Indian Immunologicals Limited vs Narendra Agrawal
2022 Latest Caselaw 910 Tel

IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF TELANGANA
                           ********

WRIT APPEAL NO.763 OF 2019

Between:

Indian Immunologicals Limited, Hyderabad (A wholly owned subsidiary of the National Dairy Development Board), Road No.44, Jubilee Hills, Hyderabad, rep.by its Managing Director and others.

.... Appellants/

and

Narendra Agrawal, s/o. late Shri Nathulal Agrawal, Aged 49 years, occu: Chief Manager (M2)-HR, (under orders of termination), Indian Immunologicals Limited, Hyderabad, (A wholly owned subsidiary of the National Dairy Development Board), Road No.44, Jubilee Hills, Hyderabad, currently residing at B/413, Fresh Living Apartment, Madhapur, Hyderabad and two others.

.... Respondent No.1/ Petitioner

DATE OF JUDGMENT PRONOUNCED : 25.02.2022

THE HON'BLE SRI JUSTICE P.NAVEEN RAO & THE HON'BLE DR. JUSTICE G.RADHA RANI

1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments ?

2. Whether the copies of judgment may be : Yes marked to Law Reporters/Journals

3. Whether their Lordships wish to : No see the fair copy of the Judgment ?

PNR,J & Dr.GRR,J WA No.763 of 2019

* THE HON'BLE SRI JUSTICE P.NAVEEN RAO & THE HON'BLE DR. JUSTICE G.RADHA RANI

+ WRIT APPEAL NO.763 OF 2019

% 25.02.2022

# Indian Immunologicals Limited, Hyderabad (A wholly owned subsidiary of the National Dairy Development Board), Road No.44, Jubilee Hills, Hyderabad, rep.by its Managing Director and others.

.... Appellants/

and

$ Narendra Agrawal, s/o. late Shri Nathulal Agrawal, Aged 49 years, occu: Chief Manager (M2)-HR, (under orders of termination), Indian Immunologicals Limited, Hyderabad, (A wholly owned subsidiary of the National Dairy Development Board), Road No.44, Jubilee Hills, Hyderabad, currently residing at B/413, Fresh Living Apartment, Madhapur, Hyderabad and two others.

.... Respondent No.1/ Petitioner

!Counsel for the petitioners : Mr. C.R.Sridharan, learned senior counsel appearing for Mr. G.V.S.Ganesh, learned counsel for appellants.

Counsel for the Respondents: 1st respondent in person, Mr. Namavarapu Rajeshwar Rao, learned Assistant Solicitor General for 2nd respondent;

Mrs. Anjali Agarwal learned counsel for 3rd respondent

<Gist :

>Head Note:

? Cases referred:

1969 (1) SCC 585 2019 SCC Online SC 501 2003 (4) ALD 693 (DB) (1972) 1 SCC 814 (2003) 4 SCC 579 (2004) 3 SCC 172 AIR 1966 SC 81 2019 SCC Online SC 501 AIR 1961 SC 1731 PNR,J & Dr.GRR,J WA No.763 of 2019

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE Dr. JUSTICE G.RADHA RANI

WRIT APPEAL NO.763 OF 2019

JUDGMENT : (Per Hon'ble Sri Justice P.Naveen Rao)

Heard learned senior Counsel Sri C.R.Sridharan for

learned counsel for appellants Sri G.V.S.Ganesh, first

respondent in person, Sri Namavarapu Rajeshwar Rao, learned

Assistant Solicitor General for second respondent and Mrs

Anjali Agarwal, learned counsel for third respondent.

2. Before recording rival contentions, the litigative history

leading to the filing of this writ appeal is noted hereunder:

2.1. First respondent herein was appointed as Manager Grade-

III by proceedings dated 2.3.3007 in the Indian Immunological

Limited (for short IIL); he was promoted as Manager Grade-II

with effect from 1.4.2013 and by circular orders dated

20.3.2014 he was given full charge of Marketing, HR, Training

and Development of entire marketing work force. It appears,

problems mounted on first respondent some time from

November, 2014. On 25.11.2014, first respondent was asked to

vacate his cabin and to share office space with a far junior to

him. His application for casual leave on 26.11.2014 was

rejected. He has escalated his grievances in the form of a PNR,J & Dr.GRR,J WA No.763 of 2019

representation dated 25.11.2014 and mail dated 22.12.2014.

Instead of attending to his grievances, an office order was issued

on 2.1.2015 transferring the first respondent to Distribution

Department at Ooty in state of Tamilnadu. On some health

issues, he was admitted in hospital on 5.1.2015. A show cause

notice was issued to him on 6.1.2015 alleging that he was

unauthorisedly absent without prior permission or intimation.

After discharge from the Hospital, he submitted his reply on

11.1.2015 to the show cause notice. However, by letter dated

16.1.2015, he was asked to vacate the quarter by 15.2.2015. It

appears, he was again admitted in hospital on 23.1.2015 and

while he was taking treatment, on 24.1.2015 order terminating

his services with one month notice was issued by invoking

Clause 18 of the contract of employment.

2.2. The order of termination dated 24.1.2015 was challenged

before this Court in W.P.No.4159 of 2015 wherein, the

appellants herein raised the plea of maintainability of the writ

petition on two grounds. Firstly, employer IIL is a corporate

entity, not involved in discharge of any public duty, therefore, it

is not amenable to writ jurisdiction. Secondly, termination was

passed as per the terms of employment governing his

appointment, therefore, there cannot be any adjudication on the

validation of termination order in a writ petition.

PNR,J & Dr.GRR,J WA No.763 of 2019

2.3. It appears, before learned single Judge elaborate

submissions were made on the issue of maintainability of the

writ petition and also justifying the action of termination of first

respondent. This Court framed following two points for

consideration.

(1) Whether the second respondent company is a 'State' or 'other authority' in order to be amenable to the jurisdiction of this Court under Article 226 of the Constitution of India? and

(2) If so, whether the order of termination of service of the petitioner passed on 21.04.2015 is valid or not?.

2.4. On thorough discussion on the subject of jurisdiction of

writ Court under Article 226 of the Constitution of India,

learned single Judge of this Court held as under:

"In the instant case, we are examining whether the subsidiary company is an 'authority' amenable to jurisdiction under Article 226 of the Constitution of India. A perusal of the provisions of NDDB Act and the Memorandum and Articles of Association of the second respondent clearly shows the control exercised by the holding company in the affairs of the subsidiary company. Thus, it can be concluded that the holding company is having financial, functional and administrative domination under the supervision of the Central Government, though the subsidiary company is being managed by the Board of its own with its own Memorandum and Articles of Association regulating its affairs. In view of this, the second respondent is amenable to the jurisdiction of this Court under Article 226 of the Constitution of India."

2.5. Learned single Judge then considered the validity of order

of termination. Holding that first respondent being a permanent

employee of the first appellant and termination of a permanent

employee without following the procedure prescribed in PNR,J & Dr.GRR,J WA No.763 of 2019

Conduct, Discipline and Appeal Rules of the Company,

imposing punishment of termination/removal from service is

illegal and accordingly set aside the punishment.

2.6. Writ Appeal No.143 of 2017 was filed by IIL challenging

the decision of the learned single Judge. Before the Division

Bench also elaborate submissions were made on behalf of the

appellants on maintainability of the writ petition against order

of termination of an employee of IIL asserting that the company

is not amenable to the jurisdiction of the Writ Court.

2.7. The Division Bench formulated following issues for

consideration:

1. Whether the respondent No.2-company is a Government company, and instrumentality of the State within the meaning of Article 12 of the Constitution of India or not?

2. Whether the respondent No.2 is discharging public functions so as to make it amenable to the writ jurisdiction under Article 226 of the Constitution of India?

3. Whether the petitioner is a permanent employee of the respondent No.2 or not?

4. Whether the termination order dated 20.01.2015 is legally sustainable or not?"

2.8. On the issue of maintainability of the writ petition,

Division Bench held as under:

"25. Thus, the observations drawn above lead to irresistible conclusion that the activities of the respondent No.2 have the flavour of public duties. Hence, this Court holds that the respondent No.2 is a State within the meaning of Article 12 of the Constitution of India and is amenable to writ jurisdiction. The decisions relied upon by the learned Senior Counsel do not help the case of the appellants. For, the activities of the companies/entities therein strictly do not amount to discharging public or statutory duties.

PNR,J & Dr.GRR,J WA No.763 of 2019

....

...

28..........In any event, the doctrine of lifting of corporate veil is not of much relevance in the instant case. For, from the admitted documents forming part of record, it is clear the respondent No.2 is a wholly owned subsidiary company of NDDB and there is a clear admission by the respondent No.2 that it is a public sector undertaking; it is also implementing reservation policy for SC/ST category. Thus, the contention of the learned Senior Court that the learned Single Judge wrongly applied the doctrine of lifting of the corporate veil and that the impugned judgment is per incuriam the settled legal propositions is without any merit."

2.9. The Division Bench also held that first respondent being a

permanent employee, he cannot be removed dehors the Rules

and upheld the decision of the learned single Judge.

2.10. On 11.10.2018, the first appellant terminated the

services of first respondent. This time taking recourse to Rule

31 of the Conduct, Discipline and Appeal Rules of the Company

(CDA Rules). The first appellant states that "the management is

no longer in a position to repose any confidence in you. It is not

in the interest of the company to keep you in employment any

longer. In the best interest of the organization, it has been

decided to terminate your services with the organization with

immediate effect by following Rule 31 of the CDA rules of the

company".

2.11. Challenging the said termination, first respondent filed

W.P.No.38211 of 2018. Having found prima facie that the order

of termination was not made in valid exercise of power of PNR,J & Dr.GRR,J WA No.763 of 2019

discipline and control over the first respondent and due

procedure was not followed, by order dated 25.10.2018 made in

I.A.No.1 of 2018 in W.P.No.38211 of 2018, learned single Judge

of this Court suspended the order of termination.

2.12. Against the interim order dated 25.10.2018, the

appellants preferred Writ Appeal No.1540 of 2018. Before the

Division Bench, it was urged that as management lost

confidence in the first respondent, it is no more desirable to

continue him in service and in valid exercise of power vested in

the Management, his services were terminated taking recourse

to Rule 31 of the CDA Rules. The Division Bench called for the

personal file, perused the events leading to order of termination,

considered the issue at length and having not satisfied with the

reasons assigned to terminate the service of a permanent

employee, sustained the order of learned single Judge.

2.13. Court is informed that against the decision of the

Division Bench in W.A.No.143 of 2017, appellants preferred

Special Leave Petitions and the same are pending before the

Hon'ble Supreme Court. [SLP (C) No.008633--008635 of 2021].

2.14. Before the learned single Judge, again elaborate

submissions are made. Firstly, on the issue of maintainability

of the writ petition; secondly on prayer sought by the first PNR,J & Dr.GRR,J WA No.763 of 2019

respondent in the form of a writ of mandamus, contending that

against order of termination, writ of mandamus is not

maintainable, therefore, writ petition is liable to be dismissed on

that ground alone; and thirdly, the order of termination is valid

as employer lost confidence in the employee and he cannot be

continued in service any more.

2.15. Learned single Judge was not inclined to go into the

issue of maintainability of the writ petition against the

appellants having regard to the earlier judgment of the learned

single Judge which was affirmed by Division Bench. On the

issue of prayer in the writ petition seeking writ of mandamus,

learned single Judge observed that though the first respondent

sought the prayer of writ of mandamus, even if a writ of

mandamus is not maintainable, as further prayer is sought 'to

pass any other order or further orders', the Court can deal with

alternative relief and also mould the relief. Holding so, the

Court decided the issue on merits. On due consideration of the

scope of Rule 31 of CDA Rules, learned single Judge found that

the order of termination of a permanent employee by taking

recourse to Rule 31 of CDA Rules is not legal and valid,

therefore, termination is not sustainable and accordingly

allowed the writ petition. Hence, this Writ Appeal.

PNR,J & Dr.GRR,J WA No.763 of 2019

3. Learned senior counsel reiterated the submissions urged

before the learned single Judge on the issue of maintainability

of the writ petition. According to learned senior counsel, as first

respondent was terminated from service by an order of

competent authority, writ of mandamus is not maintainable and

aggrieved person has to file writ petition praying to issue writ of

certiorari challenging the decision to terminate the first

respondent and calling for records of the decision and to seek

setting aside the said decision. He would submit that learned

single Judge erred in brushing aside the objection on

maintainability of writ petition in the form of mandamus. The

Court can mould the relief only after it has reached particular

stage of accepting the prayer of the petitioner and in the

peculiar facts of a given case to consider what relief can be

granted. At that stage, Court need not grant the prayer sought

and Court can mould the relief to suit the particular situation of

a case and to give quietus to the litigation. Therefore, moulding

of relief would arise only when the writ petition is maintainable.

As writ petition to grant writ of mandamus is not maintainable,

the question of moulding of relief does not arise.

3.1. In support of the said contention, learned senior counsel

placed reliance on the decision of the Hon'ble Supreme Court in PNR,J & Dr.GRR,J WA No.763 of 2019

The Praga Tools Corporation vs. Shri G.A.Imanual and others1,

Ramakrishna Mission and another vs. Kago Kunya and others2,

and Andhra Pradesh Paper Mills Limited, Secunderabad and

another v. Ch.Seetharamaiah and others3.

3.2. He would further submit that even assuming but not

accepting that writ of mandamus is maintainable, the question

of granting relief of setting aside the order of termination does

not arise when employer lost confidence in the employee.

According to the learned senior counsel, relationship between

the master and servant depends on the confidence employer has

on the employee on work ethics, suitability to serve the

employer, etc. Thus an employee can work with the employer

as long as he enjoys the confidence of the employer. Enjoying

the confidence of the employer primarily requires dedication to

the service of the employer, honesty, integrity and complete

loyalty to the employer. Whereas the conduct of first

respondent was not in compliance with these parameters and

he lost confidence of the employer. Once the employee looses

confidence of the employer, the question of continuation of

employee in service does not arise. He would therefore submit

1969 (1) SCC 585

2019 SCC Online SC 501

2003 (4) ALD 693 (DB) PNR,J & Dr.GRR,J WA No.763 of 2019

that the learned single Judge erred in setting aside the order of

termination and directing reinstatement.

3.3. In support of the said contention, learned senior counsel

placed reliance on the decisions reported in Air-India

Corporation, Bombay Vs. V.A.Rebellow and another4, Indian

Railway Construction Co.Ltd., vs. Ajay Kumar5 and Pearlite

Liners (P) Ltd., vs. Manorama Sirsi6.

3.4. Though learned senior counsel also raised the plea of

maintainability of the writ petition contending that the first

appellant is a company registered under the Companies Act, is

not involved in discharge of public duty and therefore not

amenable to writ jurisdiction, having regard to the earlier

decisions of this Court in W.P.No.4159 of 2015 affirmed in

W.A.No.143 of 2017 and the fact that on the same issue, SLP(C)

No.008633--008635 of 2021 is pending, learned counsel has

not pressed this contention.

4. Party-in-person would submit that the validity of order of

termination was considered at length by the Division Bench of

this Court in W.A.No.1540 of 2018 against the interim order of

learned single Judge dated 25.10.2018 made in I.A.No.1 of 2018

(1972) 1 SCC 814

(2003) 4 SCC 579

(2004) 3 SCC 172 PNR,J & Dr.GRR,J WA No.763 of 2019

in W.P.No.38211 of 2018. The Division Bench has considered

the submissions made by the appellant extensively and having

found that order of termination was not sustainable, affirmed

the decision of the learned single Judge granting interim

suspension. He pointed out the observations made by the

Division Bench in various paragraphs to support his contention

that it is no more open for the appellant to maintain this appeal.

4.1. Party-in-person submitted that the appellants have not

come before this Court with clean hands, that they made wrong

statements before the Division Bench in W.A.No.1540 of 2018

and in the counter-affidavit filed in the writ petition. According

to the party-in-person in W.A.No.1540 of 2018 when the

Division Bench enquired from the first appellant, whether the

issue of maintainability of the writ petition under Article 12 of

the Constitution of India was raised before the learned single

Judge at the time of passing interim order, learned counsel

conceded that no such plea was raised. It was also conceded

that in W.A.No.143 of 2017 the issue of maintainability was

raised, but no interim order was granted. Contrary to this

statement made before the Division Bench, in the counter-

affidavit filed in the instant writ petition, wrong statement was

made stating that even though first respondent pointed out the

writ petition was not maintainable, learned single Judge PNR,J & Dr.GRR,J WA No.763 of 2019

proceeded to grant suspension of the termination order,

compelling the appellants to file W.A.No.1540 of 2018. Party-in-

person would submit that this is a deliberate wrong statement

made by the appellants and, therefore, the appellants are

disentitled to maintain the appeal.

4.2. He would submit that the pleas urged and the decisions

cited by the appellants were also considered by the learned

single Judges and the Division Benches and, therefore, it is no

more permissible for the appellants to raise very same pleas.

5. In reply, learned senior counsel pointed out that on the

issue of maintainability of writ of mandamus and issue of loss of

confidence, no submissions are made by the party-in-person

and, therefore, writ appeal deserves to be allowed.

6. Two issues require consideration:

(i) Without specific prayer to issue writ of certiorari, can

the High Court set aside order of termination from

service? and

(ii) Whether the decision of learned single Judge setting aside the order of termination and directing reinstatement is legal and valid?

PNR,J & Dr.GRR,J WA No.763 of 2019

1st issue:

7. Learned senior counsel vehemently contended that writ of

mandamus to set aside the order of termination from services is

not maintainable. Whenever a decision is taken by the quasi-

judicial authority, such decision can be assailed in the form of

writ of certiorari and not in the form of writ of mandamus. He

has cited several decisions to support his claim. We have

carefully considered precedent decisions on scope and ambit of

Article 226 of the Constitution of India.

8. Article 226 of the Constitution of India is couched in

wider terms. It not only vests power in the High Court to issue

prerogative writs in the nature of Habeas Corpus, Mandamus,

Prohibition, Quo-warranto and Certiorari or any of them, but

also vests power to issue directions, orders to enforce right

vested in a person, be it by Part-III of the Constitution of India

or in any other manner. Per force, Article 226 of the

Constitution of India does not restrict the exercise of power to

issue prerogative writs by the High Court in a predetermined

water tight compartment. It is not constrained in exercising its

extraordinary jurisdiction based on a particular relief or a

particular writ prayed by the petitioner and that the High Court

is required to issue only such writ, but no other writ. It is like a

molten metal that can be moulded into any shape/taken in any PNR,J & Dr.GRR,J WA No.763 of 2019

form. In a given situation it extends its long arm to do justice,

reaches out to set right illegal action of an authority or a person

vested with power to take decision affecting petitioner and to

grant relief to him. Thus, the scope of power of High Court is

very exhaustive. It plays the role of a sentry to guard the rights

of people and prevent from being abrogated/impinged/ hindered

in any manner by persons in power or authority.

9. The writ Court can reach out anywhere and to deal with any

situation when a person alleges of impingement of his right, be

it a fundamental right or a right vested in him in any other

manner. Such right also includes contract of employment.

Justice Krishna Iyer said, "The mentor of law is justice and a potent drug

should be judiciously administered. Speaking in critical retrospect and

portentous prospect, the writ power has, by and large, been the people's

sentinel on the qui vive and to cut back on or liquidate that power may cast a

peril to human rights." [Paragraph-9, Rohtas Industries Ltd. v. Staff Union :

(1976) 2 SCC 82].

10. Though the Constitution makers have not specified the

contours of its scope and extent, over a period of time law has

evolved to broadly guide the writ Court to deal with a particular

situation. By now, the parameters are settled and well laid

down. Proverbial, 'Lakshmana rekha' is drawn and warned not

to cross as consequences can be disastrous to the polity at PNR,J & Dr.GRR,J WA No.763 of 2019

large, if Court assumes unguided power. However, the sea of

law makes it clear that within the laid down contours, the power

to wield long arm of justice is in tact to enforce right of a person.

"The Founding Fathers placed no limitation or fetters on the

power of the High Court under Article 226 of the Constitution

except self-imposed limitations. The arm of the Court is long

enough to reach injustice wherever it is found. The Court

as sentinel on the qui vive is to mete out justice in given facts."

[Paragraph 59, Air India Statutory Corpn. V. United Labour Union :

(1997) 9 SCC 377 ].

11. In Election Commission v. Saka Venkata Rao (AIR 1953 SC 210),

the Hon'ble Supreme Court noted the reason why Article 226 of

the Constitution is couched in wider terms:

"6. .... In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England..........."

12. In Dwarka Nath v. ITO7, the Hon'ble Supreme Court succinctly explained the wide scope of Article 226 of the Constitution of India. Hon'ble Supreme Court held,

AIR 1966 SC 81 PNR,J & Dr.GRR,J WA No.763 of 2019

"4. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads:

"...every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."

This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in Basappa v. Nagappa [(1962) 2 SCR 169] and Irani v. State of Madras [(1955) 1 SCR 250] .

XXX

9. The High Court mainly dismissed the writ petition on the ground that the affidavit filed in support of the writ petition was highly unsatisfactory and that on the basis of such an affidavit it was not possible to entertain the petition.

...... That apart, if the affidavit was defective in any manner the High Court, instead of dismissing the petition in limine, should have given the appellant a reasonable opportunity to file a better affidavit complying with the provisions of Rule 1 of Chapter XXII of the Rules. We cannot, therefore, agree with the High Court that the petition was liable to be dismissed in limine in view of the alleged defects in the affidavit."

(emphasis supplied)

13. In his address on the topic, 'Some Constitutional Problems'

as part of Sir Chimanlal Setalvad, Law Lectures in University of

Bombay (1978), in his inimical style Justice Subba Rao

reminded Constitutional Courts, their duty to enforce rights of PNR,J & Dr.GRR,J WA No.763 of 2019

citizens and to adopt liberal approach in entertaining writ

petition. In his words,

"........ Under article 32 the right to move the supreme Court is a guaranteed right. But under article 226, the right to move the High Court is a discretionary remedy. Those two provisions have been couched in the widest terms so as to enable the Courts to mould their relief to meet the requirements of different situations. The width of the provisions is discernible in the following expressions: (1) Directions; (2) Orders; (3) Including; (4) Nature. In addition, in article 226 much wider words are found, e.g. "any person for any other purpose.

........ The clauses are designedly made wide to avoid technical difficulties that confronted English Judges in enforcing the rights of citizen......

........ People, who are aggrieved by the illegal or arbitrary orders or acts of the officers and who have faith in Courts, rush to the High Court to get their grievances redressed but the High Court dismisses most of them on one technical ground or other and even if it allows some of them, more often than not, it only quashes the orders but leaves the matters to be decided over again by the same officers with the result that the said officers without redressing the grievances clothe their orders in more acceptable forms. Further, emboldened by this process, they adopt in future more technical than equitable postures and conform more to the form than to the substance. With the result, the aggrieved parties, not having any other course, rush to the High Court with more writs. This vicious circle must be broken. In this context, it is only the liberal construction of article 226 and article 32 given by the Supreme Court earlier that must be pursued to the logical conclusion so that the High Court or the Supreme Court as the case may be can reach injustice wherever it is found. Technicalities of the English Law as stated earlier need not be permitted to obstruct the course of justice. Instead of concentrating on procedural technicalities, the Courts may concentrate their attention on problems having significance viz., where, when and how much to review. The procedure if properly evolved by convention and practice, would enable the Courts to control the arbitrary actions of the authorities."

(Emphasis supplied)

14. In Deepak Bajaj v. State of Maharashtra:[(2008) 16 SCC 14],

the Hon'ble Supreme Court said,

"19. Learned counsel for the respondent submitted that a writ of habeas corpus lies only when there is illegal detention, and in the present case since the petitioner has not yet been arrested, no writ of habeas corpus can be issued. We regret we cannot agree, and that for two reasons. Firstly, Articles 226 and 32 of the Constitution permit the High Court and the Supreme Court to not only issue the writs which were traditionally issued by British courts, but these articles give much wider powers to this Court and the High Court. This is because Articles 32 and 226 state that the Supreme Court and High Court can issue writs in the nature of habeas corpus, mandamus, certiorari, etc. and they can also issue orders and directions apart from issuing writs.

PNR,J & Dr.GRR,J WA No.763 of 2019

20. The words "in the nature of" imply that the powers of this Court or the High Court are not subject to the traditional restrictions on the powers of the British courts to issue writs. Thus, the powers of this Court and the High Court are much wider than those of the British courts vide Dwarka Nath v. ITO [AIR 1966 SC 81] (vide AIR para 4), Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2 SCC 691 : AIR 1989 SC 1607] (vide AIR paras 16 to 18), etc.

21. Secondly, what the petitioner really prays for is a writ in the nature of certiorari to quash the impugned detention order and/or a writ in the nature of mandamus for restraining the respondents from arresting him. Hence, even if the petitioner is not in detention a writ of certiorari and/or mandamus can be issued."

[emphasis supplied]

15. In Bandhua Mukti Morcha v. Union of India: [(1984) 3 SCC

161], the Hon'ble Supreme Court dwell deep into the scope of

Article 32 of the Constitution of India and the role of the Hon'ble

Supreme Court and also held that what is said about Supreme

Court equally applies to a High Court. Relevant extracts reads

as under:

"13. ..... It is not only the high prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari which can be issued, but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ. This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution-makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. The Constitution-makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be appropriate in a given case for enforcement of a fundamental right. ..."

Xxxx "There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can sometimes lead to injustice, particularly where the parties are not evenly balanced in social or economic strength. Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than PNR,J & Dr.GRR,J WA No.763 of 2019

anything else, his inability to produce relevant evidence before the Court."

xxxx "We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people."

"14. Now it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the Court in support of their case and equally where an action is brought on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and place it before the Court."

"15. We may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Article 226. In fact, the jurisdiction of the High Courts under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for the enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights."

(emphasis supplied)

16. In Ramakrishna Mission and another vs. Kago Kunya and

others8, the Hon'ble Supreme Court held as under:

34. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K.K. Saksena [K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed.

17. In Bandhua Mukti Morcha Hon'ble Supreme Court observed that,

"We have therefore to abandon the laissez faire approach in the

2019 SCC Online SC 501 PNR,J & Dr.GRR,J WA No.763 of 2019

judicial process particularly where it involves a question of

enforcement of fundamental rights and forge new tools, devise new

methods and adopt new strategies for the purpose of making

fundamental rights meaningful for the large masses of people"

(Paragraph-13). In State of T.N. v. Elephant G. Rajendran : [(2019)

14 SCC 29] same is echoed when the Hon'ble Supreme Court

observed, "..... in the process of reaching out to enforce law and

protect right of a person, the jurisdiction of constitutional Courts

under Article 226 and Article 32 can be used to forge new methodology

to achieve the constitutional objectives. [paragraph 64].

(emphasis supplied).

18. The issue whether the first appellant is amenable to writ

jurisdiction on the ground that IIL is not a State or

instrumentality and not amenable to writ jurisdiction was

decided in the earlier round of litigation before this court and

pending consideration before Hon'ble Supreme Court. In this

round of litigation, the appellants raise the plea of

maintainability of the writ petition on the prayer sought by the

1st respondent. In W.A.No.143 of 2017, issues 1 and 2

considered by the Division Bench read as under:

(1) Whether the respondent No.2-company is a Government company, and instrumentality of the State within the meaning of Article 12 of the Constitution of India or not ?

PNR,J & Dr.GRR,J WA No.763 of 2019

(2) Whether the respondent no.2 is discharging public functions so as to make it amenable to the writ jurisdiction under Article 226 of the Constitution of India ?

19. On both aspects the Division Bench held against the

appellants and held that the IIL is amenable to writ jurisdiction.

20. The frontal attack against judgment in the writ petition is

that the petitioner/first respondent did not seek 'writ of

certiorari' and therefore learned single judge erred in

entertaining writ petition and granting relief of reinstatement.

The mighty IIL is not letting any stone unturned to create

formidable obstacles against resumption of employment by first

respondent by creating aura of invisibility and ducking under

the shield, taking high ground that its decisions are immune

from scrutiny by this Court under Article 226 of the

Constitution of India. All this high ground is apparently to

prevent its illegal decisions from scrutiny by this Court under

Article 226 of Constitution of India by taking the plea against

maintainability of writ petition, in the first round of litigation on

'amenable to writ jurisdiction' and now on petitioner 'not seeking

to issue writ of certiorari'. In other words, the contest is more on

form and not on substance. Apparently, these bouncers are

hurdled knowing fully well that it is on a week wicket to justify

its decision, as assessed in second issue.

PNR,J & Dr.GRR,J WA No.763 of 2019

21. Per force, the provisions of Article 226 of the Constitution

of India are clear as crystal on scope and width of power of High

Court to deal with an allegation of infringement of right of a

person. Whenever a cloud of uncertainty is sought to be created

on scope of exercise of this power, with a clear purpose of

evading wrath of writ court from tyrannical decisions by persons

exercising authority to offend right of a person, the

constitutional courts, in no uncertain terms, have put the foot

down. By now, the constitutional courts have built citadel,

formidable and all encompassing, to reach out to person in need

and uphold his right. Few decisions noted above illuminate this

path and leave no ambiguity on scope of exercise of power by

the High Court.

22. The prayer in the writ petition reads as under:

"In the above circumstances, it is therefore prayed that this Hon'ble Court may be pleased to issue an appropriate Writ, Order, or Direction, more particularly one in the nature of writ of mandamus declaring the termination order 11th October, 2018 issued by the respondent no.1 as mala fide and illegal and pass such other order or orders in the interest of justice."

(Emphasis supplied)

23. By this prayer, petitioner sought to declare the order of

termination as mala fide and illegal. He sought far wider relief

leaving it to the Court to issue appropriate writ. He prayed to

issue appropriate writ, order or direction and incidentally also PNR,J & Dr.GRR,J WA No.763 of 2019

prayed to issue writ of mandamus. Thus, considering the

submission of learned senior counsel with all seriousness, it

cannot be said that petitioner has sought only a particular

relief. Even otherwise, Court is not precluded from issuing

appropriate order or direction and/or writ as deemed fit in the

cause of justice. Its power to issue appropriate writ, order or

direction is not constrained by framing of the prayer when in

substance the court is convinced of injustice caused to the

petitioner.

24. A permanent employee of IIL is entitled to continue in

service until he attains age of superannuation. Employer can

dispense with services of permanent employee before he attains

the age of superannuation, either in the form of disciplinary

action or on account of reduction in establishment. As an

employee of first appellant, the first respondent is governed by

the discipline and appeal rules. The rules vest right in the first

respondent requiring his employer to follow due process of law

before taking disciplinary action and dispensing with his

services. If the employer intend to dispense with services of

employee on the ground of misconduct, it is mandatory for the

employer to follow procedure envisaged in the rules governing

the service. As dispensing with the services of employee would PNR,J & Dr.GRR,J WA No.763 of 2019

result in penal consequences, no such decision can be taken

without following due process of law. An aggrieved employee

can seek enforcement of his right to follow due process of law

before taking disciplinary action against him by availing the

remedy under Article 226 of the Constitution of India before this

Court.

25. The services of first respondent were terminated by taking

recourse to Rule 31. As noticed in the second issue, this Rule

has no application. It thus, amounts illegal exercise of power.

By such illegal decision, the petitioner's right to continue in

service till he attains age of superannuation is abruptly

curtailed. It has civil and evil consequences. In exercise of

power of judicial review, the writ Court can correct the authority

exceeding its jurisdiction and competence and mandate him to

act in accordance with law. Having noticed that grave illegality

is committed to wield power of termination, Court cannot tie

itself in knots on technicalities to rescue the victim from

palpable illegal course adopted by the employer.

26. Further, as observed by the Hon'ble Supreme Court in

Bandhuva Mukti Morcha (supra), when one of the parties to

litigation is weak as compared to the other side, the court must

reach out to him as a friend in need of justice. Here an PNR,J & Dr.GRR,J WA No.763 of 2019

employee is prosecuting his grievance in person pitted against

mighty employer. He cannot be expected to have same amount

of legal acumen. Once the High Court is satisfied that injustice

is caused to the petitioner and his grievance has to be remedied,

it must reach out to him and undo the injustice. Once the

Court is convinced of the injustice, the construction and form of

the prayer cannot come in the way to render justice. Form and

texture cannot over shadow the substance.

27. At this stage, the Court is reminded of the observations

made by the Hon'ble Supreme Court in P.J.Irani Vs. State of

Madras and another9. Hon'ble Supreme Court said,

"15....... Particularly so when the power of the High Court under Article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus etc. as these writs have been understood in England, but the power is general to issue any direction to the authorities viz. for enforcement of fundamental rights as well as for other purposes."

28. As observed by the Hon'ble Supreme Court in Bandhua

Mukti Morcha (supra) and in Elephant G.Rajendran (supra), the

Court must forge new tools, devise new methods, and adopt new

strategies to achieve constitutional objectives and to reach out

to the person in distress by extending its long arm of justice. As

a sentry endowed with power to guard against violation of a

right of a person knocking the doors of the High Court, the High

AIR 1961 SC 1731 PNR,J & Dr.GRR,J WA No.763 of 2019

Court cannot entangle itself in the web of procedural defects to

do substantive justice. Such course is anti-thesis to the

constitutional scheme and defeats the very objective of wide

powers conferred on the High Court by Article 226 of the

Constitution of India.

29. For all the aforesaid reasons, we are not persuaded to fall

in line with the submissions of learned senior counsel. This

issue is held against the appellants.

2nd issue:

30. First respondent was terminated from service by order

dated 24.1.2015 invoking clause-18 of the appointment letter

dated 02.03.2007 with one month basic pay. Clause-18 of the

initial appointment letter vests power in the Management to

terminate the services of a contract employee. This clause was

invoked treating the first petitioner as contract employee. In

W.P.No.4159 of 2015, the order of termination was set aside,

affirmed by the Division Bench. Learned single Judge as well as

Division Bench has given clear finding that the first respondent

is a regular employee and is governed by the service rules

notified by the first appellant and employer cannot resort to

termination by referring to a term of initial appointment.

PNR,J & Dr.GRR,J WA No.763 of 2019

31. Subsequent to setting aside the order of termination in

the above manner and on reinstating the first respondent,

disciplinary action was initiated against the first respondent.

On 26.02.2018, it appears, a show-cause notice was issued

calling for explanation. First respondent seems to have filed his

response to the said show-cause notice, received by the first

appellant on 12.03.2018. Not satisfied with the explanation

offered and taking umbrage on the allegations made by the first

respondent against the management, charge-sheet was drawn

on 09.04.2018. Charge-sheet contains eleven paragraphs

dealing with various aspects of alleged misconduct committed

by the first respondent. On 28.09.2018, another charge-sheet

was drawn. This charge-sheet also lists out various instances of

misconduct alleged to have been committed by the first

respondent, directing the first respondent to submit his written

explanation within seven days. It appears first respondent

submitted his explanation dated 08.10.2018.

32. On 11.10.2018, the orders were issued terminating the

services of the first respondent. This order does not refer to the

allegations leveled in two charge-sheets, but deals with new

aspects of his conduct. Disciplinary Authority assumes that

such behavior could seriously jeopardize the interests of the

organization and would pose serious threat to reputation and PNR,J & Dr.GRR,J WA No.763 of 2019

overall image of the company and would harm its continued

existence. Order of termination from service was made taking

recourse to Rule 31 of Indian Immunological Limited Conduct,

Disciplinary and Appeal Rules (for short 'the Rules'), giving one

month notice. At the end of the order, it was also indicated that

termination would be without prejudice to the legal proceedings

arising out of earlier charge-sheets issued on him.

33. The order of termination dated 11.10.2018 reads as

under:

"INDIAN IMMUNOLOGICALS LIMITED

Date:11th October, 2018 To

Mr.Narendra Agrawal, Address: B/413, Fresh Living Apartment, Image Hospital Lane, Madhapur, Hyderabad - 500 081.

Dear Mr.Agrawal,

Loss of Confidence

1. CDSCO conducted a Complaint Verification around our Manufacturing practices at Karakapatla Plant on 4th and 5th Oct 2018. And vide its report dated 5th October 2018 the CDSCO, has concluded that the Company viz. IIL has indeed manufactured the test batches of Rabies Antigen Bulk and Rabies Vaccine (Thiomersal Free). It is reliably learnt that this detained investigation was undertaken by the CDSCO along with their Local team and State Drug Inspector only on a complaint raised by you. It appears that it is you who had complained that (i) IIL does not comply even with the most mandatory condition for grant of commercial license and (ii) that it obtained commercial license on fake documentation for manufacture of Rabies Antigen Bulk. However, the report of the CDSCO clearly establishes that the Company had followed all the mandatory conditions and that it fulfilled all the requirements for grant of commercial license to manufacture Rabies Antigen Bulk, thereby invalidating your complaint.

2. Further it has also come to our notice that you were in possession of certain documents pertaining to Bulk Antigen and Excipients Raw Material. The document on Bulk Antigen was a Controlled Copy and these documents should not be in the hands of PNR,J & Dr.GRR,J WA No.763 of 2019

unauthorized personnel. You were not authorized to handle the above documents.

3. From a document extracted from the IT server backup (pertaining to your laptop) it is also found that you were contemplating an all-out action against the Company if your demands were not met.

The instances cited above are conclusive evidence that you are indulging in anti-company activities that could seriously jeopardize the interests of the Organization. You have been holding a responsible senior position in the Organization and expected to maintain high fiduciary relationship with the Organization. Unfortunately you have acted in breach of your duties and responsibilities and abused your senior position by making false, defamatory, derogatory and baseless accusations against the Organization.

All of the above cited instances, coupled with your incessant, unjust and baseless tirade that you run against the Management pose a serious threat to the interests, reputation and overall image of the Company and can even harm its continued existence.

That being the case, the Management is no longer in a position to repose any confidence in you. It is not in the interest of the Company to keep you in employment any longer. In the best interest of the Organization, it has been decided to terminate your services with the organization with immediate effect by following Rule 31 of the CDA Rules of the Company. You are being paid one month's salary in lieu of notice. The cheque for Rs.77,621 bearing No.734891 dated 10.10.2018 drawn on HDFC Bank, Lakdikapul branch is enclosed herewith.

This is without prejudice to pending legal proceedings arising out of earlier charge sheets issued to you and our rights and contentions therein.

For Indian Immunologicals Limited

Sd/-

Dr.K.Anand Kumar Managing Director"

(emphasis supplied)

34. Three aspects are noticed from this document: first, it is

an order of termination of service by giving one month pay in

lieu of notice; second, termination is on the grounds mentioned

therein which castigate the conduct and character of first

respondent and allege loss of confidence of the employer

because of the various instances of misconduct stated to have

been committed by the first respondent; and third, order of PNR,J & Dr.GRR,J WA No.763 of 2019

termination is by dispensing with normal procedure of taking

disciplinary action and taking recourse to extraordinary power

vested in the disciplinary authority by Rule 31 of the Rules of

the company.

35. In view of the finding recorded by the Division Bench in

W.A.No.140 of 2017, there is no more a doubt on the status of

the first respondent as a permanent employee of the IIL and is

governed by the Rules. Further, as power under Rule 31 is

invoked it is obvious that the first appellant treated the first

respondent as a permanent employee.

36. To test the validity of the decision to terminate the first

respondent, it is necessary to consider the scope of relevant

Rules. More particularly Rules 510, 2411, and 3112.

Rule 5. Misconduct. (1) to (4) xxx (5) Acting in a manner prejudicial to the interests of the Indian Immunologicals Ltd. (6) Willful insubordination or disobedience whether or not in combination with others of any lawful and reasonable order of his superior. Xxx (11) Interference or tampering with any safety devices installed in or about the premises of the Indian Immunologicals Ltd.

(20) Commission of any act subversive of discipline or of good behaviour (21) Abetment or of attempt at abetment of any act which amounts to misconduct Note: The above instances of misconduct are illustrative in nature and not exhaustive.

Rule 24: Penalties: The following penalties may be imposed on an employee, as herein after provided, for misconduct committed by him or for any other good and sufficient reasons. Xxx Major Penalties: (e) Reduction to a lower grade or post, or to a lower stage in a time scale. (f) emoval from service which shall not be a disqualification for further employment. (g) Dismissal. Explanation: The following shall not amount to a penalty within the meaning of this Rule.

(i) to (iv) xxxxx

(v) Termination of service: (a) Of an employee appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment. (b) Of an employee appointed in a temporary capacity otherwise than under a contract or agreement, on the expiration of the period for which he was appointed, or earlier in accordance with the terms of his appointment. (c) Of an employee appointed under a contract or agreement, in accordance with the terms of such contract or agreement and (d) Of any employee on reduction of establishment.

PNR,J & Dr.GRR,J WA No.763 of 2019

37. Rule 3(a) of the Rules defines the term 'employee'. Rule 25

provides for 'Disciplinary Authority' for imposing penalties

under Rule 24. Rule 26 deals with 'Procedure for Imposing

Major Penalties'. Rule 27 deals with 'Action on the Inquiry

Report'. Rule 33 deals with 'Appeals' against order imposing

penalties on employee. Rule 34 deals with the power of 'Review'

wherein the reviewing authority may call for record of any case

within six months from the date of final order against any major

penalty. Rule 31 envisages 'special procedure in certain cases'.

It vests residuary power in the disciplinary authority to dispense

with procedure envisaged in Rules 26 and 27 of the Rules and

to impose any of the penalties prescribed in Rule 24. [Note: It is

seen from the copy of the rules placed before this Court that

rule numbers are wrongly mentioned in the body of some of the

Rules. Therefore, we have noted the Rules as per the

arrangement in the copy of the Rules placed before us].

38. In Rule 5, very exhaustive definition is given on what

constitutes 'misconduct'. Based on the allegations leveled

Rule 31. Special Procedure in certain cases: Notwithstanding anything contained in rule 25 or 26 or 27, the disciplinary authority may impose any of the penalties specified in rule 23 in any of the following circumstances: (i) The employee has been convicted on a criminal charge or on the strength of facts or conclusion arrived at by a judicial trial; or (ii) Where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the disciplinary authority is satisfied that in the interest of the security of the Indian Immunologicals Ltd, it is not expedient to hold any inquiry in the manner provided in these rules.

PNR,J & Dr.GRR,J WA No.763 of 2019

against the first respondent, it is possible to apply Sub-Rules 5,

6, 11 and 20. At any rate, note appended to Rule-5 vests

reserve power to describe any conduct of an employee as

amounting to misconduct. Rule 24 deals with 'penalties' -

minor penalties and major penalties. On an allegation of

misconduct, the competent authority can impose any of the

penalties provided in Rule 24, divided into major and minor

penalties. Major penalties include reduction to a lower grade or

post, or to a lower stage in a time scale; removal from service;

dismissal from service. To impose any of these three penalties,

it is mandatory to conduct detailed enquiry as specified in Rule

26 and procedure required to be followed post enquiry as

specified in Rule 27.

39. As can be seen from the explanation appended to Rule 24,

termination from service is not a penalty. Resort to termination

from service can be had covering the categories of employees

mentioned therein or on a particular contingency. A probationer

can be terminated during or at the end of the period of

probation; temporary employee can be terminated during the

period of temporary employment or on expiry of the period for

which he was appointed; an employee appointed under a

contract or on agreement can be terminated as per the terms of

contract or agreement. A permanent employee can be PNR,J & Dr.GRR,J WA No.763 of 2019

terminated only on reduction of establishment. Thus, power to

terminate the services can be resorted to only against employees

appointed as indicated in Rule 24(v)(a)(b)(c) or when there is

reduction of establishment. Rule 24 makes it clear that resort

to this provision is not as a measure of punishment or in lieu of

disciplinary action.

40. Rule 31 deals with a particular contingency to dismiss/

remove an employee. It can be invoked when an employee was

convicted on a criminal charge or on the strength of facts or

conclusions arrived at by a judicial trial, without conducting

enquiry; when it is not reasonably practical to hold an enquiry

in the manner provided in the Rules or in the interest of

security of the IIL; or when it is not expedient to hold an enquiry

in the manner provided in the rules, the procedure envisaged in

the rules can be dispensed with. Thus, Rule 31 carves out

exceptions to impose any of the penalties prescribed in Rule 24

on a permanent employee dispensing with regular procedure

envisaged by the Rules. It can be resorted to in exceptional

circumstances and only if contingencies mentioned therein are

attracted and not as a matter of course. It being an exception,

it cannot subsume the main provision. It curtails the right of

employee for fair hearing and opportunity before holding him

guilty and imposing on him any of the penalties, including PNR,J & Dr.GRR,J WA No.763 of 2019

dismissal/removal from service. It should receive strict

construction.

41. From the reading of Rule 24, it is noticed that termination

of service is not one of the penalties prescribed in the Rules.

Power under Rule 31 is available only to dispense with

procedure envisaged in Rules 26 and 27 to impose any of the

penalties prescribed in Rule 24. Rule 31 does not confer power

to terminate a permanent employee by giving one month notice

or one month salary in lieu of notice. Further, termination from

service can be resorted to only in the four contingencies

mentioned in the explanation appended to Rule 24. In other

words, a permanent employee cannot be terminated unless

there is a reduction of establishment, at any rate, not as a

measure of disciplinary action. In the case on hand, the

termination is not on account of reduction in establishment.

Even when there is reduction in establishment, the principle of

'last come first go' has to be adopted and not to pick an

employee randomly.

42. Further, the present order of termination was preceded by

order of termination dated 24.01.2015, set aside by this Court

in W.P.No.4159 of 2015, affirmed by the Division Bench in

W.A.No.143 of 2017, show-cause notice dated 26.02.2018, PNR,J & Dr.GRR,J WA No.763 of 2019

charge sheet dated 09.04.2018, charge-sheet dated 28.09.2018.

All of this and for the reasons assigned in the order of

termination, it is apparent that the termination of service of first

respondent, impugned herein, is not a termination simpliciter,

but termination on the allegations of misconduct, is punitive

and stigmatic and results in penal consequences. Seizing of

relationship of employer and permanent employee on

misconduct, whether employer calls it as dismissal/removal/

termination, cannot be without following due process.

43. There is no dispute on the proposition that an employee

can continue in employment as long as he enjoys the confidence

of the employer. If the employee earns displeasure of the

employer, the employer can put an end to the service of the

employee. Such displeasure can be because of his conduct,

behavior and work output and employer opines that his

continuation in employment is not conducive to the work

atmosphere of the employer. If the employer is a statutory

authority/an instrument of the State/a creature of the State or

its instrumentality and the conditions of service are governed by

service Rules/Regulations, he can only put an end to the

services of an employee strictly in accordance with the Rules/

Regulations governing the service.

PNR,J & Dr.GRR,J WA No.763 of 2019

44. Dispensing with the services of an employee perforce

mean employer is not satisfied with employee and lost his

confidence. The form and texture of dispensing from service

can be, by way of termination or dismissal or removal. By any

of these measures the relationship between employer and

employee comes to an abrupt end. Mere use of term 'loss of

confidence' does not escalate displeasure of employer to higher

degree and camouflages the decision de-horse the rules. The

term used in the order impugned in the writ petition is mere

rhetoric to what was obvious.

45. Having regard to the purport and scope of Rules 24, 26

and 27, Rule 31 is not attracted to the case on hand. Therefore,

termination of service of first respondent is ex facie illegal,

without power and jurisdiction. It is void ab initio. As order of

termination is found to be ex facie illegal, a void order, the

necessary corollary is reinstatement. It is premature to going

into the aspect of whether the employee 'lost confidence', set up as

a defense to over come palpably illegal order, for, the issue of

'loss of confidence' is yet to be established by due process and it is

only the assumption of the competent authority. The chronology

of actions taken against the 1st respondent also indicate that the

allegations of misconduct are evolving, improving from stage to

stage. These allegations are yet to be established. He cannot PNR,J & Dr.GRR,J WA No.763 of 2019

prejudge the culpability of the employee without affording him

opportunity by duly following the procedure required by law to

take action against a permanent employee. Even for that matter,

a temporary employee is also entitled to opportunity of hearing

if he is sought to be terminated on alleged misconduct. We

therefore do not see any error in the directions issued by

learned single Judge. The second issue is answered accordingly.

46. For the aforesaid reasons, the Writ Appeal fails and is

accordingly dismissed. Pending miscellaneous petitions if any

shall stand closed.

______________________________ JUSTICE P.NAVEEN RAO

______________________________ DR.JUSTICE G.RADHA RANI Date:25.02.2022 Tvk/kkm PNR,J & Dr.GRR,J WA No.763 of 2019

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE Dr. JUSTICE G.RADHA RANI

WRIT APPEAL NO.763 OF 2019

Date: 25.02.2022 Tvk/kkm