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S. Vs. Hindustan Aeronautics Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 4545 of 1981
Judge
Reported in(1982)IILLJ7AP
ActsH.A.L. Disciplinary Act - Sections 19 and 39; Recruitment and Promotion Rules; Constitution of India - Articles 14 and 16
AppellantS.
RespondentHindustan Aeronautics Ltd. and anr.
Excerpt:
labour and industrial - termination - sections 19 and 39 of h.a.l. disciplinary act, recruitment and promotion rules, article 14 and 16 of constitution of india - corporation competent to terminate service of its employee either by passing orders pursuant to employee or by passing order of simpliciter by virtue of terms of appointment - employee who committed gross negligence terminated by way of terms of appointment - such termination challenged - absolute power to select either procedure vested in corporation as per rule 47 - corporation should have taken procedure which prescribes inquiry for that provides opportunity to employee to prove innocence - statements of terminated employee in writ indicates his gross negligence in performing duty - held, in such circumstances termination of.....1. under the order impugned herein, the hindustan aeronautice ltd., has terminated the services of the petitioner by paying three months' basic pay in lieu of notice, as per paragraph 5 of the terms and conditions of appointment. according to the petitioner, the termination is really by way of punishment and that, the power sought to be invoked by the respondent-corporation is not available to it, in the facts and circumstances of this case. a few facts which are relevant for the present purpose may be stated : the petitioner was appointed as a medical officer in the respondent-corporation on 7th august, 1975. he was later confirmed in service and made permanent on 9th march, 1977. the order dated 9th march, 1977, stated, inter alia, that the petitioner will be on probation for a period.....
Judgment:

1. Under the order impugned herein, the Hindustan Aeronautice Ltd., has terminated the services of the petitioner by paying three months' basic pay in lieu of notice, as per paragraph 5 of the terms and conditions of appointment. According to the petitioner, the termination is really by way of punishment and that, the power sought to be invoked by the respondent-Corporation is not available to it, in the facts and circumstances of this case. A few facts which are relevant for the present purpose may be stated :

The petitioner was appointed as a Medical Officer in the respondent-Corporation on 7th August, 1975. He was later confirmed in service and made permanent on 9th March, 1977. The order dated 9th March, 1977, stated, inter alia, that the petitioner will be on probation for a period of one year and that, during the probationary period, his services can be terminated without notice, without assigning any reasons and without any compensation in lieu of notice. It further stated : '... After the probationary period when your services are confirmed your services can be terminated by three months' notice in writing on either side or payment of three months salary (pay only) in lieu of notice. In case of shorter notice the liability will be restricted to the payment for the proportionate period, which falls short of the notice period. If during the notice period, you are absent without permission, your services can be terminated without notice.'

This is clause (5) of the order which has been invoked by the Corporation to terminate the services of the petitioner. The order dated 9th March, 1977, provided further that the petitioner shall reside in the Company Township where he shall be provided free unfurnished quarters. The age of retirement is 58 years. Clause 13 of this order stated that, during his employment, the petitioner will be governed by the rules and regulations of the service of the company that may be in force, and which may be amended, altered or extended from time to time. It was further clarified that the acceptance of the appointment offer carries with it the petitioner's agreement to observe all such rules and regulations. The only regulation relevant in this behalf is in para. 47 of the Recruitment and promotion Rules of the respondent-Corporation, which reads as follows :

'47. The services of employees recruited against permanent posts and confirmed, can be terminated on 3 months' notice if his services are not required; but if the termination is proposed on disciplinary grounds, the procedure laid down in H.A.L. Disciplinary Act and Rules will be followed. If the notice falls short of the period of three months, the employees are to be paid basic pay for the period by which the notice falls short of the prescribed period of notice.'

2. According to the petitioner, the termination of his services was effected in the following circumstances; one Mr. Sampath, an Engineer in the service of the Corporation is a close friend of the General Manager, Group Capt. R. S. Siva Swami. Mr. Sampath had already suffered two heart attacks, and was ailing with heart trouble. He used to come to H.A.L. Dispensary and take medicine from the petitioner's senior, Dr. Stanley Subakar, who expired on 28th April, 1981. The petitioner also knows that Mr. Sampath is a chronic heart-patient. The petitioner stated further :

'... On 22nd June, 1981, it appears that he had a paralytic stroke as well as a heart attack in the early hours of morning. One Mr. U. D. Menon came to my residence in the H.A.L. Colony about less than 1 km., from Mr. Sampath's residence. Mr. Menon informed me that Mr. Sampath is not able to speak and he is suffering from pain in the heart. Mr. Menon came to me in the morning at about 6-30 A.M. I considered the matter and thought that as there are no in-patient facilities in our dispensary and as Mr. Sampath had previously 2 heart attacks, it will be in his interest if he is immediately sent to St. Theresa's Hospital in Sanathnagar which is one of the best and well equipped hospitals in Hyderabad. I telephoned to the ambulance of H.A.L. and sent to his residence by 6-40 A.M. He was put in the ambulance and sent to the Hospital and admitted with registration No. 71994. I understand that in the case-history noted in the hospital, it is mentioned that he was having pain in the left leg and left hand, that in the morning he lost speech as also movement of his leg and hand. He was having hypertension and was suffering from Mio-Cardial Infraction twice earlier. The hospital authorities gave him the best treatment available but he died at about 12 noon on account of cardio respiratory failure as noted in the hospital records. Presumably the heart attack renewed before his death ...'

3. The petitioner says that the General Manager found fault with him for not immediately going to the house of Mr. Sampath, and it is on that account that within three days of the death of Mr. Sampath the impugned order was passed.

4. The respondent-Corporation, however, has a slightly different story to tell. Firstly, no doubt, the Corporation says that there is no connection between what happened on 22nd June, 1981, and the termination of the petitioner's service : but, regarding what happened on 22nd June, 1981, the Corporation says this : Mr. Sampath was a chronic heart-patient to the knowledge of the petitioner. He took seriously ill on the morning of 22nd June, 1981. As none of his family members were present, his co-tenants and immediate neighbours rushed to his aid and one of them, Sri U. D. Menon, rushed to the petitioner's house, which is hardly 200 meters away from the house of Mr. Sampath. In spite of being apprised of the condition of Mr. Sampath and a request to come to the patient's residence, the petitioner informed him that there was no need for him to go and attend on Mr. Sampath and advised Sri Menon to remove the patient to St. Theresa's Hospital. It is not correct that the petitioner arranged for the ambulance. It was other officer who had gathered there, who physically shifted the patient to the car which was arranged by the Deputy Transport Manager. Even after Mr. Sampath was admitted in St. Theresa's Hospital the petitioner never cared to visit him. Mr. Sampath's daughter, who came there on that night, developed a chest pain. An Officer went to the petitioner's house late in the night and requested him to attend upon her, but the petitioner did not come. He merely gave some medicine to one of the Officers who went to call him. Only when the General Manager intervened and sent a car to the house of the petitioner did the petitioner come and attend upon the deceased's daughter. It was thought appropriate to shift her to the hospital and, accordingly, she was taken to the hospital by the General Manager himself in the car, because it was late in the night. The General Manager had to drive the car himself because walking up a driver at the late hour in the night would take further time which was not thought advisable. It is then stated that the service of the petitioner was terminated in terms of para. 5 of the terms and conditions of the order R & P Rules, framed by the Corporation. The allegations of the petitioner that he had taken extreme care of Mr. Sampath, and that the clinic maintained by the Corporation has no proper facilities for treatment, are denied. It is stated that the Corporation dispensary and sick-bay are modestly equipped with a small operation-theatre, clinical laboratory, oxygen and other equipments. It is clarified that the above facts are stated only in answer to the allegations made in the writ affidavit and that, they are not the reasons for termination. Finally, it is stated 'as no disciplinary action was contemplated, the services of the petitioner were terminated as the management no more required the services of the petitioner as the employees of the company had lost confidence in him. When there is want of confidence in the doctor, there is no use in continuing him in service as confidence is a main attribute for a doctor ...'. The allegation of bias, or that the order is punitive in nature, is denied.

5. The contention of Mr. M. Jagannadha Rao, the learned counsel for the petitioner, is that the impugned order really amounts to an order of dismissal. It was passed by way of punishment for the alleged failure of the petitioner to attend upon late Mr. Sampath, which allegation is not true. If a disciplinary enquiry is held, the petitioner would be able to establish that he has not been guilty of any negligence. Without holding such an enquiry, the termination of the petitioner on the subjective satisfaction of the General Manager of the Corporation is not only arbitrary and discriminatory, but is also inconsistent with the Rules and Regulations governing the petitioner's service. Counsel further submitted that, in the facts and circumstances of the present case, the power of termination by three months' notice was not at all available to the Corporation.

6. On the other hand, it is contended by Sri K. Srinivasa Murthy, the learned counsel for the respondent-Corporation, that the Corporation had two courses open to it; either to hold a disciplinary enquiry and pass appropriate orders in pursuance thereto, or to terminate the services of an employee in terms of the order of appointment. When the latter course was adopted as in this case, the only concern of the Court should be to find out whether the action is not bona fide. If the action is found to be bona fide, this Court should not interfere merely on the ground that the Corporation could as well have adopted the other course. In this case, it is argued, the termination of the petitioner's service is bona fide and was the result of the loss of confidence in the petitioner on the part of the officials and employees of the Corporation. In view of his behavior, and the attitude adopted by him on 22nd June, 1981, the Corporation cannot be expected to have confidence in the petitioner any further. Learned counsel placed strong reliance upon the decisions of the Supreme Court in N. Subba Reddy v. Andhra University, : [1976]3SCR1013 , And Air India Corporation v. V. A. Rebello, [1972-I L.L.J. 501]

7. Now, the position boils down to this : according the clause (5) of the order of appointment, the petitioner's service, even after he is confirmed, can be terminated by three month's notice in writing or on payment of three months' salary (pay only) in lieu of notice. The appointment is subject to the Recruitment and Promotion Rules of the respondent-Corporation, and para 47 of the Rules empowers the Corporation to terminate the service of an employee recruited against a permanent post and confirmed therein, by three months' notice, if his services are not required. However, if the termination is proposed on disciplinary grounds the procedure prescribed by the relevant rules in that behalf has to be followed. The question is : whether the Corporation has an absolute discretion in the matter of following either procedure In other words, is it open to the Corporation to adopt the termination procedure even where the services of an employee are being dispensed with really on account of some misfeasance, malfeasance, negligence, or other undesirable conduct, as the case may be If a disciplinary enquiry is held, the concerned employee will have an adequate opportunity to defend himself, and to prove that the charges levelled against him are not true. But, if the termination procedure is adopted, even in cases where the services are being dispensed with for the alleged or suspected misconduct, or negligence, as the case may be then the employee would have no chance of establishing his innocence. The termination order would be based upon the subjective satisfaction of the appropriate authority of the Corporation. The problem thus is to reconcile the two powers mentioned in para. 47 of the Recruitment and Promotion Rules.

8. Broadly, three kinds of situations may arise. The first is, where the services of a particular employee - which means the post held by that employee - is found to be either surplus or unnecessary, or where it is abolished altogether. In such a case, the termination procedure alone can be adopted, and no exception can be taken to it. The second situation is, where the employee is not guilty of any misconduct or negligence, but is either inefficient or for some reason his continuance is not found to be in the larger interest of the Corporation. In such a case, also, no disciplinary enquiry can be held, because he is not guilty of any misconduct or negligence. The only course available would be to adopt the termination procedure; and, again, no exception can be taken to such a course being adopted. The third situation is, where the employee is alleged to be, or is suspected to be guilty of either misconduct or willful negligence, or other undesirable conduct. It is in this case that the problem posed above arises. Mr. M. Jagaunadha Rao, says that in such a situation, the only course open to the Corporation is to hold a disciplinary enquiry and pass appropriate orders in pursuance thereto, while Mr. Srinivasa Murthy says that, even in such a situation, the termination procedure is available to the Corporation and that, unless found to be not bona fide, the Court should not interfere with such an order or action, as the case may be.

9. I shall first examine the facts of, and the principles enunciated in, N. Subba Reddy v. Andhra University (supra). The petitioner therein was appointed as the Professor of Anthropology by the Andhra University and confirmed in that post later. The order appointing him contained the terms and conditions governing the appointment and one of the conditions stated that he shall enter into a written contract with the University within one month of his joining the duty. The petitioner did execute such an agreement. Clause 10 of the agreement, inter alia, provided that even after the confirmation of the teacher the University shall be entitled to terminate his service, without assigning any reason by giving a notice in writing of its intention to terminate at least six calendar months before the date of termination, or by paying six month's salary in lieu of notice. Subsequent to the petitioner's confirmation, the Syndicate terminated his services by a resolution dated 28th October, 1973. The termination was said to have been effected in terms of clause 10 of the said agreement and S. 24 of Chapter V of the administration manual of the Andhra University. The matter ultimately came up before the Supreme Court, the High Court having dismissed the petitioner's writ petition. Three contentions were urged before the Supreme Court, viz., (i) that, S. 24 of Chapter V of the administration manual is ultra vires the powers of the Syndicate; (ii) that, S. 24 aforesaid and clause 10 of the agreement are inconsistent with Ss. 7 to 12 of Chapter XXIX of the University Code and, therefore, void and ineffective; and (iii) that, the service of the petitioner could not be terminated except on the grounds mentioned in Ss. 7 to 10 of the University Code. On the first question the Supreme Court held that the administration manual framed by the Syndicate is within its powers. It is unnecessary to deal with the reasoning behind the said finding for the purpose of this writ petition. The reasoning of the Supreme Court on the second and third contentions, however, is relevant. Section 39(f) of the Act empowers the Senate to frame statutes, providing for the classification and the mode of appointment of teachers in the University, while clause (c)(iii) of S. 19 of the Act confers power on the Syndicate to fix the emoluments of the teachers of the University, and to define their duties and conditions of service, subject to such statutes as may be prescribed in that behalf under S. 39(f). The Supreme Court pointed out that the service conditions have to be regulated only by the rules made by the syndicate but not by statutes made by the Senate. Accordingly, it held that the power conferred by S. 19(c)(iii) on the Syndicate to lay down the conditions of service was quite a distinct and separate power from the power conferred upon the Senate by S. 39(f) of the Act, to provide for the classification and the mode of appointment of teachers of the University. It is for this reason that the Supreme Court held that S. 24 of Chapter V of the administration manual framed by the Syndicate was totally within its competence. The Court then referred to the University Code framed by the Senate. Section 9 of the Chapter XXIX of the Code empowered the Syndicate to remove a teacher for misconduct on his part, or for breach by him of one of the terms of the contract which he has entered into with the University which, in the opinion of the Syndicate, made him unfit to hold the post. Section 11 of the said Chapter prescribed the procedure which had to be followed before removing a teacher. It also conferred a right of appeal on the aggrieved teacher. The Court then observed :

'..... The aforesaid sections of the Code (University Code framed by the Senate) have nothing to do with termination simpliciter of the services of a teacher without casting any aspersion on him, which is a distinct and separate matter and is provided for in S. 24 of Chapter V of the administration manual (framed by the Syndicate) and clause 10(b) of the aforesaid contract of service; (The words within bracket are supplied by way of elucidation). As such, neither S. 24 of Chapter V of the administration manual nor clause 10(b) of the agreement can be held to be void on the ground of repugnancy to Ss. 7 to 12 of Chapter XXIX of the University Code ...'

10. The Court also rejected the third contention of the petitioner, holding that, inasmuch as the order of termination was a termination simpliciter without attaching any stigma and which is governed by the conditions of service specified in the contract of employment, which the Syndicate was competent to provide for, the termination is not governed by S. 7 of Chapter XXIX of the University Code framed by the Syndicate.

11. Applying the principle of the above decision, it must be held that the two powers conferred upon the Corporation by para. 47 of the Recruitment and Promotion Rules, are two distinct and independent powers. But the above decision does not expressly deal with or answer the question raised in this writ petition. Now, if we look at the facts of the present case, it would be evident that the impugned order has been passed really on account of the alleged negligence or irresponsible behaviour of the petitioner on 22nd June, 1981. Though the Corporation says that there is no connection between the termination of the petitioner's service and what happened on 22nd June, 1981, it is not possible to accept the said assertion. The close proximity and the self-evident nexus between the said incident and the termination order passed within three days thereof, cannot be missed. But, I am now concerned with a larger principle which transcends the facts of this particular case. I must observe that, if one looks at the facts of this case, as stated by the petitioner himself, one has to hold that the petitioner did behave irresponsibly and in a manner unbecoming of a doctor, on 22nd June, 1981. But there may be cases where a person is suspected of, or alleged to be guilty of, a certain conduct, which suspicion or allegation may be found baseless if an enquiry is held. The person concerned may have an excellent answer or an excellent defence. If, even in such a case, the power of termination simpliciter is exercised, the person concerned would have no opportunity of putting forward his case and/or establishing his innocence, which would result in grave injustice. It is not a question of the competent authority acting mala fide. The competent authority may be acting bona fide; but the facts as assumed by him may not be correct, which can be established only by holding an enquiry. Take a concrete case, where the General Manager of the Corporation suspects an employee of being guilty of misappropriation of certain Corporation property. This suspicion he entertains on the basis of certain reports received by him, or information placed before him. On the basis of the said material, he may form a certain opinion. If it is held that in such a case he is entitled to terminate the service of the employee by giving three months' notice, and it is held further that the same cannot be questioned in a Court of Law, it may well result in grave injustice, because the employee concerned may be totally innocent, which innocence he could have established if an enquiry were held. The General Manager may be acting bona fide; but, the person who placed the material before him may either be acting mala fide, or the information gathered by him may itself be false. Arbitrariness is the very antithesis of the reasonableness and equal protection of laws inherent and implicit in Arts. 14 and 16 of the Constitution of India; (vide Maneka Gandhi v. Union of India, : [1978]2SCR621 ). If an absolute power is conceded to the Corporation to adopt the termination procedure even in a case where, in the ordinary course, a disciplinary enquiry ought to be held, then a situation will arise when, in no case will the Corporation hold an enquiry. Mr. K. Srinivasamurthy, the learned counsel for the respondent, contends that such a situation would not arise because the Courts will always interfere if it is found to be an action lacking bona fides. But, as I have pointed out above, it is not so much a question of bona fides on the part of the authority. It is a question of reasonableness, which implies that where a person's service is sought to be terminated on account of certain conduct or allegation, he must be given an opportunity to meet the same and satisfy the authority concerned that the imputation or allegation is unfounded, and that he is innocent. Where a termination has been effected on the mere subjective satisfaction, the Courts cannot hold an enquiry themselves and hold that the grounds on which the termination has been effected are not true. All that the Court can see in such a case, is whether there was material before the authority upon which he could have formed the satisfaction fairly and honestly, and nothing more.

12. The matter can be looked at from another angle also. The two powers mentioned in para. 47 have to be reconciled. Neither power should be construed so broadly as to virtually nullify or ineffectuate the other. If Mr. Srinivasa Murthy's argument is accepted, it would follow that the power of termination simpliciter would encompass all the cases which fall under the removal procedure, thereby making the removal procedure superfluous and unnecessary. On the contrary, if it is held that where the service of an employee is sought to be dispensed with on account of some misfeasance, negligencn, or undesirable conduct, only the removal proredure shall have to be followed; then both the powers would remain effective end operational. I have already pointed due the several situations in which the power of termination simpliciter can be resorted to.

13. After the recent decisions of the Supreme Court and this Court, there can be little doubt that the respondent-Corporation being an instrumentalily/agency of the Central Government, is amenable to the writ jurisdiction of this Court. Indeed, in the Full Bench judgment of this Court in Satynarayana v. state, [1982 I L.L.J. 224], this Court, while pointing out the dangers inherent in taking the contrary view, referred expressly to Hindustan Aeronautics Ltd., no doubt, by way of illustration. Speaking for the majority, I had observed (at p. 238) :

'....... Further, as repeatedly pointed out by several Judges, there is no such thing as a 'governmental function' and a non-governmental function under our Constitution. Every activity that the Government undertakes is a governmental activity. Now defence is, undoubtedly, one of the 'sovereign and inalienable' functions of the State. No one will dispute that it is a true governmental function. But then whether the production of arms and equipment for the defence personnel is a sovereign function, or should it be treated as a private function Should Hindustan Aeronautics Limited which manufactures aeroplanes and other equipment for our Armed Forces but which is a company incorporated under the Companies Act, be characterised as a Corporation performing a sovereign function, of should it be called a Corporation carrying on a commercial activity It may well be argued that in some countries, like United States of America, even the defence equipment is manufactured in the private sector and sold to the Government. Thus, it is not the form that matters, but the reality; and the tests a forementioned are the test designed to ascertain the reality, ignoring the mask or the form, or the screen.'

14. Applying the test evolved by the Supreme Court and affirmed in the said Full Bench decision, it is evident that the respondent-Corporation must be treated as an instrumentality or agency of the Central Government and, therefore, amenable to the writ jurisdiction of this Court. Indeed, though an objection has been raised in the counter-affidavit regarding the maintainability of this writ petition, this contention has not been seriously urged before me by the respondents. Once the Corporation falls within the definition of 'State', it is bound to, and expected to, act reasonably and fairly. The duty to act fairly and reasonably involves and implies the obligation to give an opportunity to the person concerned to put forward his case, where his services are terminated on account of, or on the basis of, certain suspicion or allegation, as the case may be.

15. The respondents rely upon a judgment rendered by me in W.P. No. 3128/1981 dated 6th July, 1981. But, that was a case where the appointment was purely under a contract, and there were no rules and regulations governing the conditions of service in that Corporation. Here too, no doubt, there is a contract, and of service in that corporation hereto, no doubt there is a contract of service; but, that is made subject to the rules and regulations including para. 47, referred to above, and the question in this case is to reconcile the two powers in para. 47; whereas in W.P. No. 3128/81 the simple question was whether the termination effected in terms of the contract of service can be questioned in writ petition or not.

16. Further, the contract entered into by the petitioner is a standardised contract which every employee of the Corporation has to enter into. It is the rules and regulations framed by the Corporation which are of real relevance than the contract.

17. I am not unaware of certain decisions of the Supreme Court where it has been held that, where certain alleged misconduct is only the motive but not the foundation of the order of termination, 1 the employee cannot be permitted to argue that the removal being really by way of punishment the disciplinary procedure should be followed. Indeed, in one case, disciplinary proceedings were also commenced but stopped at an early stage and then the power of termination simpliciter was invoked; and still the Court upheld the employer's action. Firstly, the decisions on the said question are not uniform. Secondly, the question which is posed herein did not directly arise for consideration in any of those cases. Counsel for the respondents could not bring to my notice any case where the question now posed had directly arisen and/or was decided. Over the years the law has advanced appreciably, and Art. 14 has acquired a new dimension. As pointed out by Bhagwati, J., in Ajay Hasia v. Khalid Mujib, [1981 I-L.L.J. 103]

'...... Unfortunately, in the early stages of the evolution of our constitutional law, Art. 14 came to be identified with the doctrine of classification because the view taken was that the article forbids discrimination and there would be no discrimination were the classification making the differential fulfills two conditions, namely, (i) that the classification is founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that the differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E. P. Royappa v. State of Tamil Nadu, [1974 I L.L.J. 172] that this Court laid a bare new dimension of Art. 14 and pointed out that article has highly activist magnitude and it embodies a guarantee against arbitrariness ......'.

It was held in Royappa's case (supra) that 'Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment : 'and in Maneka Gandhi's case (supra), the Court affirmed : 'Art. 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness. Pervades Art. 14 like a brooding omnipresence ......'. This principle has been repeatedly affirmed in several subsequent cases, to all of which it is not necessary to refer, except to one in Government Branch Press v. D. B. Belliappa, [1979-I L.L.J. 156], the following statement occurs :

'It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic policy is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Arts. 14 and 16(1). Article 16(1) guarantees' Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 'Moreover, according to the principle underlying S. 16 of the General Clauses Act, the expression 'appointment' used in Art. 16(1) will include termination of or removal from service, also'.

18. Following the above principles, I am of the opinion that any interpretation of Rule 47 which tends to confer an absolute power upon the Corporation to choose to follow either procedure mentioned therein, would be the very negation of reasonableness and equal protection of laws enshrined in Arts 14 and 16 of the Constitution. I am, therefore, of the opinion that where the service of a person is sought to be dispensed with on account of certain alleged misconduct (which may include gross negligence), the employer cannot be permitted to exercise the power of termination simpliciter. It has to necessarily hold a disciplinary enquiry into the allegations, and pass orders, depending upon the result of such enquiry.

20. Following the above principle, it must be held that the order terminating the petitioner's service by giving three months' notice under the first part of Rule 47 and in terms of clause 5 of the contract of service, is bad. But, I am of the opinion that, having regard to the facts of the case as stated by the petitioner himself, this is not a case where this Court should interfere in exercise of its discretionary jurisdiction under article 226 of the Constitution of India. I have set out hereinbefore the petitioner's version with respect to what happened on 22nd June 1981. Of course, the petitioner does not refer in his writ petition to the illness of the deceased's daughter; and when the same was referred to in the counter-affidavit he has tried to explain it away. Be that as it may, his admitted conduct on that day is clearly unbecoming of a doctor. When an officer of the Corporation, who had already suffered two heart-attacks was taken ill and the petitioner was informed of the same immediately, and who the residence of the patient is within 200 meters from the petitioner's house, it was really callous on the part of the petitioner to refuse to go to the patient's residence and content himself by merely advising him to be taken to be taken to the hospital. Even if it is assumed that the petitioner made some arrangements for taking the patient to the hospital, still it cannot be overtooked that he failed to go to the patient's residence when informed of the illness, and further that he did not bother to go to the hospital to see the patient after he was admitted there. Similarly, he refused to go when, on the same day, the daughter of the deceased took ill. I am totally disinclined to exercise the discretionary power of this Court under article 226 of the Constitution of India, in the aid of such a person, inspite of the fact that, legally speaking, the termination is bad for the reasons stated hereinbefore.

21. The writ petition, accordingly, fails and is dismissed with costs. Advocate's fee Rs. 250 only.


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