D.K.Seth, J. - (1.) On 9th of September, 1981 the petitioner had applied for permission to contest the election to the Municipal Board, Saharanpur scheduled to be held in December, 1981. The permission was granted on 23rd September, 1981 with a stipulation in Clause 3 of the said permission contained in Annexure 2 that it would be open to the Bank to call upon him to cease to continue in the office of the Municipal Board if the Bank considers that his continued service in such office would interfere with his work in the bank and if he refused to relinquish his service as member of the Municipal Board when called upon to do so by the Bank, it would be open to the Bank to take disciplinary action against him and even terminate his service. But the said election for which permission was sought by the application contained in Annexure 1, did not take place. On 15th December, 1988, the petitioner informed the Bank that he would be contesting the election scheduled to be held in 1989 (Annexure '3'). The petitioner participated in the election on 10th January, 1989. The result whereof declared on 11th January, 1989 declaring the petitioner to be elected. By a communication dated 20th March, 1989, the petitioner was informed that there had been amendment in the rules and pursuant to such amended rules, explanation was called from him. The petitioner had sent his explanation on 4th of April, 1989 pleading ignorance of the amendment in the rules. On 19th April, 1989, the Bank had issued a notice to show cause together with a Circular dated 28th of January, 1987 containing the relevant extract of the amended rules being annexed as Annexures 7 and 8 to the writ petition. The petitioner submitted his reply on 10th May, 1989. Having considered the reply, the Bank had required the petitioner to resign from the post of Councillor of the Municipal Board within 3 days through the communication dated 25th September, 1989 informing him that in default, he would be liable to be proceeded against through a disciplinary action including termination of service. This order was challenged through writ petition No. 2840 of 1989 before the Delhi High Court, which was pleased to dismiss the writ petition by a judgment and order dated .1.8th July, 1990 (Annexure 11). The petitioner thereupon moved the Apex Court through a Special Leave Petition being S.L.?. (Civil) No. 10113 of 1990, which was dismissed by an order dated 5th April, 1991 (Annexure 14). Thereafter by or under a communication dated -13th May, 1991, the petitioner was given notice with the proposal to terminate his service asking him to show cause within 7 days being Annexure 15. T\he petitioner submitted his reply on 21st May, 1991, which is Annexure 16 to the writ petition. By an order dated 31st May, 1991, the petitioner's service was terminated with immediate effect offering the petitioner notice pay of three months in lieu of notice. This order contained in Annexure 17, has since been challenged in this writ petition.
(2.) Mr. K.P. Agarwal appearing with Ms. Suman Sirohi, learned Counsel for the petitioner had contended that the order of termination is in effect a punishment purported to have been punished through disciplinary proceedings and as such Regulations 521 and 522 of the Shastri Award are very much attracted making it mandatory that such order could be passed only after holding disciplinary proceedings as contemplated in Regulation 522 of the said Award. In the present case, according to him no disciplinary proceedings at all have been held, which is an admitted position. Therefore, the order of termination is void ab initio. Secondly, he contends that the ground on which the disciplinary proceedings were taken, was completely non-est since the petitioner had obtained permission to contest the election by means of the order dated 23rd September, 1981 through which he was permitted to contest the election and that no disciplinary proceedings could be taken against him pursuant to the alleged violation of the rules amended in 1987, of which the petitioner was ignorant. Since the permission was given to the petitioner to contest the election, there was no scope for termination of service on the alleged ground of non-compliance with the Bank's requirement to resign. He future contended that even if the termination was presumed to have been passed on the condition No. 3 in the order dated 23rd September, 1981, the question that his continuance in the office of the Councillor of the Municipal Board had interfered with the work of the bank, is a disputed question, which could only be ascertained in a disciplinary proceeding through adequate evidence. In the present case, this question was decided purely on the basis of caprice and whims of the Bank without holding any disciplinary proceeding or enquiry as to the said question. He next contends that the termination having been made on the basis of a misconduct within the meaning of paragraph 4 (e) of Regulations 521 as such the procedure laid down in paragraph 10 of Regulation 521 ought to be followed and non-compliance thereof would result in the procedural failure and as such, is liable to be struck down. The order of termination having provided for pay in lieu of notice is in effect a retrenchment and the grounds on which it was inflicted, is not a ground for retrenchment and if it is a retrenchment, in that event, in absence of any compensation and failure to observe the rules for retrenchment, the order cannot be sustained. He also contended that such termination would be hit by Article 16 of the Constitution of India to the extent that the service cannot be interfered with simply by termination with three month's notice till the tenure of entire service is over, in view of Regulation 522 of the said Award.
(3.) He had elaborated his arguments on these questions and had sought to impress upon the Court that the order cannot be sustained and as such, is liable to be quashed.;