Sunil Kumar H M Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE RESOLUTION PASSED BYTHE R-3 DTD 27.2.2016 VIDE AT ANNXURE-C, QUASH THE R-2 IN APPEAL NO.8/201617 DTD. 9.1.2017 VIDE AT ANNEXURE-A, DIRECT THE R-3 & R-4 TO PERMIT THE PETITIONER TO WORK IN THE SAID POST.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioner filed this writ petition seeking the following prayer:

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i. To issue writ in the nature of certiorari to quash the resolution passed by the respondent No.3 dated 27.02.2016 vide at Annexure-C;

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ii. Issue writ in the nature of certiorari to quash the order respondent No.2 in appeal No.8/2016-17 dated 09.01.2017, vide at Annexure-A;

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iii. Issue writ in the nature of mandamus direct

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the respondent Nos.3 and 4 to permit the petitioner to work in the said post.

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HC-KAR

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Brief facts leading to the filing of this writ petition are

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as follows:

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The petitioner was working as a clerk cum computer operator in Santhehalli Gramapanchayath, Malur Taluk, since 2007 and on 27.02.2016, a resolution was passed by respondent No.3 and decided to remove the petitioner from service from the said post stating that, he has inserted some new entries in the demand register extract in respect of khata No.342. While conducting the proceedings, the Panchayath had noticed the said entries, they have not enquired with respondent No.4 who has inserted the new entries and some of the members who are against to the petitioner have appointed a new person favourable to them, they have decided to remove the petitioner without any reasons and without holding any enquiry, accordingly resolution has been passed on 27.02.2016. The petitioner, aggrieved by the resolution dated 27.02.2016, preferred an appeal before the Authority

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HC-KAR

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i.e. respondent No.2. The Appellate Authority

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dismissed the appeal. Hence, this writ petition.

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Heard the learned counsel for the petitioner and learned counsel for the respondents.

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Learned counsel for the petitioner submits that the respondent before passing the resolution dated 27.02.2016, terminated the petitioner from service, no notice, charge memo was issued and no enquiry was

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conducted. The said resolution passed by respondent No.3 is in violation of the principles of natural justice. He also submits that the Appellate Authority without considering the said aspect, has confirmed the resolution passed by respondent No.3. Hence, on these grounds, he prays to allow the writ petition.

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Per contra , learned counsel for respondent Nos.3 to 5 submits that respondent Nos.3 to 5 received a complaint against the petitioner. The show cause notice was issued and the petitioner did not reply to

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HC-KAR

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the show cause notice. Respondent No.3 has passed a resolution to terminate the service of the petitioner. The action of respondent No.3 in passing the resolution is in accordance with law. Hence, on these grounds, she prays for dismiss the petition.

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Perused the records and considered the submissions of the learned counsel to the parties.

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There is no dispute that the petitioner was appointed as a computer operator in 26.06.2007. For last more than 9 years, he is working without any complaint. Respondent No.3 received a complaint against the petitioner alleging that he has inserted some new entries in the khata. Respondent No.3 on the basis of the complaint, issued a show cause notice to the petitioner.

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It is the case of respondent No.3 that a show cause notice was issued, but the petitioner contended that no show cause notice was received by him. To show that

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HC-KAR

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a show cause notice was issued and served on the petitioner, respondent No.3 has not placed any material. Respondent No.3, without issuing the charge memo and without conducting an enquiry, has passed the resolution to terminate the petitioner from service.

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The said impugned resolution is in violation of the principles of natural justice. The petitioner, aggrieved by the impugned resolution, preferred an appeal before respondent No.2. Respondent No.2 without considering the said aspect, dismissed the appeal. The impugned resolution passed by respondent No.3 is contrary to the exposition of law laid down by the Hon'ble Apex Court in the case of Maneka Gandhi Vs. Union of India¹ , wherein the Hon'ble Apex Court held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of

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1 1978 (2) SCR 621

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HC-KAR

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nation. The tests have to be pragmatic otherwise they

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would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority. It is thereby conclusively held by the Hon'ble Apex Court that principles of natural justice are part of Article 14 and procedure prescribed by law must be just, fair and reasonable.

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The power to terminate the service of the petitioner, involves civil consequences and therefore, the procedure contemplated ought to have been followed by the respondents. The nature and extent of adhering to the principles of natural justice depends upon the facts and circumstances, but at the same time, it is also well accepted principle of law that the principles of

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HC-KAR

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natural justice can be read into a provision, unless applicability of such principles of natural justice is expressly or impliedly excluded.

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The court cannot ignore the legislative mandatory requirement of giving a reasonable opportunity of being heard before an order is made. As observed above, the impugned resolution passed by respondent No.3 was in violation of the principles of natural justice. Hence, on this ground alone, the impugned resolution dated 27.02.2016 is liable to be set aside.

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