Mrs. Poonam Rai D/O Shri ... vs Union Of India (Uoi) Through ...
2003 Latest Caselaw 13 Del

JUDGMENT

Vijender Jain, J. (Oral)

1. Rule.

2. The petitioner was appointed as Telecom Officer Assistant (in short 'TOA') vide order dated 31.10.1997 issued by the respondent No. 2, Chief General Manager, Mahanagar Telephone Nigam Limited (for short 'MTNL'). It is the case of the petitioner that although initially the petitioner was appointed in terms of order of appointment, which is dated 31.10.197, at pages 10 to 13 of the paper book, however the petitioner was confirmed on 23.12.197 and service of petitioner was regularised vide order dated 28.2.2002 w.e.f. 31.10.1999. The name of the petitioner figures at serial No. 124 of the order dated 28.2.2002 which is at page-25 of the paper book.

3. Mr. H L Tikku, learned counsel for the petitioner, has contended that the impugned order passed by the respondent dated 27.4.2002 is not only illegal but, as a matter of fact, has not taken into consideration the regular appointment of the petitioner, which the respondent itself had made on 28.2.2002. It was contended that the respondent could not have relied upon the initial appointment letter, which was issued in the year 1997 and after regular appointment reliance placed by the respondent on the terms of conditions of the initial appointment letter of 1997 was illegal. In support of his contentions, learned counsel for the petitioner has cited Delhi Transport Corporation v. DTC Mazdoor Congress and others and Delhi Stock Exchange and Anr. v. K C Sharma & Ors. 2002 (7) AD (DELHI) 432.

4. On the other hand, learned counsel for the respondents, Mr. V K Rao, has contended that the appointment of the petitioner was void ab initio. He has contended that the petitioner was appointed in relaxation of normal rules under Sport quota. He has contended that in terms of para-4 (iv) e of the appointment letter, which is at page-13 of the paper book, if any declaration given or information furnished by the candidate proven to be incorrect or if the candidate is found to have willfully suppressed any material fact, petitioner was liable to be removed from service under the said terms of employment. It was further contended that as the petitioner has not correctly stated her sport achievements, petitioner's appointment was no appointment in the eyes of law. It was also contended that the petitioner has submitted false certificate of her sport achievements to the respondent in order to get employment. What has been contended by Mr. Rao is that initial appointment of the petitioner could not have been given to her and now she cannot challenge the same if the appointment has been terminated on the ground that she has obtained that appointment initially on the basis of submission of false documents. In support of his contentions, learned counsel for the respondent has relied upon State of Uttar Pradesh & Anr. v. Kaushal Kishore Shukla .

5. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. At the outset, as the controversy has been raised by both the parties with regard to the interpretation of the initial appointment letter and its clauses, the relevant clauses of the initial letter of appointment, which was issued on 31.10.1997, are being reproduced below :-

2 (ii) The appointment may be terminated any time without assigning any reason therefore by the appointing authority by one month notice from either side. The appointing authority however reserves the right of terminating the service of the appointee forthwith or before the expiry of the stipulated period of notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.

4 (iv) e If any declaration given or information furnished by the candidate prove to be incorrect of if the candidate is found to have willfully suppressed any material fact, he/she will be liable to be removed from service and such other action as Government may deem fit.

6. What has been argued before me by the learned counsel for the respondent pertains to Clause 4 (iv) e. Even if I assume that the initial appointment letter and the terms and conditions contained therein would be applicable to the petitioner then in that event respondent's termination letter is not issued pursuant to said Clause 4 (iv) e. The impugned order, which is at page-32 of the paper book to the following effect :-

"WHEREAS vide memo No. STA-II/6-6/Aptt.TOA(G).97/KW/30 dated 30.10.97 you were offered temporary post of Telecom office Assistant (G) Gd.I. As per Clause 2(ii) of the said offer, it was stated that "the appointment may be terminated any time without assigning any reason thereof by the appointing authority by one month notice from either side................."

I, R M Tiwari, hereby order discharge from the service of Smt. Poonam Rai, TOA(G), CL-5967 with immediate effect. She will be entitled to a sum equivalent to the amount of one month's pay and allowance in lieu of the notice for the same period @ which, she was drawing pay and allowances before issue of this order."

7. From the perusal of that order, it would be seen that the respondent has exercised its right pursuant to the aforesaid appointment letter in terms of Clause 2 (ii), therefore, the argument advanced by the learned counsel for the respondent is totally contrary to the letter of termination issued by the respondent. Reliance was placed by the learned counsel for the respondent on State of Uttar Pradesh & Anr. v. Kaushal Kishore Shukla's case (supra) to buttress the argument that petitioner being a temporary Government employee had no right to hold the post. In State of Uttar Pradesh & Anr. v. Kaushal Kishore Shukla's case (supra) is not applicable to the facts of this case as in the said case the service of the respondent, who was appointed on ad hoc basis as Assistant Editor, was never regularised whereas in the case before me the service of the petitioner was regularised by the respondent themselves vide their order on 22.2.2002. Even otherwise, the law laid down in the said authority was that when a preliminary enquiry on the allegations against the delinquent temporary servant is held and that enquiry is dropped or abandoned then such order may not be punitive in nature. In the instant case a charge sheet was issued to the petitioner on 27.5.1999. The said charge was on the basis of the ground that the petitioner has produced a false participation certificate in certain tournaments, disciplinary authority appointed an enquiry officer, the report of the enquiry officer is on pages 27 to 29 of the paper book. The enquiry officer in the enquiry report exonerated the petitioner from the charges levelled against her. In such a situation it was mandatory for the disciplinary authority, if the disciplinary authority had come to a different finding than that of enquiry officer, to have given a show cause notice of disagreement of the finding of the enquiry officer to the petitioner to enable her to satisfy the disciplinary authority. No such action was taken by the respondent. Once enquiry into charges was conducted, the enquiry officer, who was appointed by the respondent exonerated the petitioner, respondent ought to have followed the procedure to give a disagreement memo and ought to have issued a memo to the petitioner in this regard. The action of the respondent in not following the rule of principles of natural justice by issuing a memo of disagreement with the report of the enquiry officer, even otherwise, makes their action punitive in character. On this score also the case cited by the learned counsel for the respondent is totally distinguishable from the facts of this case.

8. Coming to the argument of the counsel for the respondent that appointment of the petitioner could be terminated in terms of initial appointment letter as the initial letter of appointment was made in relaxation of normal rules under Sport quota, it is too late in the day for the respondent to take shelter under the original letter for temporary appointment. It is strange that, on the one hand, respondent has initiated disciplinary proceedings, appointed an enquiry officer, enquiry officer has given a report exonerating the petitioner and that was done on 31.10.2000 and, on the other hand, after a period of two years on 22.2.2002 the respondent had granted regular appointment to the petitioner that too from October'1999. Respondents are trying to blow hot and cold in the same breath. As a matter of fact, respondent has condoned the misconduct of the petitioner, if any. The argument which has been built, is on the basis of Clause 2 (ii) of the initial letter of appointment. Supreme Court while interpreting the same clause in somewhat similar circumstances in the case of Delhi Transport Corporation v. DTC Mazdoor Congress and Ors.'s (supra) held as under :-

"Thus on a conspectus of the catena of cases decided by this Court the only conclusion follows is that Regulation 9(b) which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing to the employee before passing the impugned order is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Art. 14 of the Constitution. It has also been held consistently by this Court that the Government carried on various trades and business activity through the instrumentality of the State such as Government Company or Public Corporations. Such Government Company or Public Corporation being State instrumentalities are State within the meaning of Art. 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part III as well as to conform to the directive principles in Part IV of the Constitution. In other words the Service Regulations or Rules framed by them are to be tested by the touchstone of Art. 14 of the Constitution. Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this power of termination by giving notice or pay in lieu of notice can be exercised. It is now well settled that the 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi judicial orders but to administrative orders affecting prejudicially the party in question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurely. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Regulation 9(b) does not expressly exclude the application of the 'audi alteram partem' rule and as such the order of termination of service of a permanent employee cannot be passed by simply issuing a month's notice under Regulation 9(b) or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported order is made."

9. Supreme Court in the case of Delhi Stock Exchange and Anr. v. K C Sharma & Ors. 's case (supra) held that such kind of Clause is commonly known as 'HENRY VIII CLAUSE', which was declared ultra vires under Article 14 of the Constitution of India and Section 23 of the Indian Contract Act.

10. Relying upon all the aforesaid decisions and in view of the fact that respondents themselves have appointed the petitioner as their regular employee, the petitioner's services could not have been dispensed with relying on the said initial letter of appointment. Even otherwise, once petitioner was served with charges regarding supply of false certificates, enquiry into said charges having been completed, Enquiry Officer exonerated the petitioner of the charges. Without following the rules of issuing a disagreement memo Disciplinary Authority cannot terminate the services of the petitioner in such a summary manner invoking Clause 2(ii) of the initial letter of appointment. The impugned order is, therefore, quashed. Rule is made absolute. The petitioner shall be entitled to reinstatement in service with all consequential benefits.

11. Petition stands disposed of accordingly.