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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
:ORDER:
Union of India & Another
Vs.
Chandresh Kumar @ Chunni Lal
(D.B. Civil Writ Petition No.4380/2009)
DATE OF ORDER : February 17, 2010
PRESENT
HON'BLE MR. JUSTICE A.M. KAPADIA
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. Vineet Kumar Mathur for the petitioners.
Mr. Vijay Mehta for the respondent.
BY THE COURT : (Per Hon'ble Mr. Vyas, J.)
This writ petition has been filed by the Union of
India through the Secretary, Ministry of
Communication, Department of Posts, and, Assistant
Superintendent of Post Officer, Sub Division, Kankroli
(Rajsamand), in which, the petitioners are challenging
the validity of order dated 20.03.2009 passed by the
Central Administrative Tribunal, Jodhpur Bench,
Jodhpur, by which, the Original Application filed by
respondent Chandresh Kumar @ Chunni Lal against his
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termination order dated 28.03.2007 was allowed by the
Tribunal. The main contention of learned counsel for
the petitioners is that the order of the learned Tribunal
is erroneous because the services of respondent was
terminated on the ground that incompetent authority
had offered appointment to the respondent-applicant
under the relaxation of recruitment rules, therefore,
order of appointment issued by the said officer is ab
initio null and void. Further, it is argued that the CRC
rejected the case of the applicant for compassionate
appointment on 15.09.2005 and the same was
communicated to the respondent on 14.10.2005,
against which, Original Application was preferred but
the same was dismissed as pre-mature.
Learned counsel for the petitioners further
contended that mention of Rule 6 of the earlier rules
does not vitiate the order as provisions of Rule 8 are
identical. Therefore, a patent illegality has been
committed by the learned Tribunal while quashing the
order of termination dated 28.03.2007 and, further, in
passing order for reinstatement in service with all
consequential benefits.
Per contra, learned counsel appearing for
respondent Chandresh Kumar @ Chunni Lal vehemently
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argued that the order impugned has been passed while
exercising power provided under Rule 6 of the G.D.S.
(Conduct & Service) Rules; but, upon perusal of said
Rule 6 (Rule 8 of the new Rules), it appears that
services cannot be terminated under old Rule 6 and
new Rule 8 if the employee has worked for more than
three years.
It is also argued that before passing of the order
of termination, no opportunity of hearing was given and
no reasons were assigned in the order for terminating
the services of respondent-applicant. Therefore, the
learned Tribunal, while following the earlier decision
rendered in the case of Dinesh Chandra Vyas Vs. Union
of India, in which, Rule 6 and new Rule 8 were
considered, has rightly allowed the original application
of the respondent-applicant, in which, there is no error
apparent. Hence, this writ petition deserves to be
dismissed.
We have heard learned counsel for the parties.
Upon perusal of the termination order of the
applicant, it appears that the said order was passed
while exercising power under proviso to Rule 6(b) and
note below Rule 6 (b) of the G.D.S. (Conduct & Service)
Rules, 1964, which was subsequently amended and new
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Rule 8 came into force. For the sake of convenience,
both Rule 6 of the old Rules and Rule 8 of the new
Rules are re-produced below :
EDA (Conduct & Service) Rules, 1964
“6.Termination of Services.-(a) The
services of an employee who has not
already rendered more than three years’
continuous service from the date of his
appointment shall be liable to termination
at any time by a notice in writing given
either by the employee to the appointing
authority or by the appointing authority to
the employee;
(b) The period of such notice shall be one
month :
Provided that the service of any
such employee may be terminated
forthwith and on such termination, the
employee shall be entitled to claim a sum
equivalent to the amount of his basic
allowance plus Dearness Allowance for the
period of the notice at the same rates at
which he was drawing them immediately
before the termination of his services, or,
as the case may be, for the period by
which such notice falls short of one
month.
NOTE.-Where the intended effect of such
termination has to be immediate, it
should be mentioned that one month’s
basic allowance plus Dearness Allwance is
being remitted to the ED Agent in lieu of
the notice of one month through money
order.”
GDS Conduct & Employment) Rules, 2001
“8.Termination of Employment.-(1)
The employment of a Sevak who has not
already rendered more than three years’
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continuous employment from the date of
his appointment shall be liable to
termination at any time by a notice in
writing given either by the Sevak to the
Appointing Authority or by the Appointing
Authority to the Sevak;
(2) The period of such notice shall be one
month:
Provided that the employment of
any such Sevak may be terminated
forthwith and on such termination, the
Sevak shall be entitled to claim a sum
equivalent to the amount of Basic Time
Related Continuity Allowance plus
Dearness Allowance as admissible for the
period of notice at the same rates at
which he was drawing them immediately
before the termination of his employment,
or, as the case may be, for the period by
which such notice falls short of one
month.
NOTE.-Where the intended effect of such
termination has to be immediate, it should
be mentioned that one month’s Time
Related Continuity Allowance plus
Dearness Allowance as admissible is being
remitted to the Sevak in lieu of notice of
one month through money order.”
Upon perusal of Rule 8, it is obvious that the
employment of a Sevak who has not already rendered
three years’ continuous employment from the date of
his first appointment can be terminated at any time by
a notice in writing given either by Sevak to the
appointing authority or by the appointing authority to
the Sevak. Here, in this case, admittedly, the
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respondent was appointed on 03.01.2001 and
termination order was passed on 28.03.2007, which is
after three years, therefore, the learned Tribunal
passed the following order :
“10. Coming to the facts of this case, we
find that the services of the applicant has
been terminated after more than 3 years.
This could not have been done by invoking
the powers mentioned in the termination
order. The impugned order is therefore
quashed and set aside. The applicant
shall be reinstated in service and will be
entitled to consequential benefits. This
order shall not stand in the way of
respondents taking action under other
provisions of the Rules. The order
regarding reinstatement shall be passed
as expeditiously as possible and preferably
within one month of the receipt of the
order. No costs. Thus, this O.A. Is
disposed off”
We have perused the judgment impugned. In
our opinion, the order passed by the learned Tribunal is
perfectly in consoance with the provisions of law in view
of the fact that before passing the order impugned no
opportunity of hearing was given to the respondent-
applicant which is mandatory in view of the judgment of
the Hon’ble Supreme Court rendered in the case of D.K.
Yadav Vs. J.M.A. Industries Ltd., 1993 SCC (L&S)
723, in which, the Hon’ble Supreme Court has
expressly laid down in para 9 of the judgment as
follows :
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“9. It is a fundamental rule of law
that no decision must be taken which
will affect the right of any person
without first being informed of the case
and giving him/her an opportunity of
putting forward his/her case. An order
involving civil consequences must be
made consistently with the rules of
natural justice. In Mohinder Singh Gill
v. Chief Election Commissioner the
Constitution Bench held that ‘civil
consequences’ covers infraction of not
merely property or personal right but
of civil liberties, material deprivations
and non-pecuniary damages. In its
comprehensive connotation every thing
that affects a citizen in his civil life
inflicts a civil consequence. Black’s
Law Dictionary, 4th edn., page 1487
defined civil rights are such as belong
to every citizen of the state or
country … they include … rights
capable of being enforced or redressed
in a civil action ….. In State of Orissa
v. (Miss) Binapani Dei this Court held
that even an administrative order
which involves civil consequences must
be made consistently with the rules of
natural justice. The person concerned
must be informed of the case, the
evidence in support thereof supplied
and must be given a fair opportunity to
meet the case before an adverse
decision is taken. Since no such
opportunity was given it was held that
superannuation was in violation of
principles of natural justice.”
In our opinion, the learned Tribunal has not committed
any error while allowing the original application filed by
respondent before the Tribunal, therefore, there is no
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force in this writ petition. Hence, this writ petition is
dismissed.
(Gopal Krishan Vyas) J. (A.M. Kapadia) J.
Ojha, a.