Birender Upadhyay vs State of Bihar and Another

U.P. Singh and S.K. Chattopadhyaya, JJ.—In this writ application the petitioner has challenged the validity of the order of discharge from service as contained in Annexure-3, dated 23-8-1989.

On a bare perusal of the impugned order it appears that the allegation of irregularity in his appointment was the cause of termination of his service. Annexure-2, dated 23-8-1989 is a kind of notice to the petitioner pointing out that his appointment was wrong and he must explain as to why he has drawn the salary committing financial irregularity. In other words, it was stated that drawing of the salary for the month of June, 1989, which had been stopped on account of wrong appointment of the petitioner, was illegal and by withdrawing the same he committed financial irregularity. He was asked to explain this allegation within 24 hours failing which he was to be suspended. It is worth noticing that the said notice contained in Annexure-2 was also dated 23-8-1989 and the order of termination contained in Annexure-3 is also of the same date i.e., 23-8-1989. Admitted position is that the petitioner was never afforded any adequate opportunity to explain as to how his appointment was wrong. The illegality or irregularity in his appointment was never pointed out either in Annexure-2 or in Annexure-3. The petitioner was appointed in the month of March, 1984 as clerk in the department of Health in the office of District T.B. Centre, Jamshedpur. By Annexure-5, dated 17-11-1987 he was substantively absorbed and by Annexure-4, dated 4-10-1989 he was regularised in the service. It is quite strange to notice as to how the order of termination could be passed earlier i.e. on 23-8-1989 when his services were subsequently regularised on 4-10-1989. This itself shows non-application of mind and the order terminating his service has been passed on extraneous ground. We have no doubt in holding that such an order of termination is quite arbitrary. Time and again this Court has pointed out that before, terminating the service of any employee on the ground of irregularity or illegality, the employee must be afforded adequate opportunity to explain as to how his appointment was illegal or irregular, and in what manner, so that he may have the satisfaction of explaining such allegations before the authority could pass the effective order of terminating the service. This has obviously not been done in this case. A peculiar feature of this case is that the petitioner was asked to explain without any charge given to him and that too he was asked to explain within 24 hours. This can hardly be construed as adequate opportunity. Firstly, he was not given any charge or allegations, which he could have explained and, secondly, it was quite arbitrary to ask him to explain the same within 24 hours without there being service of any charge and/or allegation. Such action must be held to be arbitrary.

For these reasons we quash the order dated 23-8-1989 contained in Annexure-3 and the petitioner is reinstated back to the service with all such benefits of service in accordance with service conditions which he might have been entitled to.

This writ application is accordingly allowed with cost of Rs. 500.