Employment of an employee cannot be terminated without inquiry

It becomes necessary to know the truth or to unravel the real factual position so that the legal rights of an employee are not infringed.

Many times it so happens that the termination order is been passed without conducting any regular enquiry and without affording any opportunity of hearing.

The employer and executive goes on to claim that it was not practicable to conduct a regular enquiry.

The employer and its attorney’s do not shy to claim that provisions of Article of Constitution of India have not been complied as under the circumstances, it is not practicably possible to conduct an enquiry.

>>> The courts of law are ‘Parents Patriae’; Parents to the nation and have time and again acted to restore the faith in Constitution and rule of law and have laid down that it becomes necessary to know the truth or to unravel the real factual position so that the legal rights of an employee are not infringed.

The courts of law have not let an illegality to be converted into legality.

Services of the petitioner have been dispensed with without holding an enquiry and without giving an opportunity of hearing. The petitioner was suspended on lodging of the above-said FIR and ultimately dismissed from service as per the provisions of Article 311 (2)(b) of the Constitution of India without conducting an enquiry by virtue of order dated 11.11.2014.

>>> Background:

On the night of 4th September, 2014, a raid was conducted in the jail premises, during which, some narcotic substance was alleged to have been recovered from the pocket of trousers of the petitioner subsequent whereupon a case bearing FIR No.93 dated 5.9.2014 was registered under Sections 15/18/61/85 of the NDPS Act alleging therein that he was found to be involved in supplying narcotics to the jail inmates, thereby violated the provisions of para Nos.176, 177 and 206 of the Punjab Jail Manual. The petitioner was suspended on lodging of the above-said FIR and ultimately dismissed from service as per the provisions of Article 311 (2)(b) of the Constitution of India without conducting an enquiry by virtue of order dated 11.11.2014 

>>> Learned State counsel submits that the petitioner was found to be involved in a serious offence of NDPS and no regular enquiry was required to be conducted. It was found that the petitioner was supplying the narcotic substance to the inmates in the jail and thereby violated the provisions of para Nos.176, 177 and 206 of the Punjab Jail Manual. In such circumstances, no enquiry is required to be conducted as petitioner was caught red handed in the presence of jail officials. Learned counsel also submits that recovery was effected from the personal search of the petitioner as narcotic substance was recovered from the pocket of his official uniform and accordingly FIR No. 93 dated 5.9.2014 was registered under the NDPS Act.

Learned counsel for the petitioner submits that the impugned order has been passed without conducting any regular enquiry and without affording any opportunity of hearing. The provisions of Section 311(2)(b) of the Constitution of India have been attracted but no reasons whatsoever have been assigned for not conducting enquiry. It has not been mentioned in the impugned order as to how it was not practicable to conduct a regular enquiry.

Learned counsel also submits that provisions of Article 311 (2)(b) of Constitution of India have not been complied with whereas said power can be exercised only under the circumstances when it is not practicably possible to conduct an enquiry. Although, no reasons are necessary to be recorded but it is to be made out as to how the provisions of Article 311 (2)(b) are attracted. In the end, learned counsel submits that the impugned order of dismissal is liable to be quashed being violative of principles of natural justice and having been passed without conducting any regular enquiry or without recording any finding while attracting the provisions of Article 311 (2) (b) of the Constitution of India.

>>> While dismissing the petitioner from service, the provisions of Article 311(2)(b) of Constitution of India have been attracted which are reproduced as under:- “311. Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or a State:-

(2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.:

On perusal of above-said provisions, it is apparent that a safeguard against the misuse of provisions of Article 311 (2)(b) has been provided as it is specifically required that before summarily dismissing a person, the disciplinary authority must record the reasons for dispensing with the holding of an enquiry

On perusal of impugned order dated 11.11.2014, it is apparent that no reasons whatsoever have been recorded to show as to how the provisions of Article 311(2)(b) have been attracted. Without the existence of reasons or without recording the reasons, the application of Article 311 (2)(b) of the Constitution of India cannot be attracted.

On perusal of facts of the case, two versions regarding the incident of recovery of narcotic substance from the petitioner have come to the fore. As per the case of the petitioner, he has falsely been implicated whereas as per respondent-Authority, the petitioner has committed serious offence while on duty and no enquiry was required to be conducted. After considering both the opinions of the parties, it becomes necessary to know the truth or to unravel the real factual position so that the legal rights of an employee are not infringed.

The stand of the petitioner was never considered while preparing the said report. The impugned order of termination of services has been passed only on the basis of presumption whereas there was no scientific proof to substantiate the allegations and as such, the presumption cannot be made the basis to breach the rights of an employee. Accordingly, the order passed on presumption cannot be sustained.

>>> Simply, it cannot be said that the offence was serious and no enquiry was required to be conducted whereas…….. The absence of extraordinary circumstances to invoke provisions of article 311(2)(b) can be termed as misuse of power and therefore, such an action is not sustainable in the eyes of law.

In the present case also, no reason whatsoever or findings have been recorded by the Punishing Authority as to why it was not practicably possible to hold an enquiry. In view of the facts and the law position as discussed above, the present petition deserves to be allowed. Accordingly, the present writ petition is allowed and impugned order of dismissal dated 11.11.2014 (Annexure P-3) is set aside.

C.W.P. No. 3547 of 2015 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 3547 of 2015 Date of Decision:- 22.08.2016 Warder Ram Singh ....Petitioner vs. State of Punjab & ors. ....Respondents