RSA No.1613 of 1992. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1613 of 1992. Date of decision 20 .08.2010. Haryana State and another ...... Appellants. versus Dilbagh Singh ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Ajay Gulati, DAG, Haryana , for the appellants. Mr. Binderjit Singh, Advocate , for the respondent. K.C.PURI, J. This is an appeal directed by defendants-appellants against the judgment and decree dated 9.5.1992 passed by Shri R.C.Bansal, Additional District Judge, Karnal vide which the appeal preferred by the defendants-appellants against the judgment and decree dated 3.9.1991 passed by Smt Jai Shree Aggarwal, Subordinate Judge IInd Class, Karnal was dismissed. RSA No.1613 of 1992. 2 Briefly stated the case of the plaintiff is that he was appointed as driver vide order dated 11.1.1984. The Milk Commissioner, Haryana Panchkula passed the impugned order dated 25.9.1989 terminating his services as no longer required. The plaintiff alleged that the said order is illegal and against the rules of natural justice, mala-fide and has been passed without following the prescribed procedure. It has been alleged that Assistant Director, Animal Production Karnal had issued various memos during the period from 1.7.1989 to 16.8.1989 for initiating departmental action against the plaintiff on one account or the other. Ultimately, a report was made against him to the Milk Commissioner, who terminated his services by simply asserting that the services of the plaintiff were no longer required. The impugned order was passed by way of discrimination as juniors to the plaintiff were retained. The services of the plaintiff were terminated after more than five years. Hence the suit. The defendant-appellants contested the suit. In the written statement, they justified the termination of the plaintiff having been made according to the terms and conditions contained in his appointment letter. The plaintiff was appointed purely on adhoc basis and his services could be terminated without any notice and as such the impugned order passed by the Milk Commissioner, Haryana, Panchkula was legal and based on terms and conditions of the appointment order. It has been alleged that no junior driver to the plaintiff was working in the department and the termination was not as RSA No.1613 of 1992. 3 a measure of punishment. The suit was also contested on the basis of maintainability, jurisdiction, cause of action, want of notice under Section 80 CPC and suit being bad on account of nonjoinder of necessary parties. Following issues were framed :- 1. Whether the order dated 25.9.1989 passed by the Milk Commissioner, Haryana, Panchkula is illegal and not binding on the plaintiff?OPP 2. Whether the order dated 25.9.1989 was made without following the procedure laid down under rules 7 of Punishment and Appeal Rules, 1987 and Article 311 (2) of the Constitution of India ?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form ?OPD. 4. Whether the appointment of the plaintiff was on adhoc basis and is liable to be terminated without any notice and without assigning any reason ? OPD. 5. Whether no notice under section 80 C.P.C. was served upon the defendant and the suit is liable to be dismissed ?OPD. 6. Whether the court has no jurisdiction to try and entertain the present suit ?OPD 7. Whether the plaintiff has no cause of action against RSA No.1613 of 1992. 4 the defendant ?OPD. 8. Whether the plaintiff has concealed the material facts from the court ?OPD. 9. Whether the rule of estoppel applies against the plaintiff ?OPD. 10.Whether the suit for declaration without consequential relief is not maintainable ?OPD 11.Whether the suit is bad for non-joinder of necessary parties?OPD. The parties have led their respective evidence on the aforesaid issues. The learned trial Court after hearing the learned counsel for the parties decreed the suit of the plaintiff vide judgment and decree dated 3.9.1991. Feeling dissatisfied with the judgment dated 3.9.1991, the defendants preferred appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 9.5.1992. Still Feeling dissatisfied with the judgments and decrees passed by both the Courts below, the defendant-appellant has preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellant-State has submitted that plaintiff was working as a driver on adhoc basis, although, he remained RSA No.1613 of 1992. 5 in service for more than five years. However, the fact remains that his services were never regularized. He has simply applied through Employment Exchange. The Hon'ble Apex Court in authority Secretary, State of Karnataka and others vs. Umadevi and others 2006 (2) S.C.T. 462 has held that the Court cannot issue directions for regularization of the adhoc service. It would be against the Constitutional scheme of employment that every citizen has a right to apply for a regular post. The termination of the services of the plaintiff was not stigmatic, as observed in the impugned order. So in these circumstances, the judgments and decrees passed by both the Courts below are not sustainable. It is submitted that benefit of Article 311 of the Constitution of India cannot be made available to the adhoc employees. He has submitted that following substantial question of law has arisen :- Whether benefit under Article 311 of the Constitution of India can be made available to the adhoc employees whose services have been dispensed with by passing an innocuous order ? It is further submitted that according to the case of the plaintiff he remained absent for few days. So, he cannot be allowed to have the benefit of his own wrongs. In reply to the above noted submissions, learned counsel for the respondent has submitted that in the present case, five employees joined services under the same order, including the plaintiff. The two employees Ram Kumar, Umed Singh selected along with the plaintiff RSA No.1613 of 1992. 6 are still continuing in service. The 3rd employee Chattar Singh retired on 31.5.2008 from Rohtak on superannuation. The fourth employee Vidya Nand has not joined the services. The plaintiff was the 5th employee. The services of the plaintiff were not terminated simpliciter by an innocuous order. Although in the termination order, it is not mentioned that his services are being terminated due to absence from duty but his services were terminated by mentioning that his services are no-longer required. Both the Courts below have given a concurrent finding that order of termination has been passed under the camouflage of order of dismissal on misconduct and authority Anoop Jaiswal vs. Government of India and another AIR 1984 Supreme Court 636 has been relied upon. That being a finding of fact cannot be challenged in the regular second appeal. So far as authority Secretary, State of Karnataka and others vs. Umadevi and others' case (supra) is concerned that authority is not applicable to the facts of the preset case. The case of the plaintiff is not for the regularization of services but the challenge in the suit is for termination of the services by passing a simpliciter order of termination under the camouflage of misconduct. So, prayer has been made for dismissal of the appeal. It is further submitted that no reasonable opportunity to defend the plaintiff was given by the employer. Article 311(2) of the Constitution of India does not discriminate between adhoc employee or regular employee. The other three employees, who have joined RSA No.1613 of 1992. 7 along with the plaintiff, their services have been duly regularized and the same treatment should have been given to the plaintiff. I have given my thoughtful consideration to the rival submissions made by both the counsel for the parties. The Hon'ble Apex Court in authority Anoop Jaiswal's case (supra), which was relied upon by both the Courts below, held that where the order of discharge has been passed merely as a camouflage order of dismissal for mistake, reasonable opportunity should have been afforded to the employee and that order of termination cannot sustain. That being a finding of fact cannot be ordered to be re- agitated in the second appeal in view of Section 100 of the Code of Civil Procedure. So far as authority Secretary, State of Karnataka and others vs. Umadevi and others' case (supra) is concerned that authority relates to regularization of the adhoc employees. The Hon'ble Apex Court in that authority has held that there is a long queue for absorption for seeking public employment and back door entry in the Government services should not be allowed. Here, there is no such question raised before both the Courts below so that authority is not applicable to the facts of the present case. The question put forth in the present lis is whether after rendering the services of more than five years, his services could be terminated by passing a simpliciter order of termination, which according to both the Courts below, was an order of termination for misconduct. RSA No.1613 of 1992. 8 In authority The State of Bihar and others vs. Shiva Bhikshuk Mishra AIR 1971 Supreme Court 1011, the Hon'ble Apex Court, while dealing with Article 311 of the Constitution of India, has held that test for applicability of impugned order need not necessarily refer to stigma attributable to conduct of Government servant. Circumstances attendant on impugned order are relevant. By raising argument that plaintiff cannot be allowed to take benefit of has own wrong, the learned State counsel impliedly admitted that the impugned order is the result of alleged misconduct and as such without holding a proper inquiry, the services of the plaintiff cannot be dispensed with. The Division Bench of this Court in authority Dr.Inderbir Singh vs. DAV College Managing committee and others reported in 2008 (1) SLR 631, quashed the order of termination, where no opportunity of hearing was given to the plaintiff before passing the order of termination, who has rendered the services of six years. In the present case also, the order of termination has been held to be void being against the principles of natural justice. So, the substantial question of law framed for determination, referred to above, stands answered against the appellants on the facts of the present case. Consequently, the appeal is without any merit and the same stands dismissed. Needless to say that plaintiff shall be treated in similar terms for which the other co-employees selected by the same process, were treated. RSA No.1613 of 1992. 9 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 20th , 2010 sv