Judgment:
S.B. Sinha, J.
1. This application is directed against an order dated December 2, 1992 (Annexure-7) passed by the Secretary, Bihar State Electricity Board, Patna (respondent No. 2) whereby and where under, the petitioner's services have been terminated.
2. The short facts relevant to be noticed in this case are as follows:-
The petitioner who is a Correspondence Clerk was transferred from the Electricity Circle, Dhanbad to the Headquarters of the Electricity Board, By another office order dated April 13, 1992 (Annexure 4) he was posted to the Regional office of the Board at Ranchi. The petitioner allegedly was relieved with effect from December 10, 1991 but he neither joined the Board's Headquarters at Patna nor joined the Regional Office at Ranchi. It appears that an advertisement was issued in a newspaper to the effect that if by September 16, 1992 the petitioner does not joint to his transferred place, proceedings for termination of his service would be taken. According to the respondents, despite the said advertisement, the petitioner did not join the Regional Office of the Board at Ranchi and thus he violated the order passed by the Board, by reason whereof it had become difficult to take disciplinary and administrative action against the petitioner, the petitioner's services were directed to be terminated in terms of Clause 28(A) of the Certified Standing Order by giving three months notice.
3. It stands admitted that prior to issuance of the aforementioned order against the petitioner, neither a disciplinary proceeding was initiated ] against the petitioner nor any notice to show cause have been given.
4. Mr. M.M. Banerjee, learned counsel appearing on behalf of the petitioner has submitted that from the tenor of the impugned order as contained in Annexure-7 to the writ petition, it would be evident that the petitioner's service have been terminated by way of or in lieu of punishment. It was further submitted that in any; event, Clauses 28(A) of the Certified Standing Order must be held to be ultra vires.
5. Learned counsel in support of his contention has placed reliance in the case of D.K. Yadav; v. J.MA. Industries Ltd. (1993- II-LLJ-696), It is not in dispute that the Bihar State Electricity Board is a State within the meaning of Article 12 of the Constitution of India. The Supreme Court in D.K. Yadav, case (supra) has held as-follows:-pp 701-702
'The law therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.
Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.
In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress (1991-I-LLJ- 395) this court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Article 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees right to life which ineludes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice are an integral part of the guarantee of equality assured by Article 14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the Court to lift the viel and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result.
It is thus well-settled law that right to life enshirned under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable .opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress (supra) the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside.'
6. The case in hand thus clearly is covered by the aforementioned decision of the Supreme Court of India. In view of the fact that the petitioner had neither been given any opportunity of hearing nor any disciplinary proceeding had been initiated against him, his services could not have been terminated by taking recourse to the purported Clause 28(A) of the Certified Standing Order. Such a provision, in view of the decision of the Supreme Court of India and as noticed hereinbefore, must be held to be unconstitutional
7. For the reasons aforementioned, this application is allowed and the impugned order as contained in Annexure 7 is quashed. However, it goes without saying that it would be open to the respondents to take disciplinary action against the petitioner, if it so desires, in accordance with law.