Civil Suit Maintainable Against Termination Of Probationer If No Enquiry Conducted Before Removal: Rajasthan High Court

The Rajasthan High Court has observed that the services of a regular appointed employee, though on probation, cannot be terminated without enquiry and without providing an opportunity of hearing and explaining the charges against him. The court pursued that the fact finding of two courts below are based on appreciation of evidence and no illegality or perversity has been pointed out in such fact findings, so as to give rise to any question of law much less substantial question of law. In this regard, the court noted that the nature of termination in the present matter was stigmatic. Previously, the court had framed the substantial question of law as "Whether, the Civil Court has jurisdiction to entertain the suit filed by the respondent/ plaintiff?". Justice Sudesh Bansal, observed, "As far as nature of termination as simpliciter or stigmatic is concerned, both Courts have concurrently held on the strength of oral or documentary evidence that the termination was stigmatic. The services of regular appointed employee, though on probation, cannot be terminated without enquiry and without providing an opportunity of hearing and explain the charges against him. The fact finding of two courts below are based on appreciation of evidence and no illegality or perversity has been pointed out in such fact findings, so as to give rise any question of law much less substantial question of law." Essentially, the plaintiff was terminated from the post of Conductor by the respondents during his probation period on account of remarks against him that he was carrying nine passengers and 240 Kg luggage without tickets. His appeal against termination order was dismissed by Appellate Authority. Plaintiff filed a civil suit for declaration, challenging termination order as well as Appellate Authority decision alleging inter alia that his termination is stigmatic and he has been terminated from service without conducting any proper enquiry as also without giving any opportunity of hearing on alleged charges of carrying passengers and luggage without tickets. He also claimed for his reinstatement with all consequential benefits and monetary benefits. The RSRTC, failing to file a written statement despite several opportunities, opposed the suit of plaintiff claiming that he was a probationer and no enquiry was required to be conducted before removal of plaintiff. Objections alleging that the Civil Court does not have jurisdiction, were also raised. The trial Court observed that since termination of plaintiff is stigmatic and no enquiry was conducted, no opportunity of hearing was provided, no principle of natural justice was followed, thus, impugned termination order is illegal and void. Accordingly, the trial Court allowed plaintiff's suit declaring the termination order and order of Appellate Authority as illegal and void. The trial Court directed that monetary benefits be given to the plaintiff from the date of his termination. Thereafter, the Appellate Court dismissed defensant's first appeal and upheld the trial court's judgment. Hence, the RSRTC has filed this second appeal.The court answered the question of law in negative as to whether the civil court has jurisdiction to entertain the concerned suit. For this, the court relied on Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa [(2009)4 SCC 299], wherein Apex Court held that where no enquiry has been conducted, there would be violation of statutory Regulations as also right of equality as contained in Article 14 of the Constitution of India. It was added that in such a situation a civil suit will be maintainable for the purpose of declaration that termination of service was illegal and consequences flowing therefrom. Reliance was placed by the court in Kondiba Dagadun Kadam Vs. Savitribai Sopan Gujar [(1999)3 SCC 722], wherein Apex Court held that question of law which has already been decided by a larger Bench of the High Court concerned, or by the Privy Council, or by the Federal Court or by the Supreme Court, mere wrong application on facts of a particular case does not create another substantial question of law. In such a view of the matter there is no substantial question of law in instant matters, observed the court. The court opined that both courts have not committed any illegality or jurisdictional error in awarding backwages to plaintiff from the date of his termination order and decreeing plaintiff's suit as a whole. In addition to this, the court noted that in Umerkhan v. Bismillabi [(2011)9 SCC 684], Supreme Court had propounded that if a second appeal is admitted on substantial question of law, while hearing second appeal finally, High Court can re-frame substantial question of law or can frame substantial question of law afresh or even can hold that no substantial question of law involved, but the High Court cannot exercise its jurisdiction of Section...

Civil Suit Maintainable Against Termination Of Probationer If No Enquiry Conducted Before Removal: Rajasthan High Court

ANIRUDH VIJAY

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