ORDER:
The petitioner was initially appointed as Junior Technical Assistant on 12.02.1992 in Bharat Dynamics Limited (A Government of Indian Enterprise), Ministry of Defence, respondent No.1 herein. Thereafter, he was promoted as Technical Assistant in the year 1995. He submitted resignation on 05.06.2002 and the same was accepted by the competent authority on 27.07.2002.
The petitioner made a representation, dated 09.01.2003, to the Managing Director with a prayer to permit him to withdraw his resignation. Quite good amount of correspondence as well as discussion with the participation of union leaders appears to have taken place. Ultimately, through order, dated 02.12.2004, the Managing Director appointed the petitioner as Technical Assistant afresh. The petitioner joined the duty on 07.12.2004.
A charge sheet, dated 22.02.2007, was served upon the petitioner alleging acts of misconduct and misrepresentation on his part. This was followed by a show cause notice, dated 26.08.2008, proposing the punishment of termination from service. The petitioner filed W.P.No.19848 of 2008 challenging the said proceedings. It appears that the respondents have also realized that the charges framed against the petitioner cannot be sustained. Almost a sort of concession was made before this Court, which, in turn resulted in an order, dated 18.04.2009, through which the charge sheet as well as the show cause notice were quashed. However, it was left open to the respondents to take action against the petitioner, in accordance with law.
Respondent No.2 issued show cause notice, dated 28.05.2009, alleging that the appointment of the petitioner through order, dated 02.12.2004, is contrary to Rule 38.6 of the Bharat Dynamics Limited Recruitment and Promotion Rules (for short 'the Rules'). The petitioner was required to explain as to why the appointment through order, dated 02.12.2004, be not cancelled. This writ petition is filed challenging the show cause notice.
During the pendency of the writ petition, the petitioner submitted his explanation and taking the same into account, respondent No.2 passed an order, dated 22.06.2009, terminating the services of the petitioner. The petitioner sought amendment of the prayer by filing W.P.M.P.No.16907 of 2009. This Court ordered the same on 23.04.2010. Thus, the petitioner challenges the order of termination, dated 22.06.2009.
The petitioner contends that though Rule 38.6 of the Rules provides for subjecting an employee, whose resignation was accepted, to selection before he is reappointed, his reappointment through order, dated 02.12.2004, cannot be found fault with. He submits that the necessity for subjecting him to selection was not felt, obviously because he was holding that very post on the basis of selection; till he resigned. His further contention is that failure to conduct the selection cannot be said to be any act of misconduct on his part, leading to termination. He stated that he is prepared to undergo selection even, at this stage.
The respondents filed a counter-affidavit opposing the writ petition. They raised an objection as to the maintainability of the writ petition. It is alleged that Rule 38.6 of the Rules prescribes a detailed procedure, to be followed, whenever an employee, who resigned from the service of the organization, is to be reappointed. According to them, the prescribed procedure was not followed and the appointment of the petitioner afresh, cannot be sustained in law.
Sri G.Vidya Sagar, learned counsel for the petitioner, submits that the petitioner was holding the post of Technical Assistant by the time he resigned and on a consideration of the representation made by him, the management of the organization thought it fit to reappoint him, to that very post. The learned counsel further submits that the necessity to subject such an employee to selection is felt mostly, when the appointment is to a different category of post and not to the one from which he resigned. He contends that even assuming that the selection process is mandatory in such cases also, the respondents could certainly have subjected the petitioner to selection, instead of terminating his services. The learned counsel also submits that the procedure adopted by the respondents in terminating the services of the petitioner does not accord with the one prescribed under the Rules.
Sri S.R.Ashok, learned Senior Counsel for the respondents, submits that reappointment of the petitioner is patently illegal and is opposed to Rule 38.6 of the Rules. He contends that though the petitioner cannot be said to be in any way responsible for the failure in subjecting him to selection, once it emerges that a mandatory procedure was not followed, there is no alternative except to terminate the services of the petitioner. The learned Senior Counsel submits that the requirement to follow the procedure under the Rules for termination would arise if only it is by way of disciplinary action. According to him, no patent illegality has crept into the proceedings. He places reliance upon the judgment of the Hon'ble Supreme Court in State of Bihar v. Upendra Narayan Singh1.
The petitioner entered the service of the respondent organization, way back in the year 1992 and by the time he left the organization by submitting resignation, he had put in ten years of service. The circumstances under which he submitted his resignation or those under which it was accepted are not immediately before this Court nor are they relevant for the purpose of this writ petition. About six months after his resignation was accepted, the petitioner submitted a representation, with a prayer to reappoint him into service. Correspondence and negotiations went on, for about one year. Ultimately, through an order, dated 02.12.2004, an offer was made by the respondents to the petitioner, to join the service by indicating several conditions. The petitioner accepted those conditions and has joined the service on 07.12.2004.
It appears that the Ministry of Defence has taken exception to the re- induction of the petitioner and the same said to be one of the reasons for relieving of an incumbent from the Office of the Managing Director. This was followed by issuance of a charge sheet, dated 22.02.2007, and a show cause notice, dated 26.08.2008, to the petitioner. W.P.No.19848 of 2008 filed by the petitioner, challenging the same, was allowed almost on a concession made by the respondents. The charge sheet and the show cause notice were set aside, leaving it open to the respondents, to proceed in accordance with law. It is in this background that another show cause notice, dated 28.05.2009, was issued to the petitioner. It reads as under: "Whereas the Management in view of the liberty granted by the Hon'ble High Court intend to terminate the illegal appointment of Shri B.Shashidar which is in violation of Rule 38.6 of the BDL R & P Rules by issuing the instant notice.
Therefore, Shri B.Shashidar is hereby advised to submit his explanation to the undersigned for the above mentioned illegality in his re-appointment within 7 days from the date of receipt of this show cause notice failing which it would be treated as he has no explanation to offer and proceed with the issuance of termination order." The only allegation made against the petitioner is that his appointment is in violation of Rule 38.6 of the Rules. The petitioner submitted his explanation. Final order, dated 22.06.2009, was passed terminating the services of the petitioner. After referring to the show cause notice and the explanation submitted by the petitioner, respondent No.2 passed the following order:
Shri B.Shashidar was not interviewed by the duly constituted Selection Board at the time of his fresh appointment. According to Rule 38.6 of BDL R & P Rules there is no exception to any person. Therefore, it is the specific violation of the Rule 38.6 of BDL R & P Rules in this matter.
The explanation submitted by Shri B.Shashidar is not satisfactory in nature.
Therefore, in view of the above, after applying my mind as a Competent Authority, I came to conclusion that there are no fresh points to reconsider his appointment. Hence, Shri B.Shashidar have no explanation to offer with regard to the violation of the Rule 38.6 i.e. which is mandatory hence I as Competent Authority hereby terminate his services with immediate effect."
It needs to be seen as to whether the impugned order, dated 22.06.2009, suffers from any illegality or factual infirmity. The only basis on which the appointment of the petitioner was terminated is that it is in violation of Rule 38.6 of the Rules. The Rule reads as under: "The employees who have resigned from the service of the company are not normally to be re-appointed. However, there is no objection to consider selectively and on merit re-appointment of personnel who had resigned from the services of the company for prosecuting higher studies or other bona fide reasons to posts remaining vacant for want of suitable personnel for promotion i.e. where there is no valid promotion to the post/grade in question during the financial year. Should these conditions be satisfied, personnel for re- employment shall be interviewed by a duly constituted selection board. Such personnel may also be considered for appointment against open selection advertisement."
The Rule, in a way discourages reappointment of an employee who has been relieved, on submission of resignation. However, exceptions are carved out, for re-induction of such employees subject to certain conditions. The requirement under the Rule to subject such a person, to interview by duly constituted selection board becomes applicable to cases where he is proposed to be appointed against any post other than the one which, he held before he resigned. This view gains strength from the purport of the last sentence of the Rule; which is to the effect that such personnel can be considered for appointment against open selection advertisement also. To put it differently, selection may not be of immediate relevance, in case the appointment of a former employee is to the same post which was held by him, before he resigned.
Assuming that the interview by a selection board is essential, even in cases where the appointment of the resigned employee is to the post previously held by him, the violation thereof cannot be said to be incurable. The defect or omission cannot be compared to the instances of omission of fraud and misrepresentation, which would go to the route of the matter. In case the respondents felt that the petitioner ought to have been subjected to interview, they could have straightway required him to undergo such interview, by constituting a selection board.
In Upendra Narayan Singh's case (1 supra), the judgment referred to supra, the Hon'ble Supreme Court dealt with the cases of appointments which were made in flagrant violation of the prescribed procedure and without verifying the qualifications also. It was found that the record relating to the qualifications of the candidates were destroyed. That was a clear case of fraud and misrepresentation. Obviously, appointments through such methods cannot be sustained under any circumstances. In the instant case, no such allegations are made. The petitioner served the organization for a period of ten years. His entitlement to be promoted as Technical Assistant was tested in accordance with the Rules, way back in the year 1995 by subjecting him to selection. After promotion, he continued in service for several years. He submitted resignation and came with a request to permit him to rejoin the service, six months thereafter. Obviously being under the impression that the petitioner was not only subjected to selection in the year 1995 when he was promoted to the post of Technical Assistant, but also has worked in that post for seven years, the Managing Director did not feel the necessity of subjecting him to interview once again. In case a different opinion is possible and it emerges that the selection provided for under Rule 38.6 of the Rules is mandatory, the reasonable approach would have been to subject the petitioner to selection by a committee constituted for that purpose. Therefore, the termination of the petitioner on the sole ground that his reappointment was not preceded by the selection cannot be sustained in law.
There is another aspect of the matter. The Rules prescribe a detailed procedure, to be followed whenever an employee is to be terminated from service, or other major punishment is to be imposed. The cessation of an individual in the organization can be either by submission and acceptance of resignation or by termination on disciplinary grounds. There does not appear to this Court, any other method through which the service of an employee can be brought to an end. The action in the instant case, has flown from the management. The show cause notice was issued and no charges whatever were framed, much less any disciplinary enquiry was conducted. When such procedure is mandatory even where an employee has committed acts of serious misconduct or dereliction of duties, omission to follow such procedure on an allegation for which no role can be ascribed to the petitioner, cannot be sustained in law. Further, taken that the petitioner was not interviewed; whose fault it was? Can the petitioner be axed for a lapse or omission on the part of the organization? Did the petitioner evade interview? Would it be wise to subject a person to an ordeal which he has successfully gone through and gained years of experience thereafter? It would be certainly difficult, if not impossible for the respondents to find satisfactory answers to these questions. However, the petitioner cannot be made to feel the brunt.
Therefore, the writ petition is allowed and the impugned order is set aside. It is, however, made clear that it shall be open to the respondents to subject the petitioner to selection as contemplated under Rule 38.6 of the Rules. There shall be no order as to costs.