1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (W) NO.119/2002 Ashok Kumar Chopra Vs. The Union of India & Ors. Date of Judgment : 12.4.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. P.P.Choudhary, for the appellant. Mr. M.C.Bhoot, Mr.V.K.Mathur, for the respondents. BY THE COURT : (PER HON'BLE SAPRE,J.) This is an intra court appeal filed by the writ petitioner of W.P. No.2161/2001 under Section 18 of the Rajasthan High Court Ordinance, against an order dated 29.1.2002 passed by Single Judge in W.P. No.2161/2001. 2. By the impugned order, the learned Single Judge dismissed the appellant's writ petition and in consequence upheld his removal order dated 7.5.2001 from the services. 3. So the question that arises for consideration in this intra court appeal is whether Single Judge was justified in dismissing the writ petition of appellant and in consequence justified in upholding his removal order dated 7.5.2001 (Annex.8)? 3. Facts of the case giving rise to filing of the writ petition 2 and this intra court appeal are these. 4. The respondent No.3 is a society registered as such under the Rajasthan Societies Registration Act, 1958 (for short hereinafter called 'the Society'). Earlier this society was known as “Shramik Vidhyapeeth”. However, by order dated 31.12.99, the Central Government (Department of Education), Ministry of Human Resource Development, New Delhi changed its name. It is now known as “Jan Shikshan Sansthan”. This change was accepted by Registrar of Society by order dated 1.4.2000 (Annex.P/1A). 5. This society is sponsored by Department of Education, Ministry of H.R.D. (Govt. of India) as is clear from (Annex.P/1-A). The affairs and management of society is essentially controlled by Central Government, Department of Education (H.R.D.). It is therefore, a State within the meaning of Article 12 of Constitution of India and hence amenable to writ jurisdiction of High Court under Article 226/227 of Constitution of India. 6. By order dated 5.1.94 (Annex.P-1) appellant (writ petitioner) was appointed on the post of “Artist-cum-Projectionist” by the society. He was then confirmed on this post by order dated 4.3.95 (Annex.P-2). 7. On 29.3.2001 (Annex.P-3) the appellant was served with one show cause notice by the society. It reads as under:- “Looking to your non-performance of duty as Artist-cum-Projectionist continuously since I joined as Director on 3rd November, 1999 and your frequent non-cooperation with the Management by sending vague representations to the Funding Agency i.e. Ministry of Human Resource Development, Govt. of India, New Delhi I, in the interest of the Sansthan and its beneficiaries and also to maintain discipline, serve you One Month's Notice as to why you should not be discharged from duty with effect from 3 1st May 2001.” 8. The appellant on receipt of aforementioned show cause notice replied to it by his reply dated 30.4.2001 (Annex.P-5) denying what is stated in the show cause. The society then by order dated 7.5.2001 (Annex.P-8) terminated the services of appellant. The termination order reads as under:- “With reference to the Show Cause notice issued to you vide letter No. JSS/2K/112 dated 29th March, 2001 wherein you were asked to explain within one month as to why you should not be discharged from service. As you have failed to submit your explanation within a month's period, you are hereby discharged from service with immediate effect. Your salary for the month of April, 2001 and for your attendance till-date during May, 2001 will be released only on submission of 'No Dues Certificate'.” 9. It is against this termination order, the appellant felt aggrieved and hence filed the writ petition out of which this intra court appeal arises against the society. The termination order was challenged interalia on the grounds that since it was passed without holding any inquiry in relation to so called allegations levelled in the show cause (Annex.P-3) and hence it is bad in law. It was averred that any termination order whether simple or/and stigmatic in nature, the same can only be passed after holding departmental inquiry by following principle of natural justice by the society and since it was not done in this case and hence the impugned termination order is liable to be set aside being passed in violation of principle of natural justice. The Society filed their return and interalia contended in support of their stand that firstly remedy of writ petition lies in filing a civil suit and claim damages rather than to seek a relief of reinstatement which is not permissible in the facts of this case. 4 Secondly it was contended that since the appellant (writ petitioner) failed to submit his reply to show cause within the time mentioned therein and hence the termination order was rightly passed and lastly it was contended that it was not necessary to hold any departmental inquiry by the society because the appellant was served with the show cause to which he did not reply and hence it was sufficient compliance of principles of natural justice in the facts of this case. This in substance were the grounds on which the society attempted to defend the impugned termination order. 10. As observed supra, the learned Single Judge dismissed the writ petition and upheld the termination order impugned in the writ petition. It is against this dismissal, which resulted in upholding of termination order, the writ petitioner has felt aggrieved and filed this intra court appeal. 11. Submission of learned counsel for the appellant was the same as was urged before the writ court. In substance his argument was that since society in this case was an instrumentality of Central Government falling within the meaning of expression “other authority” under Article 12 of the Constitution of India and hence it was incumbent upon the society (respondent) to have held a departmental inquiry before terminating the services of appellant. It was contended that appellant being a permanent employee in the employment of society, was entitled to have a fair hearing by ensuring observance of natural justice prior to taking impugned action so that he would have been able to meet the so called punitive allegations levelled against him in the show cause (Annex.P-3), which were made basis for terminating his services. Learned counsel placed reliance on several Supreme Court decisions taking this view such as AIR 1998 SC 1681, AIR 1991 SC 101, AIR 1989 SC 541 etc. 12. In reply, learned counsel for society while defending the termination order so also the impugned order of writ court reiterated 5 the same grounds, which were taken by the society in their return and urged before writ court. 13. Having heard the learned counsel for the parties and on perusal of record of the case, we find force in the submissions of learned counsel for the appellant taken note of supra and hence we are inclined to allow the appeal and in consequence, while allowing the writ petition set aside the termination order dated 7.5.2001 by issuance of writ of certiorari and further by issuing a writ of mandamus as indicated infra. 14. As rightly argued by learned counsel for the appellant, the law on the issue involved in this case remains no more res-integra and stands settled by series of decisions of Supreme Court. If any authority on an issue is needed to be relied on, then we prefer to quote one para from the decision of Supreme Court reported in AIR 1998 SC 1681 Uptron India Ltd. Vs. Shammi Bhan. Taking note of law laid down till 1998, the learned Judge, S.Saghir Ahmad J, speaking for the Bench held as under in para 15:- “15. Conferment of 'permanent' status on an employee guarantees security of tenure. It is now well settled that the services of a permanent employee, whether employed by the Government, or Government company or Government instrumentality or Statutory Corporation or any other “Authority” within the meaning of Article 12, cannot be terminated abruptly and arbitrarily, either by giving him a month's or three months' notice or pay in lieu thereof or even without notice, notwithstanding that there may be a stipulation to that effect either in the contract of service or in the Certified Standing Orders.” 15. We do not burden our order by taking note of other decisions of Supreme Court because the aforementioned principle of 6 law is reiterated in these decisions It is therefore, not necessary to again quote the same herein. 16. If we examine the undisputed facts of this case in the light of law laid down in Uptron India Ltd. case supra, then we have no hesitation in quashing the termination order dated 7.5.2001 passed by society. It is not in dispute that after serving the show cause notice (Annex.P-3), the society did not hold any departmental inquiry into the charges levelled in the show cause against the appellant. It is also not in dispute as is clear from the perusal of reply of appellant (Annex.P-5) that appellant had not accepted the charges levelled against him. Rather he had complained in his reply that he be supplied with the details of the so called allegations which according to him were vague to enable him to meet them properly. 17. In our opinion, it is beyond any shadow of doubt that impugned termination order was stigmatic in nature and being punitive, it could not have been passed without following the principle of natural justice i.e. by holding a departmental inquiry as provided in Rules if there are or by following the procedure known in law in such cases. In other words on the facts emerging from the record of the case, we are of the considered opinion that it was imperative for the society to have held an inquiry into the charges by affording the appellant an opportunity to defend. In the absence of this, the action impugned can be termed as being arbitrary and un- reasonable in nature. It is thus liable to be quashed in exercise of our extra ordinary powers under Article 226 of the Constitution of India. 18. We are not inclined to accept the submission of learned counsel for the respondent when he contended that inquiry in this case was not called for because firstly no reply was filed by writ petitioner within one month and secondly he has no right of reinstatement. In the first place, the appellant did file a reply (Annex.P-5). It is received in the office of Society on 4.5.2001. 7 Secondly whether reply was filed or not, yet it was obligatory on the part of society to have held an inquiry before terminating the services of the appellant. 19. We are also not impressed by yet another submission of learned counsel for the respondent when he argued that remedy of appellant lay in filing a suit and a claim damages but not reinstatement in service. In our view, in the light of law laid down in Uptron Ltd. (supra) and all such cases relied on in Uptron by Supreme Court, this submission does not really survive for consideration. Suffice it to say writ petition does lie against a society which is an instrumentality of Central Govt. and thus, falls within the forecorners of Article 12 of the Constitution. A writ of certiorari and mandamus can thus always be issued against such Society for quashing the action impugned in the writ petition. 20. This takes us to the next question as to whether any case is made out for award of backwages to writ petitioner and if so what writ should be issued consequent upon quashing of the termination order. 21. Though learned counsel for the appellant strenuously argued that once the termination order is quashed by this Court, then as a necessary corollary, the appellant becomes entitled to claim not only the relief of reinstatement in service against the Society but also all consequential benefits flowing from it as if he is deemed to be in service of society, which according to him necessarily includes backgwages also. We do not agree to this submission fully. True it is that appellant would be entitled to claim a reinstatement in service as one of the necessary consequence but at the same time, he cannot claim backwages as of right after seeking the relief of reinstatement. Indeed this issue relating to payment of backwages to such employee no longer remains res-integra and also stands answered by decisions of Supreme Court though in relation to cases arising out of labour 8 laws between the workman and employer of an Industry. It is ruled therein that award of backwages is a matter of discretion of Court/Tribunal to be exercised depending upon the facts of each case and the same cannot be claimed by an employee as of right as against his employer. It is held that burden lies upon an employee to prove that he was not gainfully employed after his termination. He is required to adduce evidence to prove such fact. In rebuttal, the employer too has a right to show that employee is not entitled to claim any backwage because he was gainfully employed or any other reasons. 22. In this case we have noticed that appellant in writ petition did not aver that he was not gainfully employed after termination and remained without employment thereby entitling him to claim even the backwages. In the absence of any averment in the writ petition much less proof, the relief of backwages cannot be considered much less granted to appellant. It is apart from the fact that the writ court cannot hold any factual inquiry on such issue in its writ jurisdiction like the labour Tribunal. In the light of these reasons and applying the principle of law “no work no pay”, we are not inclined to grant any relief of award of backwages to the appellant despite quashing the termination order. 23. It may be mentioned that appellant also challenged the termination order on several other grounds also such as, on the ground of malafides, lack of authority of a person passing the order etc. We do not however consider it necessary to decide the legality of termination on any of these grounds because once we struck down the termination order on one ground mentioned supra, then no other ground is needed for its quashing. 24. In view of foregoing discussion, the appeal succeed and is accordingly allowed. Impugned order is set aside. As a necessary consequence, the writ petition filed by appellant is partly allowed. 9 The impugned order dated 7.5.2001 (Annex.P-8) passed by Director of Society (respondent No.2) impugned in the writ petition is quashed by issuance of writ of certiorari. As a consequence of quashing of the order, the respondent No.2/3 i.e. Society is directed by writ of mandamus to reinstate the appellant in their services on the same post which he was holding at the time of termination within one month from the date of order. The respondents No.2/3 i.e. Society would be free to hold departmental inquiry into the charges already levelled against the appellant as also any other charges in case if there are against the appellant prior to his termination i.e. 7.5.2001 and take action in the matter in accordance with law in case if they so wish. As held above, the appellant is not entitled to clam any backwages from the Society from the date of his termination till the date of his reinstatement. However, in case, the respondents No.2/3 i.e. Society fails to reinstate the writ petitioner (appellant) pursuant to the writ issued by this Court within one month from the date of this order, then in such event, the appellant would be entitled to claim backwages by way of his monthly salary from the date of this order from the respondents No.2/3 regardless of the fact as to whether he is employed anywhere or not. No cost. [Dinesh Maheshwari], J. [A.M. Sapre],J. /tarun/