Mohini Chitkara vs The Chief Secretary of Govt. Haryana, Chandigarh

V.K. Jhanji, J.—This is plaintiffs second appeal directed against the judgment and decree of the first appellate Court whereby on appeal by the defendants, judgment and decree of the trial Court decreeing the suit of the plaintiff has been set aside and in consequence thereof, plaintiffs suit dismissed.

In the suit, plaintiff had challenged the order whereby she was removed from service. Upon contest by the defendants, trial Court held order removing plaintiff from service to be null and void and resultantly, decreed the suit for declaration that the plaintiff continues to be in service on the post of Junior Lecturer with all benefits attached to the post from time to time as she was in regular service throughout. In appeal by the defendants, first appellate Court held that the order removing plaintiff from service was lawful It thus, set aside the judgment and decree of the trial Court and in consequence thereof, dismissed the suit of the plaintiff. Hence, the second appeal by the plaintiff.

The contention of learned counsel appearing on behalf of plaintiff is that order dated 4.7.1979 of the Director, Technical Education, Haryana, Chandigarh, removing the plaintiff from service w.e.f. 1.2.1977, the date from which she continuously remained absent from duty, was set aside in appeal and plaintiff ordered to the reinstated but subsequently, without any notice to the plaintiff, order dated 29.4.1981 passed in appeal has been cancelled. Counsel further contended that order dated 29.4,1981 was never communicated to the plaintiff and, therefore, the same could not have been set aside without hearing the plaintiff. Mr. N.S. Bhinder, D. A. Haryana appearing on behalf of defendants has fairly conceded that there is no evidence on record that order dated 29.4.1981 was ever communicated to the plaintiff.

In view of the fair concession extended by Mr. N.S. Bhinder, D.A. Haryana, I am of the view that the judgment and decree of the first appellate Court is not sustainable in law. It is not in dispute that penalty of removal from service was imposed upon the plaintiff under rule 4(IV) of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. It provides that for good and sufficient reasons, penalties mentioned therein may be imposed upon a member of the service to whom rules are applicable. One of the penalties provided therein is removal from government service which does not disqualify him from future service. It is further not in dispute that rule 10 of the Rules gives right of appeal to every person against whom any of the penalties specified in rule 4 has been imposed. It is also not in dispute that plaintiff had preferred an appeal against the order removing her from service and in appeal, vide order dated 29.4.1981 the appellate Authority set aside order dated 4.7.1979 removing plaintiff from service. It is further not in dispute that order dated 29.4.1981 was never communicated to the plaintiff. It is also the admitted case that no notice was given to the plaintiff before passing of order dated 8.3.1982 vide which order dated 29.4.1981 was cancelled on the ground that she has failed to pursue the matter. In my view, order dated 8.3.1982 is not sustainable in law for the reason that plaintiff had no notice of order dated 29.4.1981 nor she had been afforded an opportunity of hearing before order dated 8.3.1982 came to be passed. An opportunity of being heard as an element of fair hearing is fundamental to rule of Audi Alterm Partem. Order dated 8.3.1982 cancelling order dated 29.4.1981 was not appealable or revisable and therefore, there was a greater responsibility and obligation on the Authority atleast to give an opportunity of hearing to the plaintiff who was likely to be adversely affected by the order. Because of denial of opportunity of hearing, order dated 8.3.1982 is not sustainable in law and thus, is set aside.

For the reasons recorded above, appeal is allowed, judgment and decree of the first appellate Court is set aside and that of the trial Court though on reasons other than the one recorded by the trial Court, is restored, with no order as to costs.

Appeal allowed.