AMITAVA LALA,J. - (1.) THE petitioner has challenged the order of termination dated 18th March, 1994 by saying that it is illegal, arbitrary and has been caused in flagrant violation of principles of natural justice.
(2.) IT appears to this Court that neither any enquiry proceeding was initiated nor any cause has been shown for dispensation of such enquiry by the respondents authority. Only by way of affidavit, the respondents wanted to establish the case that there is no necessity of enquiry. Therefore, their case is for violation of principle of natural justice. Rule 11 of the Rules relating to U.P. State Handloom Corporation (Staff and Officers Conditions of Service Rules) speaks as follows:- "11. Procedure for imposing major penalties:- (i) No order imposing any of the major penalties shall be made except after an enquiry held in accordance with this subrule. (ii) Whenever the disciplinary authority is of the opinion that there are grounds for enquiring into the truth of any imputations against an employee, it may itself enquire into the truth thereof or may appoint any officer (hereinafter called the enquiring officer) for the purpose. (iii) Where it is proposed to hold such enquiry, the disciplinary authority shall frame definite charges on the basis of the allegations against the employee. The charges, together with the said allegations, shall be communicated in writing to the employee who shall be required to submit within a reasonable time a written statement whether he admits or denies any or all of the charges. He shall also be required to state whether he desires to be heard in person, whether he desires to cross-examine any of the witnesses proposed to be produced against him and also whether he has any witnesses to produced in his defence, and, if so, what each witness is expected to testify. He shall also give the full particulars and the address of each witness. Note:- the charge-sheet shall be accompanied by copies of any statement made previously in any informal and confidential enquiry into the allegations against the employee. Further, below each charge shall be listed the documents and proofs proposed to be taken into account at the enquiry and the particulars of any witnesses proposed to be examined in support of each charge. (iv) Before submitting his written statement of defence to the enquiring officer the charged employee may ask to be allowed to inspect the documents cited in the charge-sheet or any other relevant records and / or also ask for copies of any relevant documents. Reasonable facilities for inspection will be allowed to him and he may be supplied with copies of such documents as, in the opinion of the enquiring officer, are such that the requirements of reasonable opportunity of defence cannot be fulfilled without their inspection or the supply of copies, as the case may be. (v) The disciplinary authority may nominate any officer to be known as the presenting officer to present on its behalf of the case in support of the charges. (vi) The charged employee may take the assistance of anyone of his colleagues in the Corporation, but shall not engage any legal practitioner for the purpose. (vii) On the date fixed for hearing by the enquiring officer the oral and documentary officer the oral and documentary evidence by which the charges are proposed to be proved shall be considered. (viii) the enquiring officer may allow the production of evidence no specified in the charge-sheet or may him-self call for new evidence or recall or re-examine any witness. In such a case the charged employee shall be given an opportunity to inspect the documentary evidence brought on record or to cross-examine a witness who has been so summoned. (ix) The evidence on behalf of the charged employee shall then be produced. The employee may himself have his statement recorded as a witness in his own behalf of he so chooses. The witnesses produced by the employee shall then be examined, cross-examined and reexamined, as may be necessary, with power to the enquiring officer to put any question to any witness. (x) The enquiring officer may, after the the employee closes his case, generally question him on the circumstances appearing against him in the prosecution evidence with a view to enabling the employee to explain any circumstances appearing in the evidence produced against him. Provided that such questioning may not be necessary if the employee has already given his statement as a witness and in the course of which the enquiring officer has already questioned him as aforesaid." Respondents want to establish their case on the basis of Service Rules of U.P. State Handloom Corporation Ltd. Rule 16(1) (c ) is being quoted below:- "where the disciplinary authority is satisfied that, in the interest of the basic principles underlying the incorporations of the Corporation and its effective functioning or in the interest of the security of the country, it is not expedient to hold an enquiry in the manner provided for in these subrules." However, even if the same is applicable with a specific case even then some cause will have to be shown for the purpose of dispensation of the inquiry. We have not seen that any such step has been taken by the authority on the ground of dismissal or recovery of amount of Rs.49.75 lacs on the ground of alleged embezzlement. The learned counsel for respondents further cited the judgement reported in AIR 2008 Supreme Court 2463 Union Public Service Commission V. Dr. Jamuna Kurup & Ors. to establish that a Municipal Corporation is not 'government' and municipal employees are not government servants governed by Articles 309 and 311 of the Constitution of India. He has further cited a judgement in support of his contention reported in (2006) 8 Supreme Court Cases, 129 Indu Shekhar Singh and others Vs. State of U.P. and others. It has been stated that right of seniority is not a fundamental right. It is merely a civil right. Controversy is not related to seniority, therefore, the ratio is inapplicable herein. In any event, in para 32 and 37 of counter affidavit, there is an admission on the part of the respondents that only after calling reply, the punishment has been imposed. Therefore, the dispute is whether the authority has infringed the principle of natural justice at the time of awarding punishment or not.
(3.) WE are of the view that petitioner may or may not be regular government employee or employee under other authorities but the question of natural justice at the time of awarding punishment particularly in respect of major punishment enquiry cannot be dispensed with. There is no scope to defending the issue by filing an affidavit nor we are satisfied, if any such plea has been taken by the respondents herein. Therefore, in totality the order of punishment to be quashed along with the appellate order and the order of recovery.;