SANGAMLAL SHUKLA Vs. STATE OF M.P.

JUDGEMENT

(1.) BY this writ petition filed under Articles 226 and 227 of the Constitution of India, petitioner prays for quashing of the order dated 1 -7 -1996 (Annexure P -15 whereby his service has been terminated w.e.f. 1 -7 -1996. Shorn of unnecessary details, facts giving rise to the present writ petition are that by order dated 30 -6 -1995 petitioner was appointed as Moharrir on daily wages temporarily at the rate fixed by the Collector. Petitioner was appointed by the Chairman of the Special Area Development Authority, Chitrakoot. The State Govt, in exercise of the powers conferred under section 76(1) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 dissolved various Special Area Development Authorities including the Special Area Development Authority (for short SADA), Chitrakoot, where the petitioner was appointed by order of the Chairman dated 30 -7 -1995. Thus the petitioner has been appointed by the Chairman of the SADA, Chitrakoot on 30 -6 -1995 whereas prior to the said date, the State Govt, had already directed, for dissolution of the Authority.

(2.) BY an order dated November 2, 1988 the Deputy Development Commissioner cancelled the appointment of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by -passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U.R. Lalit and Mr. A.K. Ganguli, learned Senior Advocates, appearing for the appellants have controverted these allegations and have stated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the Secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period. To buttress his submission, Shri Adhikari has further drawn my attention to the judgment of the Supreme Court in case of Basdeo Tiwari v. Sido Kanhu University and others, : (1998) 8 SCC 194 and my attention has been drawn to the paragraph -12 of the said judgment which reads as follows - -

(3.) THE said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, rules, statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or Regulations etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case, such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessary enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notices not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and conclusion which drawn in his absence, such a condition would not be just, fair or an event, he has to hold that in the provision, there is implied requirement of hearing for the purpose of arriving at a conclusion that an appointment shall be made to the Act, statute, rule or Regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how section 35(3) in this case will have to be read. Mr. S. Nagu, however, appearing on behalf of respondents No. 2 and 3 submits that as the appointment of the petitioner was by a person who was absolutely incompetent to make appointment, the appointment of the petitioner is honest in the eye of law and as such the principle of natural justice does not demand giving any notice or opportunity to the petitioner.