1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : Union of India & Another Vs. Chandresh Kumar @ Chunni Lal (D.B. Civil Writ Petition No.4380/2009) DATE OF ORDER : February 17, 2010 P R E S E N T 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 2 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 3 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 4 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' 5 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 6 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 : 7 “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 8 force in this writ petition. Hence, this writ petition is dismissed. (Gopal Krishan Vyas) J. (A.M. Kapadia) J. Ojha, a.