# A. Dubey v. D.B.E.O., Sonebhadra & another

- **Citation:** (1999) 3 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/a-dubey-v-d-b-e-o-sonebhadra-another-39396
- **Pages:** 7

## Text

242 THE INDIAN LAW REPORTS [1999
3.
The counsel for the petitioner urged that recommendation was
made in his favour by the authorities that a sympathetic view should
be taken in favour of the petitioner. On the other hand the learned
standing counsel had supported the order of respondents. Since the
petitioner concealed the fact of his earlier appointment and obtained
appointment as untrained teacher again under the dying in harness
rules, This Court is of the view that the petitioner does not deserve
any sympathy. The petitioner is out of service. If a person conceals
facts of his earlier appointment and obtains another appointment it is
a case of fraud. Wherever there is fraud it vitiates everything. Since
the petitioner obtained the second appointment by fraud he is not
entitled for any discretion of this Court. I do not find any illegality in
the impugned order passed by respondents, canceling petitioner's
appointment.

4.
The writ petition fails and is accordingly dismissed.

Petition Dismissed.
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1999
------
A. Dubey
 Vs.
D.B.E.O.,
Sonebhadra &
another
------
V.M. Sahai, J.
1999
------
August, 23
3 All.] ALLAHABAD SERIES
243
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By the Court

1.
Heard Sri Hiyat Khan, the petitioner in person and Sri Dinesh
Kakkar learned counsel appearing for respondent no.2. the Petitioner
sates that he does not press his claim against respondents 3 and 4 and
respondent no.1 is a formal party. In view of this statement this writ
petition is taken up for final disposal.

2.
The Petitioner was a trained Machinist and he joined two
year's training with respondent no.2. He completed one year's
training and thereafter his training was terminated by the
respondents. The petitioner filed Writ Petition No.39148 of 1987
wherein this court set aside the termination order dated 19.9.1997
and permitted the respondents to pass a fresh order after affording
opportunity of hearing to the petitioner. The petitioner has completed
one year's training and if he is permitted by respondents then he
shall undergo one year's further training excluding the period from
19.5.1997 till the date of passing of fresh order. The judgement of
this court dated 21.5.1998 is quoted below ;
1999
------
Hiyat Khan
 Vs.
U.O.I. &
others
------
V.M. Sahai, J.
244 THE INDIAN LAW REPORTS [1999

"The petitioner seeks writ of writ of certiorari quashing the
order dated 19th September,1997 whereby the director of
Indian Institute of Technology, Kanpur, respondent no.1.
informed him that his training has been terminated.

The facts, in brief, are that respondent no.1 invited the
applications for two year's course in mechanic. The petitioner
applied for such training course. The Indian Institute of
Technology, Kanpur (hereinafter referred to as the Institute
conducted the practical test and interview. The petitioner was
selected for the training course. He was issued a letter dated
19th September,1996 intimating him that he has been enrolled
as trainee mechanic and he is permitted to join the training
course on the conditions mentioned therein. He was also
required to execute an agreement. Some of the relevant
conditions mentioned in the letter are as follows:-

1. STIPEND: Rs.800/ p.m. in the first year.
Enhancement in the stipendary amount to Rs.950/-
p.m. could be considered on satisfactory completion
of first year of training. You will not be entitled to any
other allowances or facility.

2. DURATION: The training period will be for a
period of two years with effect from the date of your
joining.

The training can be terminated at any time without
any notice and without assigning any reason. You will
be required to work day and/or night as per directions
of the authorities of the Institute.

Please note that the above is not a job position. You
are being enrolled only as a trainee.

If the Above terms and conditions are acceptable to
you, you should report for training immediately
alongwith the original certificates about your date of
birth,
educational/Technical
qualifications
and
experience etc. and a Photostat copy each thereof for
verification by the Institute Authority, latest by 7th
1999
------
Hiyat Khan
 Vs.
U.O.I. &
others
------
V.M. Sahai, J.
3 All.] ALLAHABAD SERIES
245
October,1996 failing which the offer so made will
stand cancelled automatically."

3.
The petitioner executed an agreement on 7th October 1996, a
copy of which has been annexed as Annexure-C.A.4 to the counter
affidavit. The training period has been terminated by respondent no.1
vide impugned order dated 19th September 1997. This order has
been challenged on the ground that his training has been terminated
without assigning any reason and justification.

I have heard the petitioner in person and Sri Dinesh Kakkar,
learned counsel for the respondents.

4.
It is not denied that the petitioner was not afforded any
opportunity by respondent no.1 before terminating his training in the
Institute. Sri Dinesh Kakkar, learned counsel for the respondents,
contended that the conditions of training itself provided that the
training can be terminated any time. He has also referred to the
similar condition mentioned in the agreement executed by the
petitioner which reads as under :-

"The training of the party of the first part may be terminated at
any time without assigning any reason and without any previous
notice."

In the Counter affidavit it has been stated that the conduct of the
petitioner was not proper as he remained absent without any
sanctioned leave. He has further given warning on different
occasions He has referred to a letter dated 3.9.1997 wherein it was
stated that the petitioner is not entitled for absorption in service. He
has disobeyed the orders of the supervisor. The office in-charge
again wrote letters on 6.2.1997 and 8.7.1997 whereby similar
warnings were given.

5
The question as to whether an agreement is arbitrary can be
examined by the court. In Central Inland Water Transport
Corporation Ltd., and another Vs Brojo Nath Ganguly and another,
AIR 1986 SC 1571, Rule 9(i) of the Central Inland water Transport
Corporation Ltd. Service discipline and Appeal Rules 1979 was
examined by the Apex Court which provided that employment of a
permanent employee can be terminated on three months notice on
either side, it was held that such rule giving opportunity to the
employee. Similar view was taken in Delhi Transport Corporation
1999
------
Hiyat Khan
 Vs.
U.O.I. &
others
------
V.M. Sahai, J.
246 THE INDIAN LAW REPORTS [1999
Vs. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101 where
the majority view was that Regulation 9 (b) of the Regulation
framed Under Section 53 of Delhi Road Transport Act, 1950 which
provided for Termination of services of the permanent employees on
giving simple one month's notice or pay in lieu thereof without
recording any reason therefor in order of termination was held
arbitrary, illegal and discriminatory and violative of audi alteram
Partem' rule. The term of the agreement that training of a party may
be terminated any time without assigning any reason and without
giving any opportunity to such party is arbitrary.

6.
The petitioner was agitating the matter that he should be
absorbed in service his contention was not accepted. The petitioner
was given a warning in respect of his conduct. The petitioner, under
these circumstances, could have explained his position before the
decision was taken that the training should be terminated. The
petitioner was taken training on 7.10.96 and he has completed almost
one year in training.

7.
Considering the facts and circumstances the petitioner could
have been given a notice before his training was terminated . It is
true that the conditions of training and also the terms of the
agreement provided that the training of the petitioner can be
terminated at any time without assigning any reason but the if the
termination is on certain allegation, the petitioner should have been
given an opportunity.

8.
Considering the facts and circumstances of the case the writ
petition is allowed. The impugned order dated 19.9.1997 is hereby
quashed. It is , however, made clear that the respondents can take
appropriate action and pass a fresh order after affording opportunity
to the petitioner. The petitioner has already completed almost one
year of training and he shall be allowed for further period of one year
to make it two year's training course excluding the period between
19.9.1997 to this date unless any fresh order is passed after affording
opportunity to the petitioner.

In the facts and circumstances of the case, the parties shall bear their
own costs".

9.
The respondents in pursuance of the order passed by this court
gave a show cause notice framing as many as five charges. In reply
the petitioner denied every charge and the allegation made against
1999
------
Hiyat Khan
 Vs.
U.O.I. &
others
------
V.M. Sahai, J.
3 All.] ALLAHABAD SERIES
247
him. He was personally heard. The proceedings were recorded in
shape of question and answers. The petitioner was no doubt asked
what he wanted to say but no inquiry was made from him in respect
of the charges framed against him nor any clarification was sought.
By order dated 12.10.1998 the services of petitioner have again been
terminated. The impugned order does not say that the petitioner was
guilty of any of the charges. The only reason assigned in the order is
that the respondents have come to the conclusion that the petitioner
is not a fit person to be appointed or retained as trainee in the
institute, therefore, the training of the petitioner in the institute be
terminated with immediate effect. In the impugned order no reason
has been assigned by the respondents as to what was the fault of the
petitioner due to which the training was cancelled. There is no
finding in the impugned order that the charges were proved.

This court while quashing earlier order had held that the term of the
agreement which permitted termination without assigning any reason
and without giving any opportunity was arbitrary. The court had
referred to the decision in Delhi Transport Corporation and held that
the termination order without giving reasons cannot be maintained.
The impugned order instead of complying with the order of this court
has paid lip service to it by issuing a show cause notice and granting
personal hearing. And it has been vehemently defended both in the
counter affidavit and the argument advanced by the learned counsel
for the respondent as sufficient compliance of the order passed by
this court. The apex court has settled it in series of decisions
including the one mentioned in earlier order that it was incumbent on
the authority passing the termination order to discuss the evidence
and give reasons in support of it. Once the charges were framed
against the petitioner and he denied it then the impugned order could
not have been passed without recording finding on every charge and
holding that it was proved. The court has time out of numbers said
that, it was not enough to state that the evidence on record proved
that the employee was guilty of the charges framed against him. The
legal requirement of discussing evidence and recording finding on
every charge did not come to an end only because the petitioner was
granted personal hearing. A perusal of Annexure-9 to the petition
shows that the respondents only observed the formality of hearing,
without complying with law or following the principles of natural
justice. The impugned order thus being in violation of the earlier
order passed by this court and being otherwise bad cannot be
maintained.

1999
------
Hiyat Khan
 Vs.
U.O.I. &
others
------
V.M. Sahai, J.
248 THE INDIAN LAW REPORTS [1999
11.
The petitioner has been harassed by the respondents from
1997 till date and he has been running from pillar to post for getting
his grievances redressed but the respondents in clear disregard of
the order passed by this court passed the order arbitrarily. The
petitioner has completed one year of training. There is no
justification to deny him training of one more year as none of the
charges have been found to have been proved. Since the respondents
despite the order of this court continued to act arbitrarily the
petitioner is entitle to costs which
is assessed to Rs.5,000/-.

12.
This writ petition succeeds and is allowed. The order dated
12.10.98 passed by respondents no.2 Annexure-10 to the writ
petition, is quashed. The respondents are directed to permit the
petitioner to continue and completed his remaining training of one
year to make its two year's training course excluding the period
between 19.9.1997 till this date. The petitioner shall be entitled to its
cost of Rs.5,000/-. The aforesaid directions shall be compiled with
by the respondents within one month from today.

A certified copy of this order shall be issued to the petitioner
who has appeared in person and learned counsel for the respondents
on payment of usual charges within 48 hours.

Petition Allowed.

1999
------
Hiyat Khan
 Vs.
U.O.I. &
others
------
V.M. Sahai, J.