Case Note & Summary
The petitioner, an Accountant appointed on temporary basis in the Town Municipal Council, Badami, was terminated from service on 27-07-2018. She had been in continuous service since 03-10-2008. Along with other similarly situated employees, she had earlier approached the High Court in W.P. No.103135/2016 seeking regularization, and the court had directed consideration for regularization while protecting their services from disturbance. Subsequently, a show cause notice dated 04-06-2018 was issued alleging unauthorized absence, to which she replied on 13-06-2018. Despite her reply, the third respondent terminated her services without holding any inquiry. The petitioner challenged the termination before the High Court under Articles 226 and 227 of the Constitution, seeking quashing of the termination order and reinstatement. The writ petition was initially allowed on 15-09-2021 with a direction to reinstate the petitioner with 50% back wages. The State appealed in Writ Appeal No.100309/2022, and the Division Bench remanded the matter for fresh consideration. After remand, the learned Single Judge reconsidered the case. The petitioner argued that the termination was punitive and founded on allegations of misconduct, thus requiring a proper inquiry even for a temporary employee. The respondents contended that the petitioner was a temporary employee and no inquiry was necessary, and that the termination was simpliciter. The Court, relying on precedents such as Anoop Jaiswal v. Government of India, Nelap Singh v. State of U.P. (1985) 1 SCC 56, and Om Prakash Goel v. H.P. Tourism Development Corp. Ltd. (1991) 3 SCC 291, held that even a temporary employee cannot be terminated without inquiry if the order is based on misconduct allegations. The Court observed that the termination order did not mention the period of alleged absence and no inquiry was conducted; it was a classic case of a camouflage order intended to circumvent the earlier protection granted by the court. Accordingly, the termination order was set aside. The petitioner was entitled to reinstatement forthwith with 50% back wages from the date of termination until reinstatement. Liberty was reserved to the respondents to hold an inquiry, if they so chose, and pass appropriate orders in accordance with law within twelve weeks. The writ petition was allowed with no order as to costs.
Headnote
A) Service Law - Termination of Temporary Employee - Inquiry - Constitution of India, Art. 226, 227, 311(2) - The termination order was issued on the basis of allegation of unauthorized absence without holding any inquiry - The Court found that the order was a camouflage for punishment and thus invalid - Held, even a temporary employee cannot be terminated without inquiry when the termination is founded on allegations of misconduct; the order was set aside with reinstatement and 50% back wages, with liberty to the employer to hold a proper inquiry if desired (Paras 6-9 of the order dated 15.09.2021 adopted in this proceeding).
Issue of Consideration
Whether the termination of a temporary employee on the ground of alleged unauthorized absence without holding any inquiry is valid in law?
Final Decision
The writ petition was allowed. The termination order dated 27-07-2018 was set aside. The petitioner was directed to be reinstated forthwith as Accountant with continuity of service. The respondents were directed to pay 50% of the back wages from the date of termination till the date of reinstatement. Liberty was reserved to the respondents to hold an inquiry, if they deemed it necessary, and pass appropriate orders in accordance with law within twelve weeks from the date of the order. No costs were ordered.
Law Points
- Termination based on misconduct without inquiry is invalid
- Court can lift the veil to see if order is a camouflage for punishment
- Temporary employee cannot be terminated without inquiry if order is founded on allegations
- Article 311(2) principles apply even to temporary employees
- Reinstatement with back wages is appropriate remedy for illegal termination
Case Details
2023 LawText (KAR) (12) 29
Writ Petition No.47144 of 2018 (S-RES)
Vinay S. Koujalagi, V.S. Kalasurmath, Prakash Hosamane
State of Karnataka, Town Municipality Council Badami, Deputy Commissioner District Town Municipal Cell Bagalkot
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Nature of Litigation
Writ petition challenging termination of a temporary employee from the post of Accountant in a Town Municipal Council on grounds of unauthorized absence, alleging that the termination was punitive and made without inquiry.
Remedy Sought
Petitioner sought a writ of certiorari to quash the termination order dated 27-07-2018 and a writ of mandamus to reinstate her into service as an Accountant with all consequential benefits.
Filing Reason
The petitioner was terminated after being served a show cause notice regarding unauthorized absence; she contended that the termination was a camouflage for punishment to circumvent an earlier court order protecting her services and that no inquiry was held despite her reply denying the allegations.
Previous Decisions
The writ petition was initially allowed by a Single Judge on 15-09-2021 ordering reinstatement with 50% back wages. On appeal by the State in Writ Appeal No.100309/2022, a Division Bench of the High Court set aside that order and remanded the matter for fresh consideration.
Issues
Whether the termination of a temporary employee based on alleged misconduct without holding a departmental inquiry is valid in law?
Whether the termination order was a mere smokescreen or camouflage for an order of punishment, thereby entitling the petitioner to reinstatement?
Submissions/Arguments
Petitioner contended that even a temporary employee cannot be terminated on allegations of misconduct without a proper inquiry; the termination order did not specify the period of absence and was passed without considering her reply; the order was a camouflage to circumvent the earlier court direction protecting her services.
Respondents argued that the petitioner was a temporary employee and no inquiry was necessary; her reply to the show cause notice was unsatisfactory; the termination order was a termination simpliciter and did not cast any stigma, thus no inquiry was required.
Ratio Decidendi
Even a temporary employee cannot be terminated without an inquiry if the termination order is founded on allegations of misconduct. If the order, though styled as termination simpliciter, is in reality a punitive action or a camouflage to avoid an inquiry under Article 311(2) of the Constitution, the court will lift the veil and declare it void. The employee is then entitled to reinstatement with back wages, subject to any further inquiry the employer may lawfully conduct.
Judgment Excerpts
Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employees.
The termination order cannot be sustained. It is a classic case of camouflage. The petitioner is entitled to succeed. The writ petition is allowed.
Procedural History
The petitioner was appointed as a temporary Accountant on 03-10-2008 in the Town Municipal Council, Badami. Along with others, she filed W.P. No.103135/2016 seeking regularization of service; the High Court by order dated 20-02-2017 directed the respondents to consider her case for regularization and not to disturb her service until then. Subsequently, a show cause notice dated 04-06-2018 was issued alleging unauthorized absence; she replied on 13-06-2018. Her services were terminated on 27-07-2018 without an inquiry. She filed the present writ petition in 2018 challenging the termination. The petition was allowed on 15-09-2021 with reinstatement and 50% back wages. The State appealed in Writ Appeal No.100309/2022; the Division Bench allowed the appeal and remitted the matter for fresh consideration. The writ petition was reheard and again allowed by this order dated 20-12-2023.
Acts & Sections
- Constitution of India: Article 226, 227, 311(2)
