Safiya Malik

The High Court of Patna, Single Bench of Justice Alok Kumar Sinha set aside the termination of daily-wage non-teaching staff engaged at a constituent college of a state university and directed their reinstatement within four weeks with continuity of service, seniority, and consequential benefits; it also directed their regularisation from 17 April 2015. The employees had been removed after being treated as absent during an employees’ union strike. The Court held that participation in a strike, without any finding that the strike was illegal or that misconduct was attributable to the employee, cannot alone justify termination. It added that treating strike-related absence as misconduct or abandonment requires due process, including a show-cause notice and a proper domestic enquiry.

The petitions were filed by daily wage Class-III and Class-IV employees engaged between 1995 and 1997 in Magadh Mahila College, a constituent unit of Patna University. They challenged an office order dated 19.09.2015 issued under the signature of the Head Clerk, purportedly on the direction of the Principal and based on alleged telephonic instructions of the Vice-Chancellor, by which their services were discontinued. The stated basis for the action was the petitioners’ alleged participation in an employees’ union strike between 10.08.2015 and 09.09.2015.

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The petitioners contended that their disengagement was arbitrary, stigmatic, and violative of Articles 14, 16, and 21 of the Constitution, particularly in view of a settlement dated 08.09.2015, approved on 09.09.2015, which assured that no employee would be victimised for participation in the strike. They further relied upon their long and continuous engagement against sanctioned posts, the recommendations of the Senate Committee for Absorption dated 05.11.2003, and the alleged retention of junior and similarly situated employees.

The respondents opposed the petitions on the ground that the petitioners were daily wage employees appointed after prescribed cut-off dates and were not entitled to continuation or regularisation, relying on State Government policy embargoes and restrictions on appointments.

The Court examined the objection relating to maintainability and observed that “the rule requiring exhaustion of an alternative statutory remedy is a rule of discretion and self-restraint, and not a rule that ousts the jurisdiction of the High Court under Article 226.” It further recorded that “the existence of an alternative remedy does not operate as an absolute bar to the exercise of writ jurisdiction, particularly where the impugned action suffers from lack of jurisdiction, violation of principles of natural justice, arbitrariness, or infringement of fundamental rights.” The Court stated that “the grievance pertains to the legality and validity of the termination/disengagement itself, which is alleged to be arbitrary, discriminatory, violative of principles of natural justice, and issued without authority of law,” and therefore held that “the writ petition cannot be dismissed solely on the ground of availability of an alternative remedy.”

On the nature of the impugned order, the Court observed that “the alleged absence of the petitioners from duty during the period 10.08.2015 to 09.09.2015 has been attributed by the respondents to their participation in a strike.” It recorded that “the said strike culminated in a settlement dated 08.09.2015, which was duly approved by the Vice-Chancellor on 09.09.2015,” and that “a material term of the said settlement was that no adverse or punitive action would be taken against the employees for participation in the strike.” The Court stated that “once such a settlement stood approved by the competent authority, the respondents were estopped in law from initiating or continuing any adverse action founded upon the very conduct which stood condoned by the settlement.”

The Court, upon reproducing the impugned office order, observed that “from the reading of the above quoted order, it is clear that on the telephonic instructions issued by the Vice-Chancellor of the University, the petitioners have been removed from service for having participated in strike called by the employees union.” It recorded that “any employee whether daily wager or casual employee or permanent employee, if he is removed for having participated in strike, it tantamounts to alleging misconduct against the employee,” and that such action “necessarily requires that the employee should have been visited with show cause followed by charge-sheet and proper domestic enquiry.” The Court found that “no such procedure has been carried out in the present case which emerges as an admitted position.”

The Court further held that “Annexure-18 dated 10.09.2015 being stigmatic order not preceded by issuance of show cause or charge-sheet or holding of enquiry becomes totally illegal.” It recorded that “the impugned termination, having been effected without issuance of any charge sheet, without affording an opportunity of hearing, and without any enquiry, is thus procedurally infirm.”

Even assuming the termination to be non-stigmatic, the Court observed that “termination of service of a daily wage employee falls within the ambit of retrenchment unless it squarely falls within the statutory exceptions.” It recorded that “none of the exceptions to Section 2(oo) of the Industrial Disputes Act are attracted in the facts of the present case.” The Court stated that “non-compliance with Section 25-F renders the retrenchment void ab initio and legally unsustainable,” and found that “it is not the stand of the respondents that any notice pay or retrenchment compensation was paid to the petitioners.”

On the principle of “last-come-first-go,” the Court observed that “the respondents have failed to explain as to why the petitioners only were discontinued while the similarly situated daily wage employees were retained.” It recorded that “there is no assertion that the petitioners were junior-most, nor is there any material to suggest that her disengagement was necessitated due to abolition of post, lack of work, or administrative exigency.” The Court held that “the selective discontinuation of the petitioners, despite their long-standing service, clearly demonstrates a departure from the principle of last-come-first-go.”

While examining the claim for regularisation, the Court observed that “the engagement of the petitioners cannot be characterised as a backdoor entry or an illegal appointment.” It recorded that “their initial engagement was preceded by issuance of an advertisement, consideration by a duly constituted Selection Committee, and approval of the competent appointing authority.” The Court noted that “the petitioners were, thus appointed against sanctioned vacant posts and have continuously worked on those posts since 1995–1997, discharging duties which are admittedly perennial in nature.”

The Court recorded that “once such a recommendation was made by a competent statutory body, the petitioners acquired a legitimate and enforceable expectation that the same would be implemented in a fair, uniform and non-discriminatory manner.” It held that “selective and arbitrary implementation of the said recommendation strikes at the very root of Article 14 of the Constitution.”

Finally, the Court concluded that “the action of the respondent–University in denying regularisation to the petitioners cannot be sustained in law,” and that “the petitioners satisfy the parameters recognised by law for claiming regularisation.”

The Court directed that “the impugned termination order dated 19.09.2015 is set aside/quashed,” and further ordered that “all the petitioners shall be treated as continuing in service from the date of their termination, for all purposes, including seniority and continuity in service.”

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“The respondent University shall reinstate the petitioners to their respective posts, or to posts involving duties substantially similar to those previously discharged by them, within a period of four weeks from the date of the judgment. The entire period of absence from the date of termination until the date of actual reinstatement shall be treated as continuous service for all purposes,” entitling the petitioners to “all consequential benefits, including seniority and eligibility for promotion, if any.”

“The petitioners shall be absorbed/regularized against the respective sanctioned posts on which they were working immediately prior to their termination,” and clarified that “such absorption/regularization shall take effect from 17.04.2015.” The petitioners shall be entitled to “all consequential monetary and other benefits available to a regular employee” from the said date.

“Both the writ applications are allowed in the aforesaid terms,” and that “all pending interlocutory application(s) stand disposed of,” with “no order as to cost.”

Advocates Representing the Parties

For the Petitioners: Mr. Sidharth Prasad, Advocate; Mr. Om Prakash Kumar, Advocate; Mr. Sunit Kumar, Advocate; Ms. Swetang Sinha, Advocate; Mr. Shashank Shekhar, Advocate; Mr. Shantam Kriti, Advocate

For the Respondents: Mr. Digvijay Singh, Advocate; Mr. Mrigank Mauli, Senior Advocate; Mr. Manish Dhari Singh, Advocate; Mrs. Kalpana, Advocate

Case Title: Madhwi Jha & Ors. v. Patna University & Ors.
Case Number: Civil Writ Jurisdiction Case Nos. 18289 of 2015 and 6125 of 2015
Bench: Justice Alok Kumar Sinha