The Patna High Court ruled that merely participating in a strike cannot automatically lead to termination of service unless the strike is illegal or the employee is guilty of misconduct. The Court held that termination without enquiry, notice or due process violates principles of natural justice and constitutional rights.
The Patna High Court has clearly ruled that merely taking part in a strike cannot, by itself, become a valid reason to terminate an employee from service, especially when there is no finding that the strike was illegal or that the employee committed any misconduct.
The Court made this important observation while deciding a batch of writ petitions filed by employees whose services were terminated only because they participated in a strike organised by their employees’ union.
The case was heard by a Single Bench of Justice Alok Kumar Sinha, who strongly criticised the action of the employer and held that such terminations were illegal, arbitrary and against settled principles of law.
The Court observed,
“Even otherwise, participation in a strike, by itself, cannot automatically justify termination of service, particularly in the absence of any finding of illegality of the strike or misconduct attributable to the petitioners. If the respondents intended to treat the alleged absence as misconduct or abandonment of service, the same could not have been presumed unilaterally. A proper domestic enquiry should have been held giving opportunity to the petitioners to defend themselves.”
The High Court noted that the employees were removed from service immediately after a settlement was reached between the University and the employees’ union. The termination orders relied solely on the strike period, which the Court found to be unfair and punitive in nature.
According to the Court, even though the employer tried to show the termination as a simple disengagement of daily wage workers, in substance it amounted to punishment, which is not legally permissible.
The petitioners in this case had approached the Court seeking quashing of an office order issued by Magadh Mahila College, Patna University, under the signature of the Head Clerk, acting on alleged telephonic instructions from the Vice-Chancellor. The order terminated their services for participating in a strike held between 10.08.2015 and 09.09.2015.
The petitioners argued that the termination order was completely arbitrary, illegal and stigmatic, and violated Articles 14, 16 and 21 of the Constitution of India.
They pointed out that a binding settlement had been entered into between the University and the employees’ union, which was duly approved by the Vice-Chancellor, and this settlement specifically provided that no employee would be victimised for participating in the strike.
It was further argued that despite this settlement, only the petitioners were selectively terminated, while other similarly placed daily wage and ad-hoc employees, including those junior to them, were allowed to continue in service. This, according to the petitioners, amounted to clear hostile discrimination.
While examining the matter, the High Court rejected the argument that the petitioners should have been asked to approach the Industrial Disputes Act forum. The Court held that writ jurisdiction was fully maintainable in this case since the challenge was to arbitrary administrative action violating constitutional rights.
The Court observed,
“… the availability of a remedy under the Industrial Disputes Act, 1947, cannot be said to be an equally efficacious remedy in the facts of the present case, where the petitioner seeks judicial review of administrative action on constitutional and legal grounds. In such circumstances, relegating the petitioner to an alternative forum would amount to denial of effective and immediate relief.”
The Court made it clear that whether an employee is permanent, daily wager or casual worker, removal from service for participating in a strike amounts to alleging misconduct.
Such an allegation cannot be made without following due process. The Court categorically stated that a show cause notice, charge-sheet and proper domestic enquiry are mandatory in such situations.
The Court observed,
“No such procedure has been carried out in the present case which emerges as an admitted position. In such view of the matter, 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. Such an allegation necessarily required a proper enquiry and adherence to the principles of natural justice. 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”.
The High Court further held that since the termination was based on alleged absence during the strike period, and since the strike itself was covered by a settlement approved by the competent authority, the termination order could not stand in law.
The Court also found serious fault with the claim that the termination was done based on telephonic instructions, observing that such instructions have no legal value.
The Court stated,
“Further, the assertion that the disengagement was effected on the basis of alleged telephonic instructions, without any formal written order of the competent authority, only reinforces the illegality of the action. Termination of service, particularly one having civil consequences, must emanate from a competent authority through a lawful and reasoned order”.
The Court went on to observe that even if the termination is assumed to be non-stigmatic, it would still amount to retrenchment under the Industrial Disputes Act. Since the mandatory conditions under Section 25-F were not followed, the termination was illegal from the very beginning.
The Court held,
“It is trite that even daily wage employees are entitled to protection against arbitrary State action and they are certainly entitled to equal treatment and fairness in disengagement. The impugned action, viewed in light of the continued engagement of juniors and similarly situated persons, therefore cannot be sustained. Further, the respondents have not placed on record any reasons, much less recorded reasons, justifying departure from the statutory norm of last-come-first-go. In the absence of such recorded justification, the selective retrenchment of the petitioner, while retaining juniors, is in direct contravention of Section 25-G of the Industrial Disputes Act. It is well settled that compliance with Section 25-G is not an empty formality but a substantive safeguard intended to prevent arbitrary and discriminatory retrenchment. Any retrenchment effected in violation of the said provision is rendered legally unsustainable”.
The Court further held that retaining junior employees while terminating seniors violated the constitutional guarantee of equality. It ruled that such action was arbitrary, discriminatory and clearly violative of Articles 14 and 16 of the Constitution of India.
The High Court also rejected the University’s reliance on government policies regarding appointment embargo and outsourcing, noting that these policies were neither applied uniformly nor shown to have resulted in actual abolition of posts or outsourcing of work.
The Court held that such executive instructions cannot be used retrospectively to defeat legitimate expectations of employees.
The Court observed,
“Once the petitioners were found eligible and recommended for absorption by a competent committee in 2003, the respondent University could not indefinitely postpone or deny implementation by subsequently invoking policy decisions, particularly when those very policies were not applied uniformly and were relaxed or bypassed in favour of other employees”.
The Court also recognised that long years of service against sanctioned posts, through a proper selection process and without any fault on the part of the employees, creates a strong equitable right for regularisation.
Finally, the Court concluded,
“Upon an anxious consideration of the rival submissions advanced on behalf of the petitioners and the respondents, the pleadings on record, the documentary evidence placed before this Court, and the findings recorded on the issues framed hereinabove, this Court is of the considered view that the action of the respondent–University in denying regularisation to the petitioners cannot be sustained in law”.
Accordingly, the Patna High Court allowed all the writ petitions, quashed the termination orders and directed Patna University to reinstate the petitioners to their respective posts.
The petitioners were represented by Advocates Sidharth Prasad, Om Prakash Kumar, Sunit Kumar, Swetang Sinha, Shashank Shekhar and Shantam Kriti.
The respondents were represented by Senior Advocate Mrigank Mauli along with Advocates Digvijay Singh, Manish Dhari Singh, Kalpana, Sidharth Prasad and Om Prakash Kumar.
Case Title:
Madhwi Jha & Ors. v. The Patna University & Ors.,
Civil Writ Jurisdiction Case No. 18289 of 2015.
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