CWP No. 9629 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 9629 of 2000 Date of Decision: 01.09.2010 Gurdev Singh ...Petitioner Vs. The Shiromani Gurudwara Parbandhak Committee ...Respondent CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Ms.Vanita Sapra Kataria, Advocate, for the petitioner. Mr.Sukhbir Singh Mattewal, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) The petitioner has invoked the writ jurisdiction of this court under Articles 226/227 of the Constitution of India to challenge the order of relieving from the service, on the charge of committing fraud. Translated copy of impugned order reads as under:- CWP No. 9629 of 2000 2 “ On the basis of Order No.21343/45 of Office of Shiromani Gurdwara Prabandhak Committee dated 29.7.97. In view of the complaint made by Palwinder Singh Premi of East Mohan Nagar dated 18.7.97 regarding keeping of 2 receipts by Tola on the counter Karah Parshad of Gurdwara Babna Deep Singh Ji Shaheed of Rs.10/- each (Total Rs.20/-) and on recovery of above 2 receipts which were recovered on search made on the spot by Supervisor, Gurdwara Shaheedgani and finding 7 more receipts of Rs.10/- each and on the basis of investigating report of Inspector Branch-85. Bhai Gurdev Singh sewadar Tola s/o S.Gurdev Singh is hereby relieved from service on the charge of committing fraud.” The petitioner was appointed as Sewadar by the President on 17.11.1992 vide Annexure P.1.The petitioner was placed in the grade of Rs.775-10-875-915-20-1115-1175-30-1475-1555-40-1955 with initial start of Rs.775/-. The condition of appointment was that he was appointed on ad-hoc temporary basis. After the petitioner put in about 5 years of service, his services were terminated by impugned order, without issuance of any charge sheet. Case of the petitioner was that no show cause notice was issued nor any opportunity of hearing was granted to the petitioner before passing the impugned order. Order AnnexureP.2 was subsequently affirmed by the Executive Committee. CWP No. 9629 of 2000 3 This fact is disputed by the respondent, that the order of relieving the petitioner was confirmed by the Executive Committee. The petitioner made representation against his relieving by terming it to be an order of dismissal vide Annexure P.3. However, representation was not accepted and therefore, the petitioner approached this court. On notice, writ petition was contested by the respondent by raising a preliminary objection that the writ petition was liable to be dismissed on the ground of delay and latches, as it was filed more than 2 years and 11 months after the order of dismissal. Preliminary objection was also raised that no explanation for the delay was given. This objection at this stage cannot be looked into, as the writ petition was admitted by this court and has come up for final hearing now, as no limitation is prescribed for entertaining writ petition. It is well settled law that it is discretion of High Court whether to dismiss the writ petition on the ground of delay and latches, it is not absolute law tht all the cases suffering from delay and latches are to be dismissed. The defence of the respondent, in fact, was that the petitioner was a temporary employee, having not been confirmed in service so far. Therefore, he was not entitled to benefit of the rules, as the procedure prescribed for dismissing a confirmed employee was not applicable to the temporary/probationer. On merit, contention raised by the learned counsel for the respondent was, that the petitioner was caught red handed on the basis of complaint Ex.R.1, and thereafter statement of some of the persons were CWP No. 9629 of 2000 4 recorded including that of the petitioner, wherein he had admitted his guilt. It was fairly admitted by Mr.Sukhbir Singh Mattewal, learned counsel appearing on behalf of the respondent that this procedure is followed in case of confirmed employee by treating it to be a preliminary inquiry before any regular inquiry is held. Learned counsel for the respondent also contended that as the petitioner was a temporary employee and had no right to the post and therefore, not entitled to any relief from this court. Learned counsel for the petitioner, on the other hand, placed reliance on Rule 1 (c) of the Rules applicable to the employees of the respondent which reads as under:- “Rule 1 (c):- Ordinarily for every fresh appointment two years probation shall be necessary, but under special circumstance this period may be extended or reduced by Executive Committee.” The contention of the learned counsel for the petitioner was, that as the petitioner has put in more than 2 years of service i.e. maximum period on which an employee can be kept on probation, therefore, he is deemed to be confirmed. Rules 4 and 5 of the Rules governing the service condition of the employees working with the respondent read as under:- “ Rule 4: DISMISSAL (a) The employee can be dismissed in accordance with the below mentioned rule by this appointment authority, CWP No. 9629 of 2000 5 but appeal against the dismissal by the President shall lie to the Executive Committee within 30 days from the date of dismissal. (b) Any employee under control of Management of any Deptt of Gurdwara under Shiromani Gurdwara Prabandhak Committee may prefer an appeal against any punishment of suspension, dismissal, fine, warning etc within 30 days from the date of issuance of the order:- (i) Any employee of the Shiromani Committee can be dismissed or degraded for his bad character, dishonesty, drinking or becoming a “Patit” but before he is dismissed or degraded, the allegations in the form of written charge-sheet shall be supplied to him along with the statement of allegations, on the basis of which the charges are levelled against him. Representation against these charges shall be received from the employee within reasonable time and in case he denies these charges or prays for holding an inquiry or the Executive Committee deems it fit, these charges shall be got inquired into in the presence of the employee and for each item of the charge sheet, which has not been admitted, evidence shall be recorded in his presence and the employee shall be entitled to cross- examine the witnesses. In case an employee wishes to produce his defence, the same shall be entertained, but in case if the inquiring Committee feels that certain evidence is not necessary, it shall not be permitted to be produced for the CWP No. 9629 of 2000 6 reasons to be recorded in writing. Action shall be taken against the employees only when the charge is established. In case of temporary or probationer employee the above mentioned procedure is not required to be followed. The committee can remove him at any time. (ii) In case the employee wish to produce any record or document in their defence, he shall be permitted to do so and if he asks for the copies of these documents, the same shall be supplied to him without any objection and he shall be permitted to inspect the record free of cost. (iii) Every employee, who has been dismissed or degraded or removed shall be supplied with the copies of the report of inquiry committee and also final decision of the Executive Committee free of cost. (iv) (a) The record pertaining to the dismissal or degradation of an employee shall not be destroyed for three years, rather it shall be kept in safe custody. (b) If an employee is reinstated on exoneration after his suspension he shall be entitled to the arrears of salary of the suspension period. RULE: 5: TERMINATION In case the Shiromani Committee at any time terminates permanent employee, the Committee shall be responsible to give him a notice of one month or the salary for one month along with the admissible allowances. In the same CWP No. 9629 of 2000 7 way, in case an employee wishes to leave his service, he shall give a notice of one month to the Committee or shall pay one months salary along with the admissible allowances.” While the contention of the learned counsel for the petitioner by referring to Rule 4 was, that before terminating an employee it was incumbent upon the respondent to hold departmental inquiry by issuing charge-sheet, and thereafter he should be given opportunity in terms of rules. Stand of the respondent, on the other hand, is that this rule provides that in case the employee is a probationer/temporary above mentioned procedure is not required to be followed. Other contention of the learned counsel for the petitioner was, that even if for the sake of argument, the petitioner is taken to be a temporary employee, impugned order shows that his service has been terminated on specific allegation and the order of termination attaches stigma, therefore, could not be passed, without following procedure for dismissal of an employee as dismissal was not in terms of his appointment letter but on specific charges. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of this court in CWP No.7236 of 1996 titled Ajaib Singh Vs. The Shiromani Gurdwara Prabandhak Committee, Amritsar, decided on 3.10.1996. Operative part of the judgment reads as under:- “ Since the employer failed to give a show cause notice to, CWP No. 9629 of 2000 8 or serve a charge-sheet on, the petitioner, the order dated 2.5.1996 is found to be totally unsustainable, arbitrary and against the Rules as well as violative of the principles of natural justice. Shri B.S.Gullani, learned counsel for the respondent, has also argued that all the employees of the SGPC were required strictly adhere to a pious life. They have to maintain high standards of life and should be persons of good character. Since the petitioner was found to be indulging in certain objectionable activities, his services could not be retained at a religious institution like Sri Darbar Sahib. This plea has no relevance to the controversies raised in the present petition. It (sic) true that persons of high morals and good character should be associated with the affairs of Sri Darbar Sahib, Amritsar, but an employee cannot be thrown out of the employment, because certain allegations were made against him relating to his conduct and character. Due process of law must be adopted and observed in accordance with the Rules. A bad employee can be thrown out of employment but only after following due process of law and observing the principles of natural justice. The petition succeeds. The order dated 2.5.1996, terminating the services of the petitioner, is held to be bad in law and in violation of the principles of natural justice and, therefore, it is quashed. The respondent is directed to take the petitioner back in service with all consequential benefits. The CWP No. 9629 of 2000 9 respondent shall, however, be at liberty to proceed against the petitioner afresh in accordance with law, if so desired.” The law laid down by this court in Ajaib Singh's case (supra) was upheld by Hon'ble Supreme Court in the case of Mewa Singh & Ors. Vs. Shiromani Gurdwara Prabandhak Committee JT 1998 SC 503 and has been relied by this court in subsequent judgments arising out of such type cases. The contention of the learned counsel for the petitioner, therefore, was that in view of the settled law referred to above writ petition deserves to be allowed. Mr.Sukhbir Singh Mattewal, learned counsel for the respondent, on the other hand, vehemently contended, that this judgment would have no application to the facts and circumstances of this case as the petitioner being a temporary employee was not governed by the statutory rules to claim that there was any violation of statuary rule so as to hold his termination/relieving/dismissal bad in law. This plea of the learned counsel for the respondent deserves to be noticed to be rejected for the simple reasons, that the order of his appointment did not show the terms of temporary employment nor it was pointed out by the learned counsel for the respondent that there was any temporary post in the cadre. Petitioner having been placed in regular grade was inducted as an employee on temporary basis against regular post. Even though the petitioner was not placed on probation at best he could be considered on probation for a period of 2 years. CWP No. 9629 of 2000 10 The judgment of this court in the case of Ajaib Singh Vs. The Shiromani Gurdwara Prabandhak Committee, Amritsar (supra), is fully applicable to this case. Even if for the sake of arguments petitioner is taken to be temporary employee, still the impugned order cannot be sustained as it has been passed on specific allegation. It is well settled law, that if the order of termination attaches a stigma then the employer is bound to follow principles of natural justice and follow procedure laid down in statutory rules for termination and dismissal of an employee. Inquiry held by the respondents was certainly in the nature of preliminary inquiry which was required to be followed by regular inquiry, against the petitioner by framing charges before any penal action could be taken. For the reasons stated, the writ petition is allowed, the impugned order is set aside. The petitioner is ordered to be reinstated with all consequential benefits. 01.09.2010 (Vinod K.Sharma) rp Judge