SCA/3877/1989 of HARJIBHAI KHODABHAI RABARI Vs DIRECTOR on 19 December 1995

1. Whether Reporters of Local Papers may be allowed to see thejudgements?

2. To be referred to the Reporter or not?

3. Whether Their Lordships wish to see the fair copy of thejudgement?

4. Whether this case involves a substantial question of law asto the interpretation of the Constitution of India, 1950 of anyOrder made thereunder?

5. Whether it is to be circulated to the Civil Judge?

HARJIBHAI KHODABHAI RABARI vs DIRECTOR

Appearence: MR PB MAJMUDAR for Petitioner MR RJ OZA forRespondent No. 1

Coram : MR.JUSTICE S.K.KESHOTE

ORAL JUDGEMENT

the fixed pay filed this writ petition in which two fold prayershave been made. Firstly, it has been prayed that the order dated16.5.1989 at Annexure.C under which their services wereterminated may be quashed and set aside. Secondly it has beenprayed that the respondents may be directed to take them back inservice with continuity of service and absorb them on the post ofpeon. The learned counsel for the petitioner contended that thetermination of services of the petitioners have been made by wayof penalty. As their services were terminated by way of penaltyit was incumbent upon the respondents to give them a reasonableopportunity of defending their case. Neither the charge-sheetwas given nor any show cause notice was given and in a straightway, their services were terminated. It has next been contendedthat though the order of termination of services of thepetitioners is innocuous, the cause of termination of theirservices is the alleged misconduct as incorporated in the replyto the writ petition. The petitioners' services were terminatedfor their unsatisfactory work as well as unauthorised absence.The learned counsel for the petitioner contends that it is a caseof simple termination of services of the petitioners who wereonly part time employees . As it was termination simplicitorwithout any stigma, it was not incumbent upon the respondents tohold an inquiry and afford any opportunity of taking defence tothe petitioners. I have considered the rival contentions made byboth the parties. The petitioners were appointed as part timeemployees and they were required to perform the duties for aboutfour hours in a day. Even if the petitioners were part timeemployees, their services could not have been dispensed with inthe manner in which it has been done in the present case. Thepetitioner no.1 was appointed as part time employee in the year1976 and the petitioner no.2 was appointed in the year 1979.Their services as part time sweepers were terminated after morethan 13 and 10 years respectively. It is true that the order oftermination of services is innocuous but nevertheless from thereply to the writ pertition, it is clear that the ground fortermination of their services is of remaining absent by them fromduties. Remaining absent unauthorisedly is a serious misconductand in case the respondents considered that their services shouldbe dispensed with then it was incumbent upon them to follow thereasonable procedure and to comply with the principles of naturaljustice. In reply to the writ petition the respondents have comeup with a case that the work of the petitioners was foundunsatisfactory for which notices have been given to them and theyhave not even cared to give reply to the said notices andcontinued to indulge into the same activity of remaining onunauthorised absent. The services of the petitioners weretherefore, terminated. This reply of the respondents clinchesthe issue . The basic cause for termination of the services ofthe petitioners is their misconduct of remaining unauthorisedabsent from duty. In para 6 of the reply it has been furtherstated by the respondents that the petitioners were served with

the show cause notices dt. 22.5.87,23.11.87, 20.1.88, 23.4.88and 16.5.89 for remaining unauthorised absent from duty and thepetitioners have not taken care to submit their explanation. Ithas further been averred in the very para that becauseof theattitude of the petitioners, the administration suffered andconsidering all relevant aspects, the services of both thepetitioners were terminated by order at Annex.C collectively.Same averments have been reiterated by the respondents in para 9.Reading all these averments, it is clear that they support thecase of the petitioners that the basis of termination of servicesof the petitioners, is the alleged misconduct of remaining absentfrom duty unauthorisedly. The order of termination is dated16.5.89. The show cause notices, a reference of which has beenmade earlier are of the period of two years to one iyear earlierto the order of termination except the last show cause noticewhich is of 16..5.89. The last show cause notice was given on16.5.89 and on the very day the order or termination has beenpassed. If the matter is considered in the background of thesefactual matrix, the contention of respondents in the reply thatthe petitioners were afforded a reasonable opportunity to makesubmissions in the matter is not correct. It is a case where onthe same day the show cause notice was given and the order oftermination has been passed and even then the contention of therespondents is that they acted very reasonably, which cannot beaccepted. It is a case where in the garb of simplicitortermination of services, the petitioners have been penalised fortheir alleged misconduct of remaining absent unauthorisedly fromduty without holding any inquiry. In the rejoinder, thepetitioners have come up with a case that they have not beengiven any show cause notice but only 3 letters were given towhich the petitioners had explained satisfactorily. Theirexplanation was accepted and which clearly comes out from thefact that no action whatsoever has been taken against thepetitioners. None of the show cause notices has been produced bythe respondents along with this writ petition. What was thecontents thereof and what was the substance have been kept awayfrom the consideration of the court. The petitioners are lowpaid part-time employees working for the last more than 10 -13years and even if it is accepted for the sake of arguments thatthey remained on some occasion absent from duty without leave,the termination of their services cannot be said to be justified.The termination of services of the petitioners cannot be said tobe proportionate to the alleged guilt. More so when even theabsence period was not given in the reply to the petition exceptthe bald averments. The order of termination of the services ofthe petitioners is punitive in nature which has been passedwithout holding any inquiry and such the same cannot be allowedto stand. But at the same time, the petitioner, cannot be givenback wages. It is not the case of the petitioners that they werein full time employment of the of the respondents. Thepetitioners were part-time employee and has to work only for 4

hours in a day and as such it cannot be said that even during theperiod they were in service they were not elsewhere working also.In view of these facts and circumstances of the case I do notconsider it to be a fit case where the respondents should bedirected to give the petitioners back wages. Moreover, it is notthe case of the petitioners that during this interregnum period,they remained jobless. Looking to the nature of work whicch thepetitioners were doing while in the service of the respondents itis difficult to infer that during this interregnum period theywere not in gainful employment.

2. In the result, this writ petition is allowed in part.

Conclusion

The orders of termination of the services of the petitionersdated 16.5.89 Annexure.C are set aside. The respondents aredirected to reinstate the petitioners in service as part timeemployees forth with on the same terms and conditions but theyshall not be entitled to any backwages during the interregnumperiod. However, the petitioners shall be entitled to wages fromtoday. Rule is made absolute in the aforesaid terms. No orderas to costs.

for correction pl.see the original.