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Rajasthan High Court · body

1998 DIGILAW 296 (RAJ)

Ram Bhawan v. Instrumentation Limited

1998-02-27

D.C.DALELA

body1998
Honble DALELA, J. – After completion of the period of probation, the petitioner was brought on regular cadre of the respondent-company as Additional Manager with effect from 1.10.1979 vide order dated 8.10.1979. In the seniority list of the Additional Managers issued by the management of the respondent No. 1, the petitioner has been shown at S.No. 13. The petitioner has rendered 14 years of con- tinuous service on 1.10.1983 + one years of Engineering Graduate Apprentice Training. On 3.10.1983, an order came to be issued by which the petitioner was transferred from Production Division, Kota unit to Erection and Commissioning (Commercial Unit). According to the petitioner before transfer order could be served on him, he proceeded on leave with effect from 4.10.1983 to 6.10.1983. He reported back on 7.10.1983. He was relieved from, his unit to join Commission. The petitioner again sought leave for 7th and 8th October,1983, and further extension of leave from 9th October to 13th October, with permission to avail of gazetted holidays from 14th October to 17th October. The petitioner left Jaipur for his personal work in anticipation of the sanction of the leave, and, from Jaipur, he sou- ght a telegraphic extension of his leave from 18th October, 1983 to 4th November, 1983. While, at Jaipur, his wife at Kota, received three documents-telegram dated 13.10.1983 and letters dated 13.10.1983 and 20.10.1983. By telegram, the petitioner was informed that his leave applied for October 9 to 13 was not sanctioned. By letter dated 13.10.1983, the petitioner was informed that his leave has not been san- ctioned, and, therefore, he was being treated as absent in an authorised manner. He has been asked to explain his conduct by return of post. By the order dated 20.10.1983. the services of the petitioner were terminated with immediate effect in terms of para 6 of the appointment letter as he was absconding till the date. A cheque of three months pay in lieu of notice, was also enclosed with the letter. The petitioner was shocked to receive the order of termination, and, after having over come shock, he made representation to the Chairman-cum-Managing Director, but in vain. According to the petitioner, the order of termination was passed on account of the refusal to take the order of transfer, and, wilful absence from duty. According to the petitioner, the termination order is not non-stigmatory. According to the petitioner, the order of termination was passed on account of the refusal to take the order of transfer, and, wilful absence from duty. According to the petitioner, the termination order is not non-stigmatory. Feeling aggrieved by the termination order, the petitioner has preferred this writ petition praying that the termination order dated 20.10.1983, be quashed, and, the respondents be directed to reinstate the petitioner in service with all consequential benefits. The petitioner has further prayed that para 6 of the appointment letter dated 17.1.1969, may be declared unconstitutional, and, violative of Article 14 of the Constitution of India. (2). The respondents, in reply, denied the petition, and, have contested it. (3). I have heard the arguments of both the sides, and, have also gone through the written submissions made by them. (4). The question as to whether the respondent No. 1 company ``The Instrumentation Limited, Kota is a State within the meaning of Art. 12 of the Constitution of India, and, is amenable to the writ jurisdiction, was considered by this Court in the case of Parmatma Prasad Dwivedi vs. B.J. Shahaney (1). This Court has held : ``A bare look at the Articles of Association of the Company would show that applying these principles to the facts of the present case, the defendant company is an agency or instrumentality, of the Government, President of India has a final control in various matters. It is totally financed by the Government of India and the Government has got wide administrative control over the functions and affairs of the company. Thus, the respondents will come within the ambit of word `State used in Article 12 of the Constitution of India and its employees are entitled to protection of Articles 14, 16, 21 and 41 of the Constitution of India. (5). The defendant company in that case was Instrumentation Limited Kota, itself, which is respondent No. 1 in the instant case in hand. Thus, this Court has held that the respondent No. 1 company, that is to say, Instrumentation Limited, Kota, is `State within the meaning of Article 12 of the Constitution of India, and, it is amenable to the writ jurisdiction, and, its employees are entitled to protection of Articles 14, 16, 21 and 41 of the Constitution of India. Thus, this Court has held that the respondent No. 1 company, that is to say, Instrumentation Limited, Kota, is `State within the meaning of Article 12 of the Constitution of India, and, it is amenable to the writ jurisdiction, and, its employees are entitled to protection of Articles 14, 16, 21 and 41 of the Constitution of India. In face of this direct decision of this Court, the argument of the learned counsel for the company that the company is not a `State under Article 12 of the Constitution of India, is not tenable, and, it is futile to discuss this contention at length. (6). Para 6, of the appointment letter, annexure 1, reads as under :– ``6. After termination of the period of the Bond, your services will be continued subject to satisfactory performance, and the appointment will be terminable by 3 months notice on either side, or pay with allowances as admissible in lieu thereof. (7). The contention of the learned counsel for the respondents is that the ser- vice condition of the petitioner was governed by a mutual agreed contract, and, are not governed by statutory provision or any statutory rules. Para 6 of the appointment letter is a mutually agreed contract between the parties, and, the service of the petitioner was terminated in pursuance of this term of contract, and as such the petitioner has got no right, whatsoever against the termination of his services. But the decision of Honble the Supreme Court, seems to be otherwise. (8). In the case of Central Inland Water Transport Corporation Ltd. and another vs. Brojo Nath Ganguly and another (2), Honble the Supreme Court has held that the Rule empowering the Government Corporation to terminate services of its permanent employees by giving notice or pay in lieu of notice period is opposed to public policy and violative of Article 14 and directive principles contained in Articles 39(a) and 41 of the Constitution of India. Rule 9(i) of the Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules, 1979, came up for consideration before Honble the Supreme Court. The Rule 9(i) provided that employment of a permanent employee shall be subject to termination on three months notice on either side. The notice shall be in writing on either side. Rule 9(i) of the Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules, 1979, came up for consideration before Honble the Supreme Court. The Rule 9(i) provided that employment of a permanent employee shall be subject to termination on three months notice on either side. The notice shall be in writing on either side. The Company may pay the equivalent of three months basic pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice. After considering this rule, Honble the Supreme Court has held that the rule 9(i) is violative of Article 14 and directive principles contained in Articles 39(a) and 41 of the Constitution of India. According to the Honble Supreme Court, such rule is arbitrary, unreasonable, and it wholly ignores principle of natural justice of audi alteram partem. Even in case of contract of employment as distinct from a statutory rule. Honble the Supreme Court has observed as under: ``A clause such as Rule 9(i) in a contract of employment...... is harmful and injurious to the public interest for it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy, it is void under section 23 of the Indian Contract Act. (9). Thus, according to the Honble Supreme Court, even if paragraph 6 of the appointment order, annexure I, is a mutual agreed contract, it is void under section 23 of the Indian Contract Act. (10). In the case of Bharat Coking Coal Ltd. and others vs. Babu Lal & Anr. (3), the termination of a Senior Mining Engineer and Colliery Manager by three months notice or notice pay under R. 12.4 (1)(c) of the Common Coal Cadre Rules, 1974, was held by the Honble Supreme Court, to be violative of Article 14 of the Constitution of India. According to Honble the Supreme Court, such rule being violative of Article 14 of the Constitution, cannot be invoked. (11). According to Honble the Supreme Court, such rule being violative of Article 14 of the Constitution, cannot be invoked. (11). In the case of Parmatma Prasad Dwivedi (supra), the appointment letter contained clause 13 providing that the service would be continued subject to satisfactory performance, and, the appointment would be terminable by three months notice on either side or pay with allowance in lieu thereof, and, this Court held such clause to be void being violative of Articles 14, 16, 21 and 41 of the Cons- titution of India, and being unfair unreasonable and opposed to public policy. Thus, in view of aforesaid decisions of Honble the Supreme Court and this Court, the provision contained in para 6 of the appointment order, annexure 1, is void being against the public policy, and, cannot be invoked. Consequently, the termination in pursuance of such a clause is unsustainable, and, liable to be set aside. (12). A perusal of the termination order dated 20.10.1983 would show that it is stigmatory. It clearly states that the petitioner refused to take delivery of transfer order, and, remained absent or absconding, and, therefore, his service have been terminated in terms of para 6 of the appointment order. On a plain reading of the termination order, it is obvious and evident that it is stigmatory in nature. (13). In the case of D.K. Yadav vs. J.M.A. Industries Ltd. (4), the service was terminated on account of the absence without or beyond the period of sanctioned leave for more than 8 days. Honble the Supreme Court held that the termination without holding any domestic enquiry or affording any opportunity to the workman, is violative of principles of natural justice under Article 14 and 21 of the Constitution of India. Here in, in the instant case, the termination of service has been ordered because the petitioner refused to take the delivery of transfer order, and, remained absent without the sanction of leave. The principle of natural justice requires that the petitioner should have been afforded an opportunity or a domestic enquiry should have been conducted. The termination order dated 20.10.1983 is, therefore, not sustainable being violative of principles of natural justice. The principle of natural justice requires that the petitioner should have been afforded an opportunity or a domestic enquiry should have been conducted. The termination order dated 20.10.1983 is, therefore, not sustainable being violative of principles of natural justice. The act of the respondent in terminating the service under para 6 of the appointment order without holding any domestic enquiry or affording any opportunity to the petitioner, is violative of principles of natural justice, and, is arbitrary and unfair. (14). In the result, this writ petition is allowed. Para 6 of the appointment order, Annexure 1, is opposed to public policy, and, is void under section 23 of the Indian Contract Act, and, as such, cannot be invoked. The order of termination dated 20.10.1983 is stigmatory, and, has been passed without holding any domestic enquiry or affording any opportunity to the petitioner, and, is, therefore, violative of principles of natural justice. It is, therefore, quashed and set aside. The petitioner shall be deemed in service as if the termination order dated 20.10.1983 has, never, been passed with consequential all benefits.