Decided on April 02,1979

The State Of Himachal Pradesh And Others Respondents


Chet Ram Thakar, J. - (1.) Shri Madan Lal, respondent No. 3, was employed by the Municipal Committee, Dharamsala, as a Sanitary Inspector with effect from 1st April, 1965. The respondent No. 3 entered into an agreement with the Municipal Committee and furnished two sureties.
(2.) On 30-11-1973, respondent No. 3 applied for leave on the ground that his wife had undergone an operation of sterilisation. Thereupon the Municipal Committee asked him to produce the medical certificate in support of his wife having undergone operation, but he failed to submit the requisite certificate. He again applied for one month's leave but the same was not sanctioned. Again, he applied for extension by a telegram, dated 29-3-1974. The Municipal Committee refused to sanction the leave and sent intimation at his home address but the respondent despite .the fact that he was refused leave absented himself from duty upto 23-10-74. The Municipal Committee passed Resolution No. 405 dated 26-2-1974 whereby it was decided to charge-sheet the respondent for remaining wilfully absent from 'duty. The charge-sheet was sent under a registered A. D. cover at his permanent address but the same was received back from the postal authorities with the remarks that the "addressee has refused to take the delivery." Since the respondent did not send any reply to the charge-sheet, therefore, the petitioner, vide Resolution No. 23, dated 19-9-1974 issued a show cause notice to the effect that the services of Shri Madan Lal were not in the interest of the Municipal Committee but again no reply was sent by the respondent. On 26-4-1975 the respondent submitted a joining report. Thereafter he was charge-sheeted pursuant to the resolution passed by the Municipal Committee and an enquiry committee was constituted to enquire into the conduct of the respondent. The Committee after having enquired into the matter submitted its report which was considered by the petitioner and in pursuance of that a show cause notice was issued to the respondent to show cause why he should not be dismissed. To this a reply was submitted and it was considered by the Municipal Committee but the same was found quite unsatisfactory and the petitioner decided to dismiss the respondent from the service of the Municipal Committee. Since under the rules an employee cannot be dismissed unless prior sanction of the Deputy Commissioner had been obtained, therefore, the Municipal Committee obtained the sanction on 12-8-75. Again, it appears that the respondent sent a further reply which was also considered by the petitioner on 18-8-75 and again a fresh resolution was passed deciding to dismiss the respondent from service and again the Deputy Commissioner was moved for granting sanction before the order was passed. The Deputy Commissioner by his letter, dated 22-8-75 gave the approval. Therefore the respondent was dismissed from service.
(3.) The respondent No. 3 filed an appeal before the Deputy Commissioner who dismissed the appeal. Later on it appears that he filed another appeal to respondent No. 2, i.e. the Secretary (Local Self Government Government of Himachal Pradesh, who accepted the same and set aside the order of dismissal. It is against this order, Annexure PH that the petitioner has moved this petitioner under Articles 226 and 227 of the Constitution of India for quashing the order on the ground that no appeal was competent before the Secretary LSG). The rules provide only one appeal which was filed before the Deputy Commissioner and the Secretary (LSG) had no jurisdiction. Further, the appeal served to have been decided by the Under Secretary (LSG) who had no power to decide the same. The respondent No. 3 had been appointed by the Municipal Committee and a service contract had been entered into with the Municipal Committee and as such it was the Deputy Commissioner only who was empowered to decide the appeal and no second appeal lay. Further it was averred that the Secretary (LSG) had erred in holding that the Municipal Committee had already made up its mind on 9-8-1975 to dismiss the respondent No. 3. It was wrong on the part of the Secretary (LSG) to say that the enquiry was merely an eye wash.;

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