Employer Cannot 'Hire And Fire' Even If Employee Is Accused Of Misconduct Sans Fair Opportunity Of Hearing: Rajasthan High Court

The single judge bench of Justice Anoop Kumar Dhand observed:

“The order was manifestly stigmatic action taken to terminate petitioner’s service. Such action could not have been taken against the petitioner without giving him a full fledged opportunity of hearing to defend and after holding regular departmental enquiry. The employer is not allowed to hire and fire, even if allegations are there against the employee with regard to any misconduct. The services cannot be given a go-bye by one stroke of pen on the ground of misconduct by casting stigma, without holding regular enquiry in accordance with the principles of natural justice.”

It was the case of the petitioner that he participated for selection for appointment on the post of Physical Education Teacher Grade-II pursuant to the advertisement issued in the year 1998. The Counsel appearing for the petitioner submitted that the degree possessed by the petitioner was not considered by the respondents as valid degree for getting appointment on the advertised post. However, in an earlier writ petition filed by the petitioner, the Rajasthan High Court vide order dated November 18, 2005 directed the respondents to re-assess the merit of the petitioner and take into account the bonus marks of the State level certificate and in case the petitioner is found in merit then consider his case for appointment on the said post.

Thereafter, the petitioner was given appointment vide order dated October 31, 2006 after the verification of the documents/sports certificate furnished by him.

However, vide order dated February 14, 2007, the service of the petitioner was dismissed by the respondents by recording that the documents and sports certificate furnished by the petitioner were found to be forged and fabricated. Subsequently, the dismissal order dated February 14, 2007 was withdrawn by the respondents vide order dated May 18, 2007 subject to conducting a separate inquiry against the petitioner.

Meanwhile, an FIR was registered against the petitioner under Sections 420, 467, 468 and 471 of IPC. The Counsel appearing for the petitioner submitted that without issuing any notice and without holding any inquiry under the provisions contained under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (the Rules of 1958), the respondents have dismissed the service of the petitioner again vide order dated July 11, 2007 by holding that the sports certificate of the petitioner were found to be forged and fabricated.

It was further submitted that in the said criminal case, the petitioner was acquitted from all the charges by the Trial Court vide judgment dated August 26, 2021. It was argued that the impugned dismissal order has been passed against the petitioner with mala-fide intention.

On the other hand, the counsel appearing for the respondents-state contended that the petitioner has got appointment on the basis of fake and fabricated documents and when this fact was verified by the competent authority, it was found that the petitioner was not in possession of the genuine sports certificate.

It was further submitted that during the course of inquiry a written statement was submitted by the petitioner on January 08, 2007 wherein the petitioner has admitted that he has never participated in the State level sports competition.

The Court noted that where orders are to be made against a person it becomes duty of the authority to hear judicially, in an objective manner, impartially and after giving reasonable opportunity to the person concerned to place his case before it.

The Court observed:

“Passing an order which affects a person, without giving him an opportunity of being heard would be held to be vitiated as being contrary to principles of natural justice. If the safeguards provided by Article 311 of the Constitution are not to be rendered illusory, the words "reasonable opportunity" must be deemed to mean a real and adequate opportunity which is not merely nominal or a shame one. It is well settled principle of law that an order of removal from service which denied the person reasonable opportunity of defending himself in disregard of protection afforded by Article 311(2) of the Constitution, is a nullity and non-existent in the eye of law.”

It was highlighted by the Court that no notice or charge sheet was served upon the petitioner and no documents were supplied to the petitioner to seek his explanation that the sports certificates furnished by him were fake and fabricated.

“It is worthy to note here that before passing the impugned dismissal order, no explanation was sought by the respondents, no notice of charge sheet was given to him and no enquiry was

conducted against him, no affording opportunity given to rebut the allegations levelled against him,” the Court said.

The Court noted that the enquiry contemplated by Article 311(2) of the Constitution of India is what is generally known as a departmental enquiry and the constitutional requirement for a proper enquiry within the meaning of Article 311(2) are basically two fold:

1. The civil servant must be informed of the charges against him, and
2. He must be offered a reasonable opportunity of being heard in respect of those charges.

The Court placed reliance upon the judgments of the Supreme Court in Jai Shanker v. State of Rajasthan AIR 1966 SC 492; Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 and State of Assam v. Akshaya Kumar Deb (1975) 4 SCC 339.

The Court noted that the petitioner was a permanent government employee and he has constitutional safeguard and protection under Article 311(2) of the Constitution of India, as such it was absolutely imperative on the part of the respondents to give him an opportunity to defend his proposed dismissal from service, which was not given to the petitioner.

Thus, the Court set aside the impugned dismissal order and granted liberty to the respondents to hold fresh enquiry against the petitioner, in accordance with law and conclude the same within six months.

Citation: 2023 LiveLaw (Raj) 93

Case Title: Sanjay Dadich v. The State of Rajasthan & Ors.

Case no.: S.B. Civil Writ Petition No. 6869/2007

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