Telangana High Court
M. Jayasri, Khammam vs Principal District And Session Judge, ... on 12 August, 2024
* THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR
RAO
+WRIT PETITION No.31787 OF 2014
% 12-08-2024
# Smt. M. Jayasri
....Petitioner
Vs.
The Principal District & Sessions Judge, Khammam and others.
.... Respondents
!Counsel for the Petitioner : Sri W.B. Srinivas, learned Senior
Counsel, representing Ms. K.
Kavya Sree Lalitha, learned
counsel for the petitioner
Counsel for respondents : Sri Bathula Raj Kiran, learned
Standing Counsel appearing for
respondent Nos.1 and 2
<Gist :
>Head Note:
? Cases referred:
1. (2009) 13 SCC 600
2. (1984) 3 SCC 316
3. (1984) 1 SCC 1
4. (1985) 2 SCC 35
5. AIR 1991 SC 2010
6. (2013)10 SCC 324
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WRIT PETITION No.31787 OF 2014
Between:
Smt. M. Jayasri
....Petitioner
Vs.
The Principal District & Sessions Judge, Khammam and others.
.... Respondents
ORDER PRONOUNCED ON: 12.08.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.31787 of 2014
ORDER (per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)
The present Writ petition is filed for the following relief:
".......Issue a writ, order or direction and more
particularly one in the nature of Writ of Mandamus
declaring 1st respondent's Proc. Order
C.Dis.No.62/ADM/DCK, dated 11.08.2014 as
illegal, arbitrary, contrary to evidence on record,
unjust, null and void and consequently set aside
the same with all consequential benefits and
pass....".
2. Heard Sri W.B. Srinivas, learned Senior Counsel,
representing Ms. K. Kavya Sree Lalitha, learned counsel for the
petitioner, Sri Bathula Raj Kiran, learned Standing Counsel
appearing for respondent Nos.1 and 2.
3. Learned counsel for the petitioner submits that the
petitioner's marriage was performed with Sri MVPN Balaji on
29.04.1998 at Veerabhadra Swami Temple, Kuravi village,
Warangal District and the same was an arranged marriage. Prior
to the marriage of petitioner with Sri MVPN Balaji, he married one
Janaki, but the said marriage was dissolved by the Court of Senior
Civil Judge, Khammam, in O.P.No.39 of 1997, dated 14.11.1997.
The petitioner, after her marriage, started living with her husband
MVPN Balaji and settled in Khammam. While so, the petitioner's
husband was transferred to Madira. While working there, the
petitioner's husband was murdered by the extremists on the
intervening night of 24/25.01.1999. Later, the petitioner
submitted an application to the 1st respondent for issuance of a
service certificate, payment of ex-gratia amount, and to provide
employment to the petitioner on compassionate grounds. Pursuant
to the said application, the 1st respondent appointed Sri P.
Gureppa, Junior Civil Judge, Madhira, to enquire into the matter
with regard to genuineness of petitioner's marriage with the
deceased Balaji.
4. Learned counsel for the petitioner further submits that after
completion of the enquiry, the Enquiry Officer, Junior Civil Judge,
Madhira, submitted a detailed enquiry report on 28.10.1999.
During the enquiry, the Enquiry Officer examined the petitioner,
her parents, respondent No.3 and the deceased's father, and
respondent No.3 filed written arguments denying all the exhibits
filed by the petitioner. A finding in the said enquiry report is:
"It clearly made out that those are marriage photos between
Balaji and Janaki and the documents Ex.P1 to P3, P5, P7 to
P13 show that marriage was performed between the petitioner
herein and the deceased Balaji."
A perusal of the enquiry report further reveals that, after
examining respondent No.3 and her husband, the Enquiry Officer
observed that Balaji resided separately at Khammam after marriage
with his first wife, Janaki, and after divorce also, the deceased
Balaji resided separately and attended his duties. The Enquiry
Officer also held that the contents of Ex.P5 filed therein (Ex.P7) are
relevant. The deceased Balaji categorically stated that he married
the present petitioner, Jayasree. Finally, the Enquiry Officer held
that the marriage between the petitioner, Smt. Jayasree and Sri
Balaji is genuine.
5. Learned counsel for the petitioner further submits that after
declaring the genuineness of the marriage of the petitioner, the 1st
respondent issued proceedings in Dis.No.6948/PR
No.68/99/ADM/DCK, dated 21.12.1999 appointing the petitioner
as Process Server on compassionate ground and posted her at
Munsif Magistrate's Court at Madhira. As such, the petitioner
joined the duty. While she was working as Process Server in
Madhira, the 3rd respondent lodged a complaint against the
petitioner to the 1st respondent stating that the petitioner is not a
legally wedded wife of her son, Balaji and that her son Balaji has
not married for the second time after divorcing his first wife,
Janaki. Subsequently, while the complaint was pending, the 3rd
respondent filed a suit in O.S.No.1108 of 1999 on the file of
Principal Junior Civil Judge Court at Khammam, for a declaration
that she is the sole heir of the deceased Sri Balaji and for a
consequential injunction. The said suit was decreed holding that
the plaintiff is entitled for declaration as sole surviving legal heir of
the deceased Balaji and also for relief of injunction as prayed by
her. It is the contention of the petitioner that her advocate
withdrew without informing her and she could not engage another
advocate, resulting in ex-parte judgment in the above suit. As
such, she filed an application to get the suit re-opened, but failed.
After that, she filed revision and CMA No.385 of 2012. This Court
allowed the C.M.A. on 04.12.2023 by setting aside the Order
dt.15.12.2011 in I.A.No.2225 of 2011 in I.A.No.2258 of 2009 in
A.S.S.R. No.7716 of 2009 on the file of the learned I Additional
District Judge at Khammam and thereby the petition vide I.A.
No.2225 of 2011 in I.A.No.2258 of 2009 in A.S.S.R. No.7716 of
2009 is allowed. Accordingly, I.A.No.2258 of 2009 in A.S.S.R.
No.7716 of 2009 shall be restored to its original number. The
learned trial Court Judge shall dispose of I.A. No.2258 of 2009 in
A.S.S.R. No.7716 of 2009 as expeditiously as possible preferably
within one (01) month from the date of receipt of copy of this order.
The said A.S.S.R. No.7716 of 2009 is pending as on today.
6. Learned counsel for the petitioner further submits that based
on the ex-parte judgment and decree dated 06.05.2005 passed in
O.S.No.1108 of 1999, and the complaint of the respondent No.3,
dated 30.10.2006, the Disciplinary Authority-cum-Principal
District & Sessions Judge/respondent No.1 has issued a show-
cause notice to the petitioner as to why she should not be
terminated from the service. Subsequently, the Enquiry Officer-
cum-Senior Civil Judge, Khammam, was appointed to conduct the
enquiry. The operative portion of the enquiry report is as follows:
"I am of the opinion that the complainant has
established that in view of the decree dt.06.05.2005
passed by Civil Court in O.S. No.1108 of 1999
declaring PW.1 as the sole surviving legal heir of the
deceased employee and that the charged employee is
not the legally wedded wife of deceased Balaji, the
acts of charged employee in submitting
representations while getting appointment as
Attender in Judicial Department, Khammam District,
on compassionate grounds, amount to mischief and
misconduct within the meaning of Rule 3 of the A.P.
Civil Services (Conduct) Rules, 1964, and the charged
employee is, therefore, liable for departmental action.
Accordingly, I hold on the point that the article of
charge framed against the charged employee is
proved and the charged employee is, therefore, liable
for departmental action as per C.C.A. Rules."
On the report of the above said Enquiry Officer, the respondent
No.1 District Judge, Khammam, issued a final show cause notice
in Proc. Order Dis.No.1201/ADM/DCK, informing the petitioner as
to why she should not be terminated from services as per the
Enquiry Report of the Enquiry Officer. The Article of charge proved
by the Enquiry Officer is as follows:
Article of charge:
"That the Principal Junior Civil Judge, Khammam,
has passed a judgment and Decree in O.S.No.1108 of
1999 on 06.05.2005 declaring that; you, Smt. M.
Jayasri is not the legally wedded wife of the
deceased employee, M.V.P.N. Balaji. In view of death
of the deceased employee, formerly Process Server in
Junior Civil Judge's Court, Madhira, who died in
harness, you have been appointed as attender on
compassionate grounds. Therefore, your acts
amounts to misconduct and mischief and hence, you
are liable for Departmental action."
It further said as follows:
"In view of the above said reasons and
circumstances, while enclosing the copy of the
Enquiry Officer's report herewith, Smt. M. Jayasri,
Process Server, Prl. Senior Civil Judge's Court,
Kothagudem, is called upon to show cause within (15)
days from the date of receipt of this notice, as to why
she should not be terminated from services, failing
which, the matter will be proceeded in accordance
with CCA Rules."
Against the said final show-cause notice, the petitioner has given
her explanation through proper channel as under:
"Decree did not direct your honour (District Court,
Khammam) to implement the direction by the same
time there are no such directions in the decree, as
such, in absence of any directions though the (PW-1)
decree-holder had a right to execute the decree
instead of that, approaching your honour (District
Court, Khammam), requesting to implement the
directions of the decree though there no such
directions is against the execution proceedings. It is
submitted that as there are no such directions, the
PW.1 (decree-holder) approached the Hon'ble District
Court, Khamma, for implementation of decree and the
action of the Hon'ble District Court in initiation of the
enquiry proceedings are against the principles of
natural justice and equity and C.P.C. (execution
proceedings) thereby the Hon'ble District Court chosen
to misuse its power. It is submitted that in such a
case, there is every possibility to approach the District
Court for recovery of money decrees passed against
the judicial employees by way of representation by
decree-holders."
Accordingly, she requested the concerned authorities to take into
account her length of service, i.e. from 1989 and to drop further
proceedings in the interest of justice and equity.
7. Learned counsel for the petitioner further submits that the
first respondent, being not satisfied with the explanation submitted
by the petitioner, has passed the impugned proceedings Order
C.DIS.No.62/ADM/DCK/Dt.11.08.2014 by observing as follows:
"In these circumstances, the contentions of the
delinquent employee in the Written Statement will not
hold the waters, more in particular, as referred by
supra, even before issuing the Orders of appointment
to delinquent, a Civil Suit is already filed and the
District Judge, Khammam, who is figured as
defendant No.3 has received the summons. Thus,
even before giving the appointment orders, summons
are also received by the District Court. The enquiry
conducted by Junior Civil Judge, Madhira, will not
give any right to the delinquent employee, because by
that time, the mother of the deceased had no
knowledge about application of delinquent. Further,
no notice was issued to the mother of the deceased
during the course of that enquiry by the learned
Junior Civil Judge, Madhira, or, by the District Judge,
Khammam, at that stage. It is not a fact finding
enquiry; and that Enquiry will not give any legal
status to the delinquent, more in particular, when
there is a decree passed by the competent Civil Court.
In these circumstances, certainly, the appointment
orders, if any, issued are all subject to the result of
Civil Suit, though, it is not specifically mentioned in
the Appointment Order. In my humble opinion, there
is no need of mentioning those aspects. Because, the
delinquent employee is also one of the parties to the
suit as defendant No.1, the District Judge,
Khammam, is defendant No.3. So also, the
contentions raised in the Written Statement will not
hold any water. So, the fact remains, the act of
mischief and misconduct on the part of Delinquent is
very much established and proved, in securing the
job, on compassionate grounds. When the
appointment of delinquent itself is not legal, certainly,
she is not entitled to continue in the Service. It is
nothing but depriving the rights of genuine legal heir
and it in a way giving a helping hand to the
delinquent to claim the death benefits of
Mr.M.V.P.N.Balaji, depriving the genuine legal heirs.
Thus, considering the facts and circumstances of the
case, the delinquent is not entitled to continue in
service. Hence, she is terminated from the service
forthwith. Since the delinquent worked for a
considerable period, I am not interested to order
recovery of the salary and other benefits received by
her during the period of her service. The other
departmental enquiries any pending against the
delinquent will be considered, on their own basis."
8. Questioning the same, the present Writ Petition is filed.
9. On 14.06.2022, learned counsel for respondent No.3
submitted that during pendency of the Writ Petition, the
respondent No.3 died and family members have no interest to
contest this matter.
10. The first respondent filed counter. Learned counsel for
respondent No.1 brought to the notice of this Court that the suit in
O.S.No.1108 of 1999 on the file of the Principal Junior Civil Judge,
Madhira, was decreed ex-parte on 06.05.2005 with an observation
as mentioned in para 9 of the petition and extract of the same is as
under:
"....Plaintiff denies the marriage of her son Balaji with
the first defendant. In this back drop the burden lies
on first defendant Jayasri to prove her marriage with
the deceased Balaji. Not a single piece of evidence is
adduced to prove the marriage of first defendant with
deceased Balaji. There is no material on record to
believe the first defendant Jayasri is legally wedded
wife of Balaji, photographs and marriage certificate is
necessary to prove the marriage of D.1. But, they
were not filed...
I answer this issue in favour of the plaintiff."
11. Learned counsel for the respondent No.1 further contended
that charges were also proved, and based on the enquiry report,
the first respondent rightly passed the proceedings Order
C.DIS.No.62/ADM/DCK dated 11.08.2014 and there is no illegality
in the termination order. There are no merits in the contentions of
the petitioner. All the procedural aspects have been complied with
and cogent reasons support the order. As such, the Writ Petition is
not maintainable and prayed to dismiss the same in the interest of
justice.
12. Learned counsel for the petitioner submitted that when the
application was made by the petitioner for compassionate
appointment, forthwith enquiry was conducted by Junior Civil
Judge, Madhira, about the genuineness of the marriage of the
petitioner. The Enquiry Officer also held that the contents of Ex.P5,
application dated 03.08.1998 submitted by late M.V.P.N. Balaji
revealed that he divorced his first wife Janaki and requested to
delete her name in the Service Register and subsequently, add the
name of M. Jayasri. Upon receiving the same, on 31.08.1998, the
Munsiff Magistrate, Madhira, endorsed as under:
"The individual is directed to submit at the time of
whenever required."
13. Learned counsel for the petitioner further submitted that in
the judgment and decree in O.S.No.1108 of 1999 dated
06.05.2005, nothing was mentioned with regard to appointment of
the petitioner or legal heirs. The subject matter of said suit was
only for declaration of respondent No.3 as sole surviving legal heir
and no relief was sought for the declaration of the petitioner's
marriage with the deceased Balaji as void, nor was any relief
sought with regard to the status of the petitioner with the deceased
Balaji. Therefore, the findings of the 1st respondent that the Civil
Court held that the petitioner is not a legally wedded wife is
incorrect and contrary to the evidence placed on record. The 1st
respondent erroneously observed that even before giving the
appointment order, the summons was received, and a suit was
already filed. Since the petitioner made an application prior to the
suit itself, the District Judge called for a report from the Junior
Civil Judge, Madhira, regarding the genuineness of the marriage
and for consideration of the petitioner on compassionate grounds.
14. Learned counsel for the petitioner further submitted that the
Junior Civil Judge, Madhira, submitted a report on 28.10.1999
wherein all the parties were examined, including the petitioner and
her parents, respondent No.3 and her husband. The same was
submitted prior to the filing of the said suit and the appointment
order was given to the petitioner on 21.12.1999, prior to the receipt
of summons in the suit. The legal heir certificate was obtained on
10.08.1999. Since the suit was filed on 14.12.1999, the question
of receiving a summons prior to the appointment order, does not
arise. Hence, this finding is also incorrect and baseless.
15. Learned counsel for the petitioner further contended that the
Disciplinary authority's finding that no notice was issued to the
respondent No.3 is totally incorrect since the fact remains that the
respondent No.3 has participated in the enquiry caused by the
Junior Civil Judge, which is evident from the report. Based on
these findings, even without discussing the material document
submitted by the petitioner and without even looking into the
enquiry report dated 28.10.1999 wherein all the materials were
placed, the impugned proceedings dated 11.08.2014 was issued.
Hence, the same is wholly unsustainable for non-consideration of
material on record and has been mechanically issued.
Accordingly, prayed to set aside the proceeding dated 11.08.2014
and allow the Writ Petition.
16. This Court, having considered the rival submissions made by
the learned counsel for the respective parties, is of the considered
view, that as rightly contended by the learned Senior Counsel
appearing for the petitioner, the subject matter of O.S.No.1108 of
1999 was only for declaration of respondent No.3 as the sole
surviving legal heir and for consequential injunction, which was
decreed. The decree is certainly not a directive to the respondent
authorities to interfere with the petitioner's compassionate
employment, which was granted by following the due process and
pursuant to the conduct of a detailed enquiry. There is no direction
in the decree with regard to the implementation of the order of the
Court, and there is no direction at all to the authorities concerned.
17. Surprisingly, based on the said judgment and decree in
O.S.No.1108 of 1999, the Disciplinary authority has taken action
against the petitioner even though a preliminary inquiry was
conducted regarding the genuineness of the petitioner's marriage
with the deceased Balaji. The preliminary inquiry sufficiently
proved the genuineness of the petitioner's case. Thereafter, the
respondent authorities appointed the petitioner on compassionate
ground only based on the enquiry report. However, merely based
on the judgment and decree in O.S. No.1108 of 1999, the
Disciplinary authorities have taken a "U-Turn" and
consequentially, issued the impugned Proceedings dated
11.08.2014.
18. The Hon'ble Supreme Court in State of Chhattisgarh and
others Vs. Dhirjo Kumar Sengar 1, elaborately discussed on a
similar issue, wherein it was held as under:
Para No.22:
"A succession certificate can be granted in favour of
any person. It may be granted to an heir or a
nominee. By reason of grant of such certificate, a
person in whose favour succession certificate is
granted becomes a trustee to distribute the amount
payable to the deceased to his heirs and legal
representatives. He does not derive any right
thereunder. The succession certificate merely enabled
him to collect the dues of the deceased. No status was
conferred on him thereby. It did not prove any
relationship between the deceased and the applicant.
Even otherwise, the respondent and his father were
entitled to the said dues being his heirs and legal
representatives."
The above judgment clearly emphasizes that the mere issue of a
succession certificate does not confer any right or status to the
applicant of such certificate, and neither does it prove any
relationship between the applicant and the deceased.
19. In the present case, the suit was filed by the 3rd respondent
for declaration of legal heir and for consequential injunction. To
such extent, the suit was decreed and the 3rd respondent was
declared as the legal heir of the deceased. Merely because of the
declaration of the 3rd respondent as the legal heir, the same does
not confer any right thereunder, as held in the judgment of the
(2009) 13 SCC 600
Hon'ble Apex Court cited above. The grant of a legal heir certificate
to the 3rd respondent does not disentitle the petitioner from her
rightful claim for compassionate appointment. No status was
conferred on the 3rd respondent, and it did not prove any
relationship between the deceased and the 3rd respondent.
20. It is also pertinent to observe that the petitioner was
appointed on compassionate grounds on 21.12.1999.
Consequently, after a lapse of several years, the 3rd respondent
made a complaint. Knowing the facts, the 3rd respondent filed a
suit to declare her as a legal heir of the deceased Balaji, which was
decreed. Based on the said decree, the respondent authorities
arrived at an erroneous assumption that the petitioner was not the
legally wedded wife of the deceased Balaji, which was not even the
subject matter of the decree. Moreover, such a relief was not
sought for by the 3rd respondent in her suit. Despite the same, the
respondent authorities arbitrarily terminated the petitioner from
service. When the petitioner applied for compassionate
appointment, an enquiry was conducted forthwith about the
genuineness of the petitioner's case by the Junior Civil Judge,
Madhira. The Enquiry Officer also held that the contents of Ex.P5,
the application dated 03.08.1998 given by late M.V.P.N. Balaji
reveal that he divorced his first wife Janaki and requested to delete
her name in the Service Register and add the name of M.Jayasri,
and the same was endorsed by the Munsiff Magistrate, Madhira on
31.08.1998. This itself is enough to believe that the petitioner is
the 2nd wife of the deceased Balaji, and that the petitioner has a
genuine case.
21. It is also pertinent to mention that the petitioner, at the time
of her appointment on compassionate grounds, produced the
marriage declaration certificate from the concerned temple, apart
from the marriage photographs. The genuineness of the marriage
was the subject matter of a detailed enquiry, and the petitioner was
appointed on compassionate grounds only based on the enquiry
report. The object underlying a provision for grant of
compassionate employment is to enable the family of the deceased
employee to tide over the sudden crisis resulting due to death of
the breadwinner which has left the family in penury and without
any means of livelihood. Hence, the petitioner cannot be deprived
of her employment on compassionate grounds, when she has
proved her case beyond all reasonable doubts. Therefore, the
impugned proceedings dated 11.08.2014 is liable to be set-aside.
The matter may be viewed from another angle. The Article of
Charge against the petitioner reads thus:
"That the Principal Junior Civil
Judge, Khammam has passed a
Judgment and Decree in
O.S.No.1108 of 1999 on 05.06.2005
declaring that; you Smt.M.Jayasri
is not the legally wedded wife of
the deceased employee
M.V.P.N.Balaji. In view of death of
the deceased, formerly Process
Server in Junior Civil Judge's Court,
Madhira, who died in harness, you
have been appointed as attender on
Compassionate Grounds. Therefore,
your acts amounts to mis-conduct
and mischief and hence, you are
liable for Departmental action."
(Emphasis Supplied)
22. At the first place, the Charge framed is that in O.S.No.1108
of 1999, the Court 'declared' that petitioner is not the legally
wedded wife of the deceased employee. In our view, the Court
neither gave any such declaration nor it was within the province of
the Court to confer any such status, while deciding the application
under Section 372 of the Indian Succession Act, 1925. Secondly,
an employee can be subjected to disciplinary proceeding, provided
he has committed any mis-conduct. When petitioner preferred her
application for compassionate appointment, the Department
conducted enquiry, verified genuineness of the documents and
after having satisfied about factum of marriage, appointed the
petitioner. It is not the case of the disciplinary authority that
petitioner procured employment by producing fabricated
documents. Indeed, the finding of the preliminary enquiry on the
strength of which, the petitioner was held to be married wife of the
deceased shows that marriage was held to be genuine and proved.
Thus, very foundation on the strength of which edifice of Article of
Charge aforesaid is framed collapses and cannot sustain judicial
scrutiny. Apart from this, it is trite that 'misconduct' must be
defined with accuracy and precision. It is profitable to consider
the legal journey in this regard.
23. In A.L.Kaira v. Project & Equipment Corpn 2, the Hon'ble
Supreme Court held as under:
"22. ...What in a given context would
constitute conduct unbecoming of a
public servant to be treated as
misconduct would expose a grey area
not amenable to objective evaluation.
Where misconduct when proved entails
penal consequences, it is obligatory on
the employer to specify and if necessary
define it with precision and accuracy so
that any ex post facto interpretation of
some incident may not be camouflaged
as misconduct..."
24. In Glaxo Laboratories (1) Ltd v. Presiding Officer, Labour
Court, Meerut 3, it was held that everything which is required to be
prescribed has to be prescribed with precision and no argument
can be entertained that something not prescribed can yet be taken
into account as varying what is prescribed. In short, it cannot be
left to the vagaries of management to say ex post facto that some
(1984) 3 SCC 316
(1984)1 SCC 1
acts of omission or commission nowhere found to be enumerated in
the relevant Standing Order is nonetheless a misconduct not
strictly falling within the enumerated misconduct in the relevant
Standing Order but yet a misconduct for the purpose of imposing a
penalty.
25. In Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal
Corpn. 4, the Hon'ble Supreme Court held as under:
"4. ...This proposition appears to us to
starting because even though either
under the Certified Standing Orders or
Service regulations; it is necessary for
the employer to prescribe what would be
the misconduct so that the
workman/employee knows the pitfalls
he should guard against. If after
undergoing the elaborate exercise of
enumerating misconduct, it is left to the
unbridled discretion of the employer to
dub any misconduct, the workman will
be on tenterhooks and he will be
punished by ex post facto determination
by the employer. The legal proposition
as stated by the High Court would have
necessitated in-depthexamination, but
for a recent decision of this Court in
Glaxo Laboratories v. Presiding Officer,
Labour Court, Meerut [(1984) 1 SCC 1]
in which this Court specifically repelled
an identical contention advanced by Mr
Shanti Bhushan, learned Counsel who
appeared for the employer in that case
observing as under:
(1985)2 SCC 35
"...But the extracted
observation cannot be elevated
to a proposition of law that
some misconduct neither
defined nor enumerated and
which may be believed by the
employer to be misconduct ex
post facto would expose the
workman to a penalty".
26. In the said judgment, it is also held as under:
"4.... It is thus well-settled that unless
either in the Certified Standing Order or
in the service regulations an act or
omission is prescribed as misconduct, it
is not open to the employer to fish out
some conduct as misconduct and
punish the workman even though the
alleged misconduct would not be
comprehended in any of the enumerated
misconducts."
27. Common thread of principle flowing from these judgments is
that a particular conduct must be prescribed as a 'mis-conduct'.
The employer on his whims cannot treat any conduct as a 'mis-
conduct'. In the departmental enquiry, it was neither the charge
against the petitioner that she procured employment by fraud or
fabrication of documents, nor any finding was given by learned
Enquiry Officer that previous report of Senior Civil Judge giving
stamp of approval to the genuineness of marriage is faulty. Thus,
in our opinion, the Article of Charge so framed does not constitute
'mis-conduct'.
28. We wonder that in a matter of this nature, which deals with
employee of a Court, the disciplinary authority a judicial officer has
mechanically framed the Article of Charge which does not find
support from judgment and decree in O.S.No.1108 of 1999. Lastly,
it is worth remembering that the petitioner was appointed on
21.12.1999 and after considerable long time, the judgment and
decree aforesaid was passed. Thus, there is neither
misrepresentation on the part of the petitioner nor she committed
any misconduct. For this reason also, she is entitled to get full
back wages. The petitioner was all along willing to perform her
duties, but, was deprived to do so for the reasons solely
attributable to the Department. Thus, as per principle laid down in
Union of India v. K.Janaki Raman 5, and in Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya 6, wherein
it was held that in cases of wrongful termination of service,
reinstatement with continuity of service and back wages is the
normal rule, the petitioner deserves full back wages.
29. Accordingly, the Writ Petition is allowed by setting aside the
proceedings of the 1st respondent in C.Dis.No.62/ADM/DCK, dated
11.08.2014 and the respondents are directed to re-instate the
petitioner into service and pay all the back wages from the date of
AIR 1991 SC 2010
(2013)10 SCC 324
removal of the petitioner till the date of reinstatement, in
accordance with law. No costs.
Interlocutory applications, if any pending, shall also stand
closed.
_____________
Sujoy Paul, J
_______________________________
Namavarapu Rajeshwar Rao, J
Date: 12.08.2024
Bdr.
