IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 4158-CAT of 2005 ` Date of Decision: April 29,2008 Rajinder Kumar ...........Petitioner Versus Union of India and others ..........Respondents CWP No. 8521-CAT of 2005 Union of India and others ...........Petitioners Versus Rajinder Kumar and another ..........Respondents Coram: Hon'ble Mr.Justice M.M.Kumar Hon'ble Mrs. Justice Sabina Present: Mr.N.P.Mittal,Advocate for the petitioner (in CWP No.4158-CAT of 2005) and for respondent No.1 (in CWP No.8521-CAT of 2005) None for Union of India * * * Sabina, J. This order shall dispose of C.W.P. Nos.4158-CAT of 2005 and 8521-CAT of 2005 as both the writ petitions have arisen out of order dated 20.5.2004 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as `Tribunal) in O.A. No. 762- PB of 2003 vide which disengaging/terminating the services of respondent No.1 has been quashed with a liberty to the department to pass a fresh order in accordance with the observations made by the High Court. Additionally, in Civil Writ Petition No. 8521-CAT of 2005, the order dated 6.12.2004 vide which the review petition filed by the Passport Officer, Ministry of External Affairs, Jivan Parkash Building, Model Town, Jalandhar was dismissed, has also been challenged. Case of the applicant-Rajinder Kumar (casual labourer) CWP No.4158-CAT of 2005 -2- as stated in O.A. No. 762-PB of 2003 in brief is that his name was sponsored by Employment Exchange, Jalandhar and he was selected and inducted by the Office of respondent No.3-Passport Officer, Jalandhar as casual labourer along with others. Applicant-Rajinder Kumar had been performing his duties and responsibilities since September, 1991 till impugned order dated 5.6.2003 was passed by respondent No.3. The Scheme formulated by the Government of India came into force with effect from 1.9.1993. In terms of para 4 of the Scheme, temporary status was conferred on the applicant and 36 other employees' with effect from 1.9.1993 vide order No. 2(3) 94-POJ/Admn. dated 24.5.1994. The name of the applicant appeared at serial No.31. Mr. Makhan Singh, who had worked in the Office from 30.5.1991 to 30.9.1991, a terminated employee was confident of Mr. I.N. Chadha, the then Passport Officer,Jalandhar and he involved applicant and several others in a false criminal case. Due to this reason, applicant was arrested on 5.7.1995 and was released on bail on 29.9.1995. Applicant filed O.A. No. 458/PB/1996 before the Tribunal as other casual labourers had been allowed to join duties who were also involved in criminal case. The said application was allowed and applicant was allowed to join duty. Mr.Shekhar Kumar filed O.A. No. 740-PB- 2002 challenging his termination vide order dated 9.7.2002 on account of registration of criminal case against him and the said application was dismissed by the Tribunal. Thereafter, he filed Civil Writ Petition No. 9743-CAT of 2003 and the same was allowed by the High Court on 8.7.2003 and the termination order passed by respondent No.3 was quashed. Mr. Shekhar Kumar was not allowed to join duty despite the fact that the writ petition filed by him was allowed. Applicant filed O.A. No. 1312/PB/1997 challenging the order vide which he was not allowed to join duty. Vide its order dated 28.12.1998, the Tribunal has disposed of O.A. No. 1312/PB/1997 by quashing the order dated 12.7.1995 vide which the applicant was put off the duty and it was directed that the respondents may take steps under para 4 of the scheme, after applicant submitted his joining report. The respondents shall allow the applicant to join duty, in case, joining report was submitted by the applicant and,thereafter, they could proceed further as per law. In pursuance of the CWP No. 4158-CAT of 2005 -3- said order, the applicant was ordered to join his duty on 1.4.1999 and was also allowed consequential benefits with effect from 5.7.1995. Applicant was again terminated by giving him notice in pursuance of para 7 of the scheme vide order dated 27.9.2001. The said order was challenged by the applicant by filing O.A. No. 1010-PB of 2001. The said application was dismissed by the Tribunal vide order dated 26.11.2001. Aggrieved by the said order, applicant filed CWP No. 3612-CAT of 2002 before this Court. The said writ petition was allowed vide order dated 26.11.2001. The termination order was quashed and respondents were directed to grant all consequential benefits to the applicant. Applicant submitted his joining report on 24.9.2002 but he was not allowed to join duty by respondent No.3. The applicant filed COCP No. 251 of 2003 before this Court. On receipt of notice in the said contempt petition, respondent No.3 allowed the applicant to join his duty on 12.3.2003. After 13 days, a show cause notice was issued to the applicant on 25.3.2003 and the impugned termination order was passed with one month notice on 5.6.2003. Applicant was relieved from his duty on 4.7.2003. Applicant submitted a detailed reply on 21.3.2003. In addition, he also moved a representation to respondent No.3 on 21.3.2003. Hence, O.A. No. 762-PB of 2003 was filed by the applicant challenging the orders dated 5.6.2003 and 25.3.2003. The Tribunal vide order dated 20.5.2004 allowed the original application. The operative part of the order is reproduced as under:- “In view of the judgment, Annexure A-3 and the observations made by the Hon'ble High Court, as reproduced above, the fact remains that respondents have not held any inquiry and the order at Annexure A-1 has been passed simply on the basis of a show cause notice, Annexure A-2, after receiving a reply from the applicant. In these circumstances, the arguments raised by the ld. Counsel for respondents, though raising important questions of law, cannot be considered at all. Consequently, the order at Annexure A-1 is hereby quashed and set aside. Respondents will be at liberty to pass a fresh order in accordance with the observations made by the Hon'ble High Court in Annexure A-3. On the prayer of the applicant to CWP No. 4158-CAT of 2005 -4- receive full salary, this court finds that he was only a causal labourer. If he has not worked during the period when he remained out of job, he has no right to claim wages which he terms as arrears of salary from 4.7.2003 onwards. This OA is disposed of in terms of the observations and findings, recorded above, with no order as to costs.” The Passport Officer, Jalandhar, respondent No.3 filed review application before the Tribunal for review of the order passed by the Tribunal dated 20.5.2004. The said application was dismissed vide order dated 6.12.2004. Respondents aggrieved by the orders of the Tribunal dated 20.5.2004 (Annexure P3) and dated 6.12.2004 (Annexure P5) have filed Civil Writ Petition No. 8521-CAT of 2005 seeking quashing of the said orders. Applicant-Rajinder Kumar has filed Civil Writ Petition No. 4158- CAT of 2005 for issuance of a writ of certiorari or any other writ, order or direction for quashing the impugned order of the Tribunal dated 20.5.2004 whereby prayer of the petitioner for payment of salary with effect from 4.7.2003 onwards with arrears was not allowed as termination order dated 5.6.2003 had been quashed by the Tribunal. A further direction was sought that the respondents be directed to pay all consequential benefits in terms of arrears of salary with effect from 4.7.2003 till the date of his reinstatement in view of the judgment passed in Civil Writ Petition No. 3612-CAT of 2002 decided on 7.8.2002. Short and significant question which arises for consideration in these petitions is that as to whether a casual labourer can be terminated by giving him one month's notice in terms of para 7 of the Government of India, (Grant of Temporary Status and Regularization) Scheme, 1993 (hereinafter referred to as `the Scheme'). After hearing the learned counsel for the applicant- Rajinder Kumar and perusing the record, we are of the opinion that the petition filed by the Union of India and others deserves to be allowed whereas petition filed by applicant-Rajinder Kumar deserves to be dismissed. A show cause notice dated 25.3.2003 was issued to the applicant which is reproduced as under:- “It is noticed that Shri Surjit Singh s/o Sh. Naranjan Singh R/o CWP No. 4158-CAT of 2005 -5- Vill Pattarkalan, PS Kartarpur, Jalandhar obtained a passport No.K-826310 dated 17.3.1992 from this office against file No. 10/84222/91 which actually belonged to one Sh. Gurpal s/o Ajaib Singh R/o Mirjwala PO Kang Khurd, PS Lohian, Jalandhar. Sh. Surjit Singh thus obtained the passport by fraudulent and illegal means by getting the photograph of Sh.Gurpal Singh substituted with that of his. The matter was referred to police authorities for investigation and a case FIR No. 101 dated 23.9.94 registered at PS Division No.4, Jalandhar under sections 419, 240,467,468 and 120-B IPC. The police authorities had arrested all culprits on 5.7.95 including Sh.Rajinder Kumar, casual labourer in this office. He remained in jail for about three months before the Hon'ble Court accepted his bail. It is thus clear that Sh. Rajinder Kumar was hand in glove with shaddy characters and actively connived with them in preparation of forged passports thereby playing a big fraud with the government and cheated innocent applicants by accepting huge amounts of money. He indulged in malpractices like substitution of photographs on passports. It is evident from the said charges that he cheated and played fraud with innocent public and the government of India. Sh.Rajinder Kumar is,therefore, hereby directed to explain his position in writing and why his services be not dispensed with in view of gravity of offences committed by him. His reply should reach to the undersigned within three days from the receipt of this notice failing which it will be presumed that he has nothing to say in the matter and suitable action will be initiated without further notice to him.” Vide order dated 5.6.2003, applicant was given one month's notice in writing as per para 7 of the scheme for disengaging/terminating his services as temporary casual labourer from the date of issuance of this notice. It was mentioned in the order that the applicant was issued a show cause notice dated 25.3.2003 calling him to explain in writing as to why his services be not dispensed with in view of CWP No. 4158-CAT of 2005 -6- the grave charge mentioned therein. A reply was furnished by the applicant and a personal hearing was also offered to the applicant on 7.4.2003. After considering the facts, submissions and past record of the applicant, it was found that continuation of his services as temporary casual labourer in the Office was not desirable in the interest of the State and general public. As per para 4 of the scheme which was attached as Annexure A4 with the application, a temporary status would be conferred on all causal labouerers who were in employment on the date of the issue of the Office memorandum dated 10.9.1993 and who had rendered a continuous service of atleast one year, which means they must have been engaged for a period of atleast 240 days. Para 7 of the scheme is produced hereunder:- “Despite conferment to temporary status, the service of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work” Vide order dated 24.5.1994, temporary status was granted to the applicant along with others with effect from 1.9.1993. The said order is Annexure A5 with the original application. The Tribunal allowed OA filed by the applicant on the ground that no inquiry had been held before terminating the service of the applicant. The services of the applicant had been terminated simply on the basis of a show cause notice and after receiving reply from the applicant. Learned Tribunal has proceeded with the case as if it if fell within the mischief of Article 311 of the Constitution of India. However, the present case is covered by para 7 of the scheme. The object of the scheme was to regularize all causal workers. The question as to whether the casual labourer who had acquired temporary status could be terminated as per para 7 of the scheme came up for consideration before Hon'ble the Supreme Court in Union of India and another vs. Mohan Lal etc. 2002(3) RSJ 627 which was replied in affirmative by their Lordships of Hon'ble the Supreme Court. The CWP No. 4158-CAT of 2005 -7- relevant paragraphs are reproduced herein below:- “6. The second question that arises for consideration is whether the casual labouerers who have been given temporary' status can be removed from service by giving notice as per clause 7 of the Scheme. It is true that by conferment of `temporary' status, the casual labourers acquire certain rights. Their daily rates of wages will be on the pro rata basis of salary and allowances payable to the employees working under the Group `D' posts. They are also eligible for the casual and other kinds of leave. On completion of 3 years' continuous service after conferment of `temporary' status, they would be admitted to the General Provident Fund. They are entitled to get Festival Advance and Food Advance and other welfare measures applicable to the Group `D' employees. Clause 7 of the Scheme makes it clear that despite the confinement `temporary' status, the services of a casual labourer may be dispensed with by giving one month notice in writing. This clause would certainly give the employer the right to terminate the service of casual labourer who have been given `temporary' status. 7. The Division Bench of Calcutta High Court in Writ Petition (CT) No. 86/99 (T.Rajakili and others vs. Union of India and others),held that Clause 7 must be read in a manner in which it does not render it unconstitutional. The employers cannot at their whims dispense with the services of the casual labourers who have acquired `temporary' status. The entire object of 1993 Scheme was to regularize all casual workers. To allow such uncanalised power of termination would also defeat the object of the Scheme. Dispensing with the services of a casual labourer under clause 7, in our view, could be for mis-conduct etc. 8.Having regard to the general scheme of 1993, we are also of the view that the causal labourers who acquire `temporary' status cannot be removed merely on the whims and fancies of the employer. If there is sufficient work and other casual labourers are still to be employed by the employer for carrying CWP No. 4158-CAT of 2005 -8- out the work, the casual labourers who have acquired `temporary' status shall not be removed from service as per clause 7 of Scheme. If there is serious misconduct or violation of service rules, it would be open to the employer of dispense with the services of a casual labourer who had acquired the `temporary' status.” It is a settled proposition of law as held by Hon'ble the Supreme Court in the case of Maneka Gandhi vs. Union of India, AIR 1978 Supreme Court 597 that the Doctrine of natural justice is applicable to even an administrative proceedings which involves civil consequences. Even if, there are no positive words in the Statute requiring that the party shall be heard yet the justice of the law would supply the omission of the Legislature. The principle of audi alteram partem which mandates that no one shall be condemned unheard, is also part of the rules of natural justice. Where a fair opportunity of being heard had been given, the mandate of natural justice is complied with. Adverting to the facts of the present case, a show cause notice was issued to the applicant. A perusal of the same would reveal that the applicant was involved in a criminal case and he remained in jail for about three months. The FIR was registered as it was noticed that Surjit Singh had got a passport which actually belonged to Gupral Singh by fraudulent and illegal means. All the culprits including the applicant were arrested by the police. Applicant submitted a reply to the said show cause notice. Applicant was also given personal hearing as is evident from order dated 5.6.2003 (Anneuxre A1) with original application. Thereafter, the termination order was passed in terms of para 7 of the scheme. The employer felt that the conduct of the applicant was such that he was not fit to be retained in service. Since the present case did not fall under Article 311 of the Constitution of India, a regular inquiry was not required to be held. It was for the employer to evaluate the conduct of the applicant. It has been held by Hon'ble the Supreme Court in Union of India and another's case (supra) that where there was serious misconduct, then it was open for the employer to dispense with the service of the casual labourer who had acquired the temporary status as per clause 7 of the scheme. CWP No. 4158-CAT of 2005 -9- Thus, the action of the department in terminating the services of the applicant in terms of para 7 of the scheme was justified. The principle of natural justice had also been complied with Accordingly, writ petition filed by Union of India and others (CWP No.8521-CAT of 2005) is allowed and the impugned order dated 20.5.2004 (Annexure P3) passed by the Tribunal in OA NO.762-PB of 2003 is set aside. Consequently, the writ petition filed by the applicant Rajinder Kumar is dismissed. Since the order passed by the Tribunal dated 20.5.2004 (Annexure P3) has been set aside, consequently, the prayer of the Union of India for setting aside the order dated 6.12.2004 (Annexure P5) vide which the review petition filed by it was dismissed has been rendered infructuous. No orders as to costs. April 29, 2008 ( M.M.Kumar ) ( Sabina ) Judge Judge arya