Kishore Vs. Cane Commissioner, U.P. & Ors  Insc 207 (19 February 2008)
Sema & Markandey Katju
O R D
E R CIVIL APPEAL NO.2438 OF 2006
appeal is directed against the judgment and order dated 14.10.2003 passed by
the High Court dismissing the appellant's writ petition and the Special Appeal.
facts leading to the filing of this appeal are as follows:
appellant was appointed on temporary basis. This is not disputed. By an order
dated 16.06.1997 several charges were levelled against him. A show cause notice
was thereupon issued to him to be replied within 15 days. Show cause notice was
replied by the appellant by letter dated 30.06.1997 that is within 15 days'
enough, the enquiry report was submitted on 27.06.1997 even before the show
cause reply was received. Thereafter, the appellant's service was done away
with by order dated 22.8.1997. In a democratic country like ours governed by
the rule of law such arbitrary action of the respondent cannot be said to be
passed in accordance with law. The procedure adopted by the respondents is
unknown to the law.
other hand, the appellant's termination order dated 22.08.1997 is not a
termination simplicitor. We have been taken through the order of termination.
In the order of termination the entire facts leading to the filing of the
charges of embezzlement alleged to have been committed by the appellant has
the order of termination cannot be treated as simplicitor but it is by way of
punitive action recording stigma on the conduct of the appellant. In such a
situation it is a bounden duty to hold an inquiry when opportunity could have
been afforded to the appellant in terms of Article 311(2) of the Constitution.
But in the instant case as already noticed the enquiry report was submitted
even before the receipt of the show cause reply by the appellant. Even if the
charge was framed and the enquiry report was submitted, the respondents could
have terminated the services of the appellant by way of a termination simplicitor
without stigma, because the appellant was a temporary employee. This has not
been done in the present case.
result, the order of termination cannot be said to be order of termination simplicitor.
The order of termination dated 22.08.1997 is accordingly set aside. The orders
of Single Judge and Division Bench of the High Court are set aside. The writ
petition of the appellant stands allowed. Consequently, this appeal is allowed.
however, give liberty to the respondent to initiate a fresh inquiry, if so
advised. On such an occasion it is open to the respondent to place the
appellant under suspension, after reinstatement and question of back wages
payable be decided after the inquiry.
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