narrate few facts for appreciating the controversy raised in the petition :

It is the case of the petitioners that they were working on daily wages in various district Malaria Offices as Field Workers for several years. Pursuant to the special drive initiated by the Government of Maharashtra for appointment of candidates belonging to backward classes and since the petitioners fulfilled necessary criterion for appointment as Field Workers, they were selected and appointed as such vide appointment letter dated 26.9.2003 issued by the respondent - Assistant Director. Said letter, inter alia, contains terms and conditions on which the petitioners were appointed and one of it is that the petitioners appointments are purely on temporary basis and liable to be terminated without any notice.

It appears that similarly situated persons, like the petitioners, including one Chandrakant Uttamrao Aade, had filed Original Application Nos. 1086 and 1087 of 2004 before the Maharashtra Administrative Tribunal ("Tribunal"). In the said application, it was the case of said Aade and others that the above petitioners and some others, in all 39, were given appointment orders as Field Workers in class IV category and were working as such, the applicants in the Original Applications were discriminated against; and though they were given appointment letters, they were not allowed to join at the places at which they were posted.

The Tribunal, vide its order dated 5.5.2005 directed the authorities to set right the anomaly in so far as the said applicants are concerned, within period of six weeks from the receipt of the order of the Tribunal.

It appears that the authorities were not in a position to comply with the said order. On the expiry of the said period, as stipulated by the Tribunal, Page 3112 the applicants filed Contempt Petition Nos. 54, 55 and 56 of 2005 before the Tribunal, alleging non compliance of the order dated 5.5.2005 passed by the Tribunal, by the authorities concerned.

In the said contempt applications, the Tribunal issued a notice before admission returnable within four weeks.

Faced with the said contempt proceedings and finding that it was not possible to comply with the Tribunals order dated 5.5.2005, respondent Joint Director of Health Services, vide letter dated 7.2.2005 informed to respondent -Assistant Director, Health Services, that he had sought guidance from the State Government in respect of the said matter, however, since the State Government had not given any guidance or advise, the respondent Joint Director directed the respondent Assistant Director to terminate the services of all 39 employees, including the petitioners above named, on the ground that as the selection process was not followed in their cases. The respondent Joint Director suggested that the show cause notice should be given to said 39 employees and thereafter, their services should be terminated.

Pursuant to the said direction of the respondent Joint Director, a show cause notice dated 25.11.2005 came to be issued to each of the petitioners. The sum and substance of the said show cause notice was that the appointment of the petitioners were not as per the prescribed selection procedure. The petitioners, were therefore, called upon to reply to the said show cause notice within a period of ten days of the receipt of the same.

The petitioners accordingly replied to the said show cause notice vide their letters dated 5.12.2005. The petitioners in their said reply, inter alia, contended that no fault could be found with the appointments of the petitioners and that it was unjust on the part of the authorities to terminate the services as they have already completed a period of two years and two months as Field Workers. Said replies given by the petitioners were rejected and the petitioners services came to be terminated by letter dated 7.3.2006. It is pertinent to note that said termination letter, in the subject clause, refers to the original applications and contempt petitions filed in the Tribunal.

It is the said termination, vide order dated 7.3.2006, which is under challenge in the instant petition.

5. Respondents 2 to 4 have filed an affidavit in reply through Dr. Sampatrao Rambhau Jadhav, Assistant Director of Health Services, Aurangabad. It is admitted in the said affidavit that the petitioners were working on daily wages under various District Malaria Officers and they were working as temporary seasonal Field Workers. It is denied on behalf of the said respondents that the petitioners were selected through the normal selection procedure. It is further averred in the said affidavit that in the original applications filed by Shri Aade and others i.e. O.A. Nos. 1086 and 1087 of 2004, a statement was made before the Tribunal that, 39 employees, on whose cases the applicants in the said original applications were relying, were also not eligible to be continued in the services and that the services of said 39 employees were brought to an end in view of the statement made Page 3113 in the Contempt Petition Nos. 54 to 56 of 2005. It is the case of the respondents that the appointments of the petitioners were not made either by nomination or by direct selection and were made purely on temporary basis and therefore, the petitioners services could be terminated at any time without assigning any reasons.

6. We have heard learned Advocates for the parties at length. On behalf of the petitioners, the principal contention is that the petitioners have been appointed in the regular pay scale of Rs. 2550-55-2660-60-3200, which is applicable to the regular employees. It is, therefore, contention of the learned Advocate appearing for the petitioners that the petitioners having worked for a period of more than two years and two months they ought to have been heard in the matter of termination of their services, prior to their services being actually terminated vide impugned letter dated 7.3.2006. Said procedure being not followed by the respondents, said order of termination is vitiated on that count and the impugned actions of termination further suffers from the vice of arbitrariness. It is further contended on behalf of the petitioners that though the respondents have contended that the petitioners have been appointed in violation of the selection procedure, the respondents have failed to point out what is the normal procedure applicable in appointment of class IV employees, as Field Workers. During the course of arguments, we sought to know from learned Assistant Government Pleader Shri Ghadge as to what is the normal procedure followed while appointing the employees of Class IV. We regret that Shri Ghadge was not able to give us an answer, one way or the other, as to what is the normal procedure. It was only faintly sought to be suggested that the person who has issued the appointment letter is an higher officer in the hierarchy than the person who is normally authorised to issue the said appointment letters i.e. District Malaria Officer and therefore, the said appointments were illegal. Prima facie, we are of the view that the appointment letter cannot be faulted on the said count, as an higher authority can always issue appointment letters. It is also significant that the said appointment letters were unquestioned till the filing of the proceedings before the Tribunal.

7. On behalf of respondents, it was firstly contended that the petitioners have an alternate efficacious remedy of approaching the Administrative Tribunal by way of an original application, challenging the termination of their services. It was further contended by learned Assistant Government Pleader Shri Ghadge that since the petitioners were appointed temporarily, their services could be terminated without assigning any reason. It was further contended on behalf of the respondents by learned Assistant Government Pleader that in case of appointments of the nature in question, the principles of natural justice need not be followed and in any event, the respondents had issued show cause notices to the petitioners and had considered their replies. Shri Ghadge has fairly conceded that the termination of the petitioners was a sequel to the proceedings for contempt initiated against the respondents in the Tribunal. In fact, Shri Ghadge concedes that after the services of the petitioners were terminated, a statement was made in the Tribunal to that effect on the basis of which contempt proceedings were dropped against the respondents.

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8. We are of the view that the objection raised by the respondents that the petitioners ought to have approached the Tribunal and not this Court is mis-founded. It is pertinent to note that the petitioners had nothing to do with the proceedings filed before the Tribunal by Shri Aade and others. It is on account of the statement made by the respondents in the said proceedings and especially Contempt Petition Nos. 54 to 56 of 2005 the services of the petitioners were terminated. The petitioners goose was therefore cooked as and when the contempt petitions came to be filed before the Tribunal. Now to drag the petitioners to the said forum for any relief would be totally unjust and unfair to the petitioners. The said action being taken by the respondents on account of the statement made by them in the said contempt proceedings said remedy of approaching the Tribunal is, therefore, illusory and would not be an effective remedy for the petitioners. We, therefore, reject the contention of Shri Ghadge, leaned Assistant Government Pleader, that the petitioners ought to have approached the Tribunal against the said termination order dated 7.3.2006.

9. As regards violation of the principles of natural justice, we find considerable merit in the submission of learned Counsel for the petitioners that the principles of natural justice i.e. the rule of audi alteram partem, ought to have been followed in the instant case. The petitioners having worked for about two years and two months, albeit, in temporary posts / appointments, we are of the view that a modicum of procedure for termination of the services ought to have been followed by the respondents. On account of the contempt petitions the petitioners herein were merely dished out with a "fait accompli". The termination of the petitioners is, therefore, arbitrary and in violation of the principles of natural justice. It is true that non arbitrariness is an essential facet of Article 14, pervading the entire realm of State action governed by Article 14. It has come to be established as a further corollary that the audi alteram partem facet of natural justice is also a requirement of Article 14 for natural justice is the anthesis of arbitrariness. In the sphere of public employment it is well settled that any action by the employer against an employee must be fair, just and reasonable, which are the components of fair treatment.

In the contest of the facts of the present case, it would be useful to refer to the judgment of the Constitution Bench of the Apex Court in Olga Tellis v. Bombay Municipal Corporation . Paragraphs 47 and 48 of the said judgment (Page 583 of the report) are relevant and are reproduced herein below : "47. The proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is contrary to the well-recognised understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that condition of personal freedom can be preserved only when there is some institutional Page 3115 check on arbitrary action on the part of public authorities. The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the process by which those decisions are made, an opportunity that expresses their dignity as persons. Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experiences at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. Justice Frankfurter captured part of this sense of procedural justice when he wrote that the validity and moral authority of a conclusion largely depend on the mode by which it was reached.... No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done. At stake here is not a just the much acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice. The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules of conduct, which result in benefits and prejudices alike, are in fact accurately and consistently followed.

It ensures that a challenged action accurately reflects the substantive rules applicable to such action; its point is less to assure participation than to use participation to assure accuracy. 48. Any discussion of this topic would be incomplete without reference to an important decision of this Court in S.L. Kapoor v. Jagmohan . In that case, the supersession of the New Delhi Municipal Committee was challenged on the ground that it was in violation of the principles of natural justice since, no show cause notice was issued before the order of supersession was passed. Linked with that question was the question whether the failure to observe the principles of natural justice matters at all, if such observance would have made no difference the admitted or indisputable facts speaking for themselves. After referring to the decisions in Ridge v. Baldwin; John v. Rees, Annamunthodo v. Oildfileds Workers Trade Union; Margarita Fuentes et al v. Tobert L. Shevin; Chintapalli Agency; Taluk Arrack Sales Cooperative Society Ltd. v. Secretary (Food and Agriculture) Government of A.P. and to an interesting discussion of the subject in Jacksons Natural Justice (1980 Edn.), Page 3116 the Court, speaking through one of us, Chinnappa Reddy, J. said : (SCC p.395, para 24).

In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non observance of natural justice is itself prejudice to any man and proof of prejudice, independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. These observations sum up the true legal position regarding the purport and implications of the right of hearing.

The proposition which crystalises from the said judgment of the Apex Court is that when the State action visits the person concerned with civil consequences then the rule of audi alteram partem is attracted.

10. Reference could also be made to the judgment of the apex court in the case of Basudeo Tiwary v. Sido Kanhu University . The said case was also a case where the appointment was made not as per the rules and the procedure. Paragraphs 12 and 13 of the said judgment are relevant for our purpose, which are reproduced herein below :

12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, rules, statutes and regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary tot he provisions of the Act, statutes, rules or regulations, etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha case. In such an event, we have to hold that in the provision, there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. and it is only such a conclusion being drawn, the services of the person could be terminated without further notice. This is how Section 35(3) in this case will have to be read.

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13. Admittedly in this case, notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained.

We are also aware that the principles of natural justice have not to be put in straight jacket formula so as to import them in every action of the State. As laid down by the Apex Court in various judgments, the standard would differ from case to case. However, in the instant case, though the petitioners were issued a show cause notice and thereafter, their services were terminated, the said action was merely mechanical or that the state authorities were merely going through the motions as they had already committed to the Tribunal that the services of the said 39 employees would be terminated. In the facts of the present case, we are, therefore, of the view that the interest of justice requires that the petitioners should, at least, be heard, where in either party could put its case and then final order could be passed.

11. In the light of our foregoing observations, we set aside the impugned order dated 7.3.2006 and direct the authorities to reinstate the petitioners and thereafter to hear the petitioners and pass appropriate orders in accordance with law in respect of the termination of the services of the petitioners. Said exercise to be carried out by the authorities within a period of two months from the date of this order.

12. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.