Rajesh Kumar v. Sushil Kumar

CORAM: HON’BLE MR. JUSTICE PERMOD KOHLI Present: Mr. V.K. Shukla, Advocate for the petitioner. Ms. Kavita Arora, AAG, Punjab PERMOD KOHLI, J. The order impugned being common in these two writ petitions so the same were heard and are being disposed of by this common judgment. Vide the impugned order dated 12.11.2008 passed by the Director and Secretary, Punjab Govt., Rural Development & Panchayats Department, the services of the petitioners Sushil Kumar and Rajesh Kumar have been terminated on the ground that their initial appointment were without inviting applications or sponsorships from the Employment Exchange and thus, illegal. Petitioner Sushil Kumar was appointed as Clerk by respondent No.3, Panchayat Samiti, Ferozepur by passing a resolution CWP No.2807 of 2009 & CWP No.3186 of 2009 - 2- No.5 dated 28.02.1997, whereas petitioner Rajesh Kumar was appointed by the Panchayat Samiti, Ferozepur as Peon vide resolution No.8 dated 16.03.1998. It is alleged that they were appointed on regular basis, though in the appointment letter of Rajesh Kumar it appears that he was appointed on temporary basis against a vacant post in the regular pay-scales. These petitioners were terminated vide order dated 25.10.2001. Termination was challenged by both the petitioners in CWP No.18460 of 2001 before this Court. The writ petition was allowed vide order dated 13.08.2002. Order of termination was set aside and respondents were allowed to proceed against the petitioners after affording opportunity of being heard in the light of the judgment dated 13.12.2001 passed in CWP No.17780 of 2001 titled as Gurmukh Singh Vs. Sate of Punjab. In writ petition of Gurmukh Singh Vs. State of Punjab, a Division Bench of this court made following observations: “It is not disputed by the learned counsel for the respondents that the aforesaid decision has been taken at the highest level without first affording an opportunity of hearing to the petitioner. It is also not disputed that the aforesaid order would be binding on the other respondents. Since the instant order has adverse consequences on the petitioner and the same has been passed without affording an opportunity of hearing to the petitioner, it is evident that no effective opportunity of hearing can be afforded by the other respondents who CWP No.2807 of 2009 & CWP No.3186 of 2009 - 3- are admittedly under the supervision and control of the Department of Rural Development and Panchayats which has issued the impugned order dated October 25, 2001(extracted above). Admittedly, the order has been passed in violation of the rules of natural justice without affording a reasonable opportunity of hearing to the petitioner. In the aforesaid situation, the order being in clear violation of law is hereby set aside. Liberty is, however, granted to the respondents to pass any fresh order as may be considered appropriate in accordance with law after affording an opportunity of hearing to the concerned persons. Disposed of accordingly. December 13, 2001 Sd/- J.S. Khehar, Judge Sd/- Jasbir Singh, Judge” Petitioners were accordingly reinstated. It is relevant to notice here that even when the writ petition was filed by the petitioners, their termination was stayed by interim order and thus they continued to remain in service even during the pendency of the writ petition. It is admitted case of the parties that after their appointment, the petitioners were released all increments and also contributed towards local found accounts maintained for the employees of Samiti. It appears that Examiner, Local Fund Accounts, Punjab, Chandigarh raised certain objections vide letter No.533 dated 22.03.2006 with regard to the services of the CWP No.2807 of 2009 & CWP No.3186 of 2009 - 4- petitioners. Petitioners were called by respondent No.3 on

04.01.2008. The petitioners gave their explanation to respondent No.3. Accordingly, respondent No.3 vide its letter No.142 dated

08.01.2008 addressed to respondent No.2 recommended that termination of services of these employees at this stage is not appropriate. Despite these recommendations, respondent No.2 has passed the impugned order. Petitioners have challenged the impugned order primarily on two grounds i) the same has been passed in gross violation of principle of natural justice; and ii) by the incompetent authority. Admittedly, the petitioners are working since 1997 and 1998 respectively. They were appointed against available vacancies and have been placed in regular pay-scales and released the annual increments. Earlier their termination order on the same ground was set aside with liberty to the respondents to pass afresh orders by observing the principle of natural justice. Despite the direction of the High Court no effective opportunity was afforded to the petitioners by respondent No.2 before passing the impugned order of termination. Neither any show cause notice was issued nor any reply was sought. Personal hearing said to be given by respondent No.3 has in fact no opportunity as the petitioners were neither served any chargesheet nor communicated the grounds, seeking their explanation/reply. There has been a gross violation of principle of CWP No.2807 of 2009 & CWP No.3186 of 2009 - 5- natural justice. The petitioners were terminated on the same ground on which it was set aside earlier in CWP No.18460 of 2001. Otherwise also it is admitted case of the parties that the petitioners were appointed by the Panchayat Samiti i.e. respondent No.3, which is an independenty body whereas the termination order has been passed by respondent No.2. No rule or law has been placed on record or brought to the notice of the Court as to how respondent No.2 has acquired the competence or authority to terminate the services of the employees of Panchayat Samiti. In view of above, these writ petitions are allowed and termination order is set aside. However, the competent authority shall have the liberty to pass fresh orders, if so desired, in accordance with law and in consonance with the principle of natural justice.

29.06.2010 vcgarg (PERMOD KOHLI) JUDGE