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2002 DIGILAW 1161 (PAT)

Rajendra Singh v. Union Of India

2002-10-30

CHANDRAMAULI KR.PRASAD

body2002
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated 10-6-1999 (Annexures-6 & 6/A) whereby the services of the petitioners have been terminated with effect from 11th of June, 1999. 2. Short facts giving rise to the present application are that by order dated 30th of June, 1999 (Annexures-4 & 4/A), petitioners were appointed as Diploma Trainee (Mining) hereinafter referred to as Trainee on a consolidated stipend of Rs. 1750 per month in the first year and Rs. 2000 per month for the second year for a period of two years w.e.f. fore-noon of 11th of June. 1997. It is the stand of the petitioners that their appointment as Trainee was made after following the procedure prescribed for appointment in the Personnel Policy of the respondents Pyrites Phosphates and Chemicals Ltd. (hereinafter referred to the Company). 3. The terms and conditions for appointment as Trainee find incorporated in the memo dated 4th June. 1977 (Annexure-5). Clause 2 and 5 thereof which are relevant for the purpose, are quoted below: (2) "Your training period in Mines would be initially for a period of two years with effect from the date you report for duty. The above training period can be extended/terminated at he discretion of the Management without assigning any reasons. (5) On successful completion of the training period of two years and satisfactory performance your case for absorption as Mine Mate cum Blaster Gr-II in the pay scale of Rs. 2550-90-3990-ME-7 will be considered." On completion of two years training, the services of the petitioners have been terminated. It is the prayer of the petitioners that the order terminating their services be quashed and the respondents be directed to absorb them in service. !n this connection, Clause 2.0 of Chapter 2 of the Personnel Policy of the respondent Company has been referred to which provides for the classification of employees and in that the Trainees have also been incorporated within the expression Employee. 4. It has also been pointed out that in view of Clause 3.3. (b) of Chapter-3 of the Personnel Policy, after the completion of the training their performances have to be assessed and they are required to be absorbed in the grade of NE-7. Clause 3.3 (b) of Chapter-3 of the Personnel Policy reads as follows: 3.3(b). 4. It has also been pointed out that in view of Clause 3.3. (b) of Chapter-3 of the Personnel Policy, after the completion of the training their performances have to be assessed and they are required to be absorbed in the grade of NE-7. Clause 3.3 (b) of Chapter-3 of the Personnel Policy reads as follows: 3.3(b). Technical Diploma Trainees The Company may recruit Diploma trainees depending upon necessity in the engineering trades of civil, electrical, mechanical, mining etc. The period of training will be two years. During the training period, they will be entitled to a suitable stipend as may be determined from time to time by the Company. On completion of the training in the relevant trade, their performance will be assessed and they will be absorbed in the grade of NE-7 as Asstt. Technicians if found suitable. During the course of on the job training the Company may also depute the trainees for training outside the plaint or in other specialised agencies found suitable by the organisation." It has been averred that the petitioners have successfully completed the training and as such, respondents are under obligation to consider their cases for absorption. 5 Counter affidavit has been filed on behalf of Respondent Nos. 2 to 6 in which it has been stated that the factory as well as the mining operation of the Company have been closed since May, 1999. It has been further averred that at present strength of employees in the factory as well as mines is 700 and according to the project report, to make the company viable the strength has to be brought down to 380 only. It has also been stated that the mining operation in the factory is closed and the Company had already introduced voluntary retirement scheme for down-sizing the strength of the employees and as such, the petitioners cannot be absorbed in the service. 6. Mr. P.K. Verma, appearing on behalf of the petitioners, submits that the petitioners are within the expression employee and having been appointed as trainee following the procedure provided under the Policy, their services cannot be terminated. I do not find any substance in this submission of the learned Counsel. 6. Mr. P.K. Verma, appearing on behalf of the petitioners, submits that the petitioners are within the expression employee and having been appointed as trainee following the procedure provided under the Policy, their services cannot be terminated. I do not find any substance in this submission of the learned Counsel. It is true that the petitioners come within the definition of employee as provided under the Personnel Policy of the respondents-Company and even if I assume in their favour that the petitioners have been appointed as trainees following the procedure prescribed for appointment in the Policy, that itself will not confer on them the right to continue as trainee indefinitely. The letters of appointment by which the petitioners were appointed as trainees, in specific terms stated that they have been appointed as Trainees for the period of two years with effect from 11th of June, 1997. Their appointment as trainee has been terminated with effect from 11-6-1999 i.e. after the expiry of the period mentioned in the letter of appointment. 7. Mr. Verma then contends that on successful training, the petitioners ought to have been considered for absorption and in case, petitioners were not entitled to be absorbed, same ought to have been communicated in the orders impugned itself. He points out that the decision of the respondents not to appoint the petitioners, as stated in the counter affidavit, is not fit to be taken into account as the same ought to have been communicated in the impugned order itself. In support of the submission, he has placed reliance on a judgment of the Supreme Court in the case of Mohinder Singh Gill and Anr. V/s. The Chief Election Commissioner, New Delhi and Ors., (1978) 1 SCC 405 . My attention has been drawn to the following passage from the said judgment: "(8) The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out." 8. I do not find any substance in the submission and the authority relied on has no application in the facts of the present case. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out." 8. I do not find any substance in the submission and the authority relied on has no application in the facts of the present case. The services of the petitioners have not been terminated on the ground of any mis-conduct but on expiry of the period for which they were appointed as Trainees on consolidated stipend. The terms and conditions (Annexure-5) agreed between the petitioners and the respondents in clear terms, had indicated that the training of the petitioners in the mines would be initially for a period of two years which can be extended/terminated at the discretion of the employer. Clause 5 of the memorandum do contemplate of consideration of the cases of the petitioners for absorption on successful completion of the tranining. Their cases for absorption have not been considered on account of the fact that the respondents do not need the services of the petitioners on account of down-sizing the strength of the employees. Thus, in my opinion, simply because the orders terminating the services of the petitioners on expiry of the term of training did not indicate the reasons for non-absorbing the petitioners, shall not render the impugned orders illegal in the eye of law and entitle the petitioners to continue in service beyond the period of training without any order absorbing them in service. 9. The orders impugned pertains to the termination of services of the petitioners and when petitioners had raised their grievance in relation to their non-absorption in service, in order to defend its action, the company had placed the facts to satisfy the Court that for good reasons petitioners have not been absorbed in service. 10. Mr. Verma then contends that according to the terms and conditions of appointment of the petitioners as trainees, they were entitled for consideration of their case for absorption on successful completion of the training and hence, the action of the respondents in not absorbing them on a regular post, is illegal. In this connection, he has drawn my attention to Clause 5 of the memorandum (Annexure-5) which has been quoted in earlier paragraph of this order. 11. In this connection, he has drawn my attention to Clause 5 of the memorandum (Annexure-5) which has been quoted in earlier paragraph of this order. 11. True it is that the aforesaid clause do promise the petitioners for consideration of their cases for absorption on successful completion of training period of two years, but that itself shall not entitle the petitioners to be absorbed in service. Respondents have stated that to make the company viable, the present strength of the employees has to be reduced from 700 to 380 and not only this, the mining operation in the factory has also been closed and various schemes have been introduced to down-size the strength of the employees. In such a State of affairs, the action of the respondents not to absorb these petitioners, cannot be said to be illegal. Any direction to the respondents to absorb these petitioners would further burden them of financial liability, without any work to them. I hasten to add, in case it is found that the employer after training does not absorb a trainee for reason which is not just and proper, direction can be issued for consideration of case of such an employee for absorption, but in case the employer for some justifiable reason decline to absorb the trainees, the action cannot be said to be illegal and in such circumstances, direction for absorption would be wholly inappropriate. Having found that the services of the petitioners have not been absorbed for valid reasons, hence, the submission of Shri Verma has no force and is hereby rejected. 12. Mr. Verma lastly submits that the services of the petitioners have been terminated without notice and as such, the action of the respondents is in breach of Art. 311 of the Constitution of India. In his submission, this itself renders the impugned orders illegal in law. 13. I do not have the slightest hesitation in rejecting this submission of the learned Counsel. Petitioners are not a member of Civil Services of the Union or of All India Services or a Civil Service of State or holds a civil post under the Union or a State and as such, Art. 311 of the Constitution of India is not even remotely attracted. Petitioners were Trainees in an undertaking of the Government of India which is not its department. Petitioners were Trainees in an undertaking of the Government of India which is not its department. However, even in a case in which Art. 311 of the Constitution of India is not attracted, the action of the employer has to be in conformity with the principles of natural justice. The facts of the present case, did not oblige the respondents to give show cause notice to the petitioners. Petitioners were engaged as Trainees for a period of two years and after the expiry of the said period, have not been absorbed in service. Their training period has not been curtailed or terminated on account of any mis-conduct or for that matter, have not been absorbed in service for any reason attributable to the petitioners but on account of non-availability of the post. In such circumstances, no show cause notice is required to be given. 14. All the submissions made on behalf of the petitioners having no substance, I do not find any merit in the application and it is dismissed accordingly. No costs.