B DEENANATH Vs. VICE CHANCELLOR BERHAMPUR

JUDGEMENT

(1.) THE writ petitioner is a Junior Assistant in the office of the Berhampur University in the district of Ganjam. There was a selection test held by the University to fill tip sixteen, posts of Junior Assistant In which petitioner secured fourth position, whereas opposite parties 3 to 17 were placed below him. On receipt of the appointment order he joined his service on 11 -4 -1985. Previously the petitioner was serving as a salesman under Chatrapur Wholesale Cooperative Stores Ltd. The President of the said co -operative stores reported to the Registrar of the University alleging that during petitioner's salesmanship there being shortage of cash, to the tune of Rs. 28,113 -80 p. a case had been initiated for realisation of the same. On being so informed, the Ragistrar called for an explanation vide Annexure -3 as to why his services will not be terminated. On receipt of such notice the petitioner submitted his reply explaining that he was not liable for the alleged shortage. Despite such explanation the Registrar without holding any Inquiry and without giving any opportunity of hearing to the petitioner terminated his service vide his order Annexure -4. Against such order of termination petitioner made a representation to the authority, but the same did not yield any result. Subsequently the President of the said Co -operative Stores issued a no -objection certificate vide letter dated 19 -9 -1985, Annexure -6 to the Registrar of the University intimating that the society would have no objection if the petitioner was allowed to continue in service. There upon the petitioner was given appointment as per order dated 10 -10 -1985, Annexure -7. In the year 1991 a provisional gradation list, Annexure -B was prepared, wherein opposite parties 3 to 17 who were below the petitioner in the merit list of the Junior Assistants were shown as senior to him. He objected to the correctness of the gradation list, but the same was not needed to. When the, matter stood thus and without finalising the provisional gradation list, the authority promoted opposite parties 3 to 9 to the posts of Senior Assistants, ignoring his legitimate claim. He was treated as junior to opposite parties 3 to 17 because of break of service from 6 -7 -1985 till 6 -10 -1985, that is for the period he was kept out of service due to termination. He has, therefore, urged that termination of his service for the aforesaid period being illegal and unjust, he should be treated to be continuing in service and he should be declared as senior to opposite parties 3 to 17.

(2.) ON being noticed for hearing on the question of admission, opposite parties 1 and 2, namely, Vice -chancellor and the Registrar of the University jointly filed counter. As it appears from the record, opposite parties 5 and 17 though were served with the notices personally but they failed to appear and contest the proceeding. However, the remaining opposite parties jointly entered appearance and filed counter. The contentions raised by the contesting opposite parties being almost similar, it is not necessary to recapitulate the same separately. Their main contention is that the petitioner is junior to opposite parties 3 to 17 inasmuch as his services had been terminated by the time these opposite parties got appointment and later or, he being re -appointed joined his service as Junior Assistant and therefore, he cannot urge upon his employer to treat the period of termination as period of service and place him in the seniority list above opposite parties 3 to 17. In view of the contentions raised by the parties, the moot question for consideration is whether the petitioner should be held to be continuing in service from his initial appointment dated 11 -4 -1985 when admittedly he was out of employment of the University from 6 -7 -1985 to 9 -10 -1986, that is from the date of termination till reappointment. To answer this question it is necessary to find whether the order of termination can be held to be legal and in accordance with the principles of natural justice. It may be reiterated that on receipt of a letter from the President, the Chatrapur Wholesale Co -operative Stores Ltd., the Registrar of the University called for an explanation vide Annexure -3 from the petitioner as to why his services will not be terminated. Neither any charge was framed against him nor was he given any opportunity of hearing. The authority accepted the allegation of misappropriation as gospel truth and inflicted harsh punishment by putting an end to his service without giving him an opportunity of hearing.

(3.) It is a well -settled principle of law that no one shall be condemned unheard. This is a basic rule of natural justice which is required to be followed in judicial, quasi -judicial and administrative matters. This principle of natural justice came to be considered in great detail in the case of Menaka Gandhi v. Union of India : AIR 1978 SC 897, in which their Lordships referred to a series of decisions of which one was the case of State of Orissa v. Dr. (Miss) Binapani Dei : AIR 1967 SC 1269, wherein their Lordships at page 1271 observed thus :