Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 669 (JHR)

Hindustan Copper Limited v. Mrs. Vijay Bhargava

2003-06-16

AMARESHWAR SAHAY, GURUSHARAN SHARMA

body2003
ORDER 1. In the year 1972, Umesh Dutt Bhargava was appointed as Mining Engineer in M/s. Hindustan Copper Limited (hereinafter to be referred to as the Company). The post of Mining Engineer was reesignated as Senior Mining Engineer and again as Mining Superintendent. In the year 1983, he was promoted to the post of Deputy Mines Superintendent, which was also redesignated in the year 1984 as Manager (Mines). In the year 1989 he was promoted on the post of Senior Manager (Mines) and was confirmed on the said post with effect from 9.4.1990. The post of Senior Manager (Mines) was redesignated in the year 1981 as General Manager (Mines). 2. Shri Bhargava was born on 10.7.1941 and was scheduled to retire on 10.7.1999, after attaining the age of 58 years. However, by office order dated 11.11.1994 his services were terminated with immediate effect in terms of Clause 3 of his appointment letter. 3. Clause 3 of the appointment letter provided as under : "Probation : You will be on probation for 6 months. During the period of your probation you will be on a months notice in the event of your wishing to resign or the Company wishing to terminate your services. On completion of your probationary period, a notice period of 3 months is required from both sides." 4. He challenged the order of termination in this Court vide CWJC No. 3078 of 1994(R) on the ground that it was illegal, arbitrary, unconstitutional and was passed in violation of the Service Regulation. It was issued without initiating any departmental proceeding and without following the Rules and Regulations and therefore, the action of the respondents was totally unilateral mala fide and arbitrary. 5. Service Regulations of M/s. National Mineral Development Corporation (hereinafter to be referred to as the Regulation) have been adopted by the Company. By office order dated 16.1.1999 the Company modified Clause 10(17) of the Regulation to the effect that for the purpose of premature retirement, an employee who has to retire from services of the Company at 58 years may be retired by the competent authority, if on attaining the age of 60 years, he was found inefficient, corrupt or medically unfit, on giving three months notice or pay in lieu thereof. 6. 6. The Company filed a counter affidavit in the said writ petition stating, inter alia that the termination order was issued in exercise of powers under Clause 10 of the Regulation and along with the order of termination from the service, three months pay, in lieu of notice, was also given to him. The competent authority of the Company opined that retention of the writ petitioner in the Company for public purposes and interest was not warranted. Considering the appraisal reports of his past three years services, it was found that he was proved to be inefficient in performing his duty and shouldering responsibility during his employment in the Company. Shri Bhargava was also offered voluntary retirement scheme introduced in the Company, but he refused to accept the same and thereafter the competent authority prematurely retired him. 7. Learned Single Judge by impugned judgment dated 28.7.1999 allowed the writ application and set aside the order of termination by, way of compulsory retirement passed in exercise of powers conferred by Clause 10 of the Regulation. It was observed that in fact the order of termination was passed in terms of Clause 3 of the 1972 letter of his appointment. The petitioner was, therefore, directed to be reinstated with all consequential benefits and costs. 8. The present appeal has been filed by the Company against the said order dated 28.7.1999. Meanwhile on 10.7.1999 Shri Bhargava superannuated from service and during pendency of the appeal he also died. Hence, by order dated 24.4.2003 the name of deceased sole respondent was expunged and in his place, his widow Vijay Bhargava was substituted. 9. Clause 10(17)(a) and (b) of the Regulation provided that an employee shall retire from the service of the Company on attaining the age of 58 years, provided that the competent authority may require an employee to retire, who is inefficient, corrupt or medically unfit, on attaining the age of 50 years on giving three months notice or pay in lieu thereof. Clause 10(17)(c)(1) provided that criteria for judging the medical fitness, inefficiency and doubtful integrity of an employee proposed to be prematurely retired. In the present case, we find that till 1991 Shri Bhargaya was given promotion and there was no allegation of either poor or below average performance against him so as to consider his case for either premature or compulsory retirement. In the present case, we find that till 1991 Shri Bhargaya was given promotion and there was no allegation of either poor or below average performance against him so as to consider his case for either premature or compulsory retirement. In its counter affidavit filed in the writ application, the Company took the stand that the writ petitioner was prematurely retired under Clause 10 of the Regulation. Learned Single Judge, after discussing all the materials in detail, by impugned order dated 28.7.1999 allowed the writ application on the ground that it was a simple case of termination under Clause 3 of the letter of appointment. 10. No departmental proceeding was initiated against Shri Bhargava before termination of his services and in the termination order dated 11.11.1994, it was specifically mentioned "in terms of Clause 3 of his appointment letter No. HCL/ICC/ GM/A-1.19, dated 16.9.1972, employment of Shri U.D. Bhargava, Chief Manager (Mines), with the Company is hereby terminated with immediate effect. A cheque equal to the sum of three months pay in lieu of notice period is enclosed." 11. There was nothing in the said order whereby it can be Inferred that the said order of termination was issued in exercise of powers under Clause 10(17) of the Regulation as alleged by the Company in its counter affidavit filed in the writ application. In case, inadvertently in the termination order reference of Clause 3 of the appointment letter was made, it was open to the Company to rectify the said mistake by issuing a corrigendum thereof. According to the Regulation inefficiency of an employee was to be evaluated on the basis of the appraisal reports. An employee who had secured consecutively fair and/or poor rating for three years in his appraisal reports could have been deemed as a fit case for premature retirement. An employee who was prematurely retired was entitled to be paid for the notice period of one month/three months as may be applicable to him in terms and conditions of service plus leave salary for unavailed earned leave, full provident fund contribution, gratuity and transfer benefits for self and family for proceeding to home town or to the place where he intended to settle in India, as admissible under the T.A. Rules. 12. 12. The learned Single Judge observed that there was no iota of evidence or material to show that the Company ever intended to require the writ petitioner to retire on any ground. It was further observed that validity of the order passed by the authority on certain specified grounds has to be judged on the grounds so mentioned and the said order cannot be supplemented by fresh grounds in the shape of affidavits or otherwise in the judicial proceedings. In this regard reference may be made to a decision of the Apex Court in Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851 , wherein it was observed that 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. It is also not in dispute that the rating of his performance in last three years of his service career before passing the order of his termination from service was never communicated to him. He was also never asked to improve his performance; rather he was granted promotion throughout till 1990. 13. The learned Single Judge on examination of the copies of the appraisal reports relating to Shri Bhargava for the period 1991-94 observed that most of the notings made therein were without any date and the remarks were inconsistent and were not bonafide made in public interest. 14. In the aforesaid circumstance, were are not in a position to interfere with the impugned decision of the learned Single Judge, wherein it was held that order of termination from service of Shri Bhargava, late husband of the respondent herein, was not passed in exercise of powers conferred by Clause 10(17)(c)(I) of the Regulation by way of compulsory retirement; rather it was passed in terms of Clause 3 of his original letter of appointment of the year 1972, which on the face of it was illegal, arbitrary and mala fide. The respondent, after death of her husband, therefore, is entitled to the consequential benefits. 15. In the result, this appeal is dismissed, having no merit. No costs.