Mahesh Chand Sharma vs The State of Rajasthan and Another

Arun Madan, J.—The petitioner, who is serving as a Warder in the Central Jail, Udaipur has filed this writ petition on the grounds inter-alia that the petitioner-appellant was appointed as Warden on two years probation after his selection by the Selection Committee in July, 1977. According to the petitioner- appellant, during the course of his employment his performance had been satisfactory. The services of the petitioner-appellant were terminated vide office order dated 7.7.1989 (Annexure-1). The impugned order was not received by the petitioner-appellant. The petitioner-appellant was ordered to be discharged under Rule 29 of the Rajasthan Subordinate Service Rules, 1966 (here-in- after referred to as the 1966 Rules). During the period of probation the petitioner-appellant''s performance was verified to be good. The petitioner-appellant was discharged from service on the ground that he was convicted by the Children''s Court, Bharatpur for offences under Sections 377 & 341 of the I.P.C. According to the petitioner-appellant his services could be terminated under Rule 29 of the 1966 Rules only when it was found that his performance during probation period was not satisfactory. The petitioner-appellant''s services have been terminated by way of punishment. He ought to have been given charge-sheet or at least a show cause notice. It was prayed by the petitioner-plaintiff that his appeal be accepted and the impugned order terminating his services be quashed.

In view of the non-disclosure of the fact in the application form regarding the past conviction of the petitioner- appellant when he was minor he was convicted in respect of an offence u/s 377 & 341 I.P.C. by the Children''s Court prior to his joining the service, the respondents had directed termination of his service from the department on 7.7.89. The petitioner challenged this impugned order of termination by way of an appeal before the Rajasthan Civil Services Appellate Tribunal Rajasthan, Jaipur and the learned Tribunal vide it''s Orders dated 24th July 1990 set-aside the impugned order of termination of the petitioner from service and the appeal was consequently allowed.

Obvious implication of the said order, passed by the learned tribunal is that since the tribunal vide it''s well reasoned findings did not sustain the impugned order of termination and which was set-aside by the tribunal, the petitioner should have been re-instated in service by the respondents with all consequential benefits which were admissible to him in accordance with Rules. Since the said order of the learned tribunal was not challenged in appeal by the respondents, hence the same had become obiter and binding on the respondents and should have been implemented in letter and spirit.

It has been further contended by the petitioner that since he was not re-instead in service pursuant to the aforesaid directions of the learned tribunal, he was left with no option but to seek appropriate directions against the respondents by way of S.B.C. W.P. No. 2683/91, which was decided by this Court vide it''s orders dt. 29th July'' 91. This Court while allowing the writ petition with cost, directed the respondents to implement the order of the learned tribunal within a period of six weeks from the date of receipt of the said order with a further direction that the Government should take suitable action against the guilty officials, who were found responsible for their lapse in not having implemented the orders of the learned tribunal dt. 24.7.90.

It is surprising to note that the respondents showed scant regard not only to the orders of the learned tribunal but also gross disobedience to the aforesaid orders, passed by this Court in the writ petition. Left with no alternative, the petitioner yet entered into a second round of litigation against the respondents by filing a Contempt Petition No. 457/91 in S.B. C.W.P. No. 2683/91. In the meanwhile, during the pendency of the contempt petition, the respondents had directed re-instatement of the petitioner vide Order dt. 6.2.92 (Annexure-2). However, no mention was made in this order as to how the past services of the petitioner will be regularized nor it gave any indication in respect of salary and other consequential benefits to be paid to the petitioner.

It has further been contended by the petitioner that respondent No. 1 issued another order (Annexure-3) on 14.2.92 regularising the services of the petitioner during the period falling between the date of termination to the date of re-instatement as under:

Earned leave for 11 days: 28.7.89 to 7.8.89 Half pay leave for 40 days : 8.8.89 to 16.9.89 Leave extraordinary without pay : from 17.9.89. . . till date of joining.

During the course of hearing, Shri Kewal Ram, learned Counsel for the petitioner has contended at the bar that the respondents had again showed disobedience to the aforesaid orders of this Court by not paying the consequential dues as admissible to the petitioner, which ought to have been paid to him once his having been re-instated in service and it was the bounden duty of the respondents to have released the consequential dues of the petitioner.

I have heard learned Counsel for the parties and also perused the relevant documents on the record as well as the rival claims and contentions as advanced by the learned Counsel for the parties at the bar.

I am of the considered opinion that the respondents should have complied with the orders of the learned tribunal as well as of this Court by immediately settling the salary dues including the consequential benefits, which were admissible to the petitioner after his re-instatement in service and by also releasing the benefits which admittedly were admissible to the petitioner in accordance with the rules and in lieu of which the respondents had passed an order dated 14.2.92 (vide Annexure-3) by regularising his services for the intervening period between the date of termination to the date of re-instatement. It is indeed unfortunate that the petitioner has to knock the doors of Justice time and again and the respondents are responsible for their delibrate lapse in the matter.

I am fortified in my views from the observations of the Apex Court in the matter of Union of India and another Vs. Babu Ram Lalla, where in while dealing with the identical situation, the apex court observed as follows:

We agree wholly with the reasoning and conclusion of the High Court. Since the order of termination of service of the respondent was rightly held to be a nullity he was entitled to be paid salary on the footing that he had already continued in service and the void order was never in existence in the eye of law. The appeal, therefore, fails and is dismissed with no order as to costs.

In my opinion the petitioner deserves to succeed. The respondents are accordingly directed to immediately comply with the orders, passed by this Court by settling all the salary dues alongwith the allowances as admissible to the petitioner in accordance with the rules from the date of his termination to the date of his re-instatement as well as the subsequent dues till date as if he had not been terminated within a period of six weeks from the date of receipt of. certified copy of this order. The petitioner will also be entitled to interest @ 12 per cent on the aforesaid dues from, the respondents.

The writ petition is accordingly allowed with costs, which I assess at Rs. 5,000/-.

The registry is directed to send a copy of this Order to the Home Secretary (Jail Department) Rajasthan, Jaipur and also to the Director General of Police (Jail), Rajasthan, Jaipur for immediate compliance.