MASRI HARIDAS Vs. MANAVADAR NAGAR PANCHAYAT

JUDGEMENT

(1.) This Special Civil Application was filed by three petitioners initially against the Manavadar Nagar Panchayat on 3.7.1996. Rule was issued in this case on 25.7.1996 after the issue of the notice on 11.7.1996. An affidavit-in-reply dated 27.8.1996 was filed by the Municipal Borough, Manavadar. Since the copy of the termination order with regard to petitioner No. 3 only had been filed, an objection was taken in the further affidavit-in-reply dated 8.5.1997 that there is no challenge to the retrenchment of petitioners No. 1 and 2. Thereafter, a further affidavit-in-reply dated 24.7.1997 was filed and an objection was taken that the Municipal Borough, Manavadar had not been impleaded as a party. It appears that amendments were sought and granted on 16.1.1997 and on 5.5.1997 to meet the objections and a ground was also included that the impugned order was penal in nature as it had been passed on the ground of the petitioners remaining absent and that the same had been passed without holding any inquiry and without giving any opportunity of hearing.

(2.) Petitioners came with the case that they were appointed on 11.11.1980, 23.4.1982 and 23.6.1982 as watchman, driver and helper respectively. On 28.3.1983 several other daily wager employees, who were working in the office of the Nagar Panchayat and some of them, who were junior to the petitioners, were regularised and these three petitioners were orally terminated on 31.5.1983. The petitioners challenged their termination by filing Special Civil Application No. 6112 of 1984. This Special Civil Application No. 6112 of 1984 was decided on 3.2.1994. This Special Civil Application was partly allowed and the action of the respondent Nagar Panchayat in terminating the services of the petitioners with effect from 31.5.1983 was set aside and the respondents were directed to reinstate the petitioners herein on their original posts with continuity of service and 50% backwages within six weeks from the date of the receipt of the Writ. The respondents were further directed to pay arrears due to the petitioners within three weeks from the date of the reinstatement and Rule was made absolute to this extent by allowing the petition in part. Thereafter, on 7.3.1994 their appointments were made on regular basis as watchman, driver and helper and they resumed their duties on regular basis as per the orders dated 7.3.1994. However, the respondents had preferred Letters Patent Appeal No. 415 ot 1995 and the Division Bench passed an ad interim order staying the relief with regard to the grant of backwages. On 30.11.1995 the respondents placed the petitioners as daily wagers instead of being regular employees. The petitioners again challenged the said action of being made daily wagers from regular employees through Special Civil Application No. 9230 of 1995 and on 19.4.1994 the High Court rejected petitioner's Special Civil Application and thus they were to be continued as daily wagers in terms of the order dated 30.11.1995 because their Special Civil Application No. 9230 of 1995 was rejected. However, the respondents stopped giving any work of them and they were rendered jobless on the ground of non availability of work. In this petition dated 24.6.1996 the grievance was raised in para 2.6 that the petitioners were not allowed to work on the ground that the respondents had no work to offer since about last one month i.e. May, 1996. It appears that in the mean time the orders had been passed on 12.4.1996 terminating their services and that order has also been challenged. Without going into the other controversies, which have been raised, and without examining the contentions, which have been raised on behalf of the petitioners herein, this Special Civil Application may be decided on the sole ground that the orders dated 12.4.1996 have been passed against the three petitioners on the ground of their continued absence. It has been clearly held out and it is manifest from the contents of the orders that the allegation against the petitioners was that they were continuously absent since the month of February, 1996 without leave and, therefore, their services are terminated. Of course notice pay etc. has been paid but the fact remains that they have been terminated on the ground of continued absence and from the very language of the impunged orders the casual relationship between the absence constituting misconduct and the termination is clearly established. These termination orders are therefore per se stigmatic and are penal in nature. It is not disputed before this Court that these orders have been passed without holding any inquiry and without affording any opportunity to the petitioners. The orders are founded on the allegation of misconduct and the impugned orders are per se penal in nature and yet the minimum requirements of the principles of natural justice have not been followed so much so that even an action inspired notices had not been given to the petitioners before passing the impugned orders dated 12.4.1996. These impugned orders dated 12.4.1996 terminating the services of the petitioners, therefore, can not be sustained in the eye of law and the same deserve to be quashed and set aside.

(3.) On 12.8.1997 after arguing the matter, the learned counsel for the Municipal Borough sought time to consider the question of withdrawing the impugned orders of termination and to pass appropriate orders afresh in accordance with law. The time was granted but Ms. Mamta Vyas appearing on behalf of the respondents has now informed that the Municipal Borough was not prepared to withdraw these impugned orders.