Himachal Pradesh High Court
CWP/4497/2014 on 31 December 2016
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4497 of 2014 Date of decision: 31.12.2015.
Devinder Kumar
…Petitioner
Versus
State of HP & Ors
…Respondents
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No. For the Petitioner:
Mr.Vikas Rathore. Advocate.
For the Respondent: Ms.Meenakshi Sharma, Addl.AG.
Tarlok Singh Chauhan J.
This writ petition has been filed claiming therein the following substantive reliefs:
i) That the respondents may kindly be directed to re-engage the petitioner in the same capacity under which he was working since 2004 with all consequential benefits;
ii) That further the respondents may be directed to consider the case of the petitioner for grant in aid within time bound period.
2. The petitioner in the year 2004 was appointed as DPE on PTA basis in Government Senior Secondary School, Bhunter, District Kullu, HP. His case was thereafter recommended for regular appointment by the Principal of the school to Deputy Director of Higher Education vide Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
letter dated 14.6.2013. Such request was reiterated vide letter dated 26.7.2013. Thereafter, even the petitioner made similar request to the respondents, but to no avail. The services of the petitioner came to be orally terminated on 1.3.2013, hence this petition.
3. Respondents have opposed the petition by filing reply, wherein it is stated that services of the petitioner were terminated due to his weak performance. As per resolution No.2 dated 11.6.2012, the School Management Committee of the school had decided that the services of the teachers engaged by it on PTA fund will be terminated- removed immediately without any prior notice if their performance was not satisfactory.
I have heard the learned counsel for the parties and have gone through the records of the case.
4. The respondents have though set up a specific case that performance of the petitioner was not satisfactory which lead to orders of termination, but have failed to place on record any material which may suggest that prior to his oral termination, the petitioner had been put to notice regarding his poor performance or even asked to improve his performance. Thus in absence of any contemporaneous material on record which may be suggestive of the performance of the petitioner, this court is constrained to draw an adverse inference. That apart, the oral termination of the petitioner’s services is not only illegal, arbitrary, but is violative of the principles of natural justice and fair play.
5. Once it is not disputed that the order of termination passed against the petitioner has visited him with civil and evil consequences, then it is more than settled that this action should have been made in consonance with the rules of natural justice. It was not so much to act judicially, but to act fairly and reasonably and the procedure adopted should have been just, fair and reasonable. The principle of natural justice is an integral part of the guarantee of equality enshrined by Article 14 of the Constitution of India. Any action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes an arbitrary action.
6. It is equally settled that right to life enshrined under Article 21 of the Constitution includes right to livelihood. The order of termination of the service of an employee visits with civil consequences of jeopardizing not only his/her livelihood, but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee, fair play requires that a reasonable opportunity to put-forth his case is given to the employee. In the absence of any material which may even remotely suggest that the performance of the petitioner was either weak or not up to the mark, this court left with no other option, but to allow the petition.
7. Consequently the writ petition is allowed and the oral order of termination of the petitioner effected on 1.3.2013 is set aside and the respondents are directed to re-engage the petitioner forthwith in the same capacity as he had been working till the time of his illegal termination, with all consequential benefits.
8. The petition is allowed in the aforesaid terms, leaving the parties to bear the costs.
(Tarlok Singh Chauhan),
Judge. December 31, 2015
(sl)