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Himachal Pradesh High Court · body

2005 DIGILAW 136 (HP)

SATWANT SINGH KUTHEHRIA v. STATE OF H. P.

2005-05-16

BAKHSHISH KAUR, D.S.AMIST

body2005
JUDGEMENT Justice Mrs. Bakhshish Kaur, Chairman: The applicant is an Assistant Engineer(degree Holder) in Himachal Pradesh Public Works Department presently working on deputation with Himachal Pradesh Road Transport Corporation at Mandi. Consequent upon his deputation, he is posted as Civil Engineer in H.R.T.C, Mandi Division. 2. On his appointment as Assistant Engineer (Civil), one of the terms and conditions set up in the appointment letter was that his services could be terminated by the respondent No.3 i.e. Himachal Pradesh State Electricity Board (in short the Board) by on months notice without assigning any reason during the probation period which is for a period of two years. The appointment may be terminated at any time by one month notice given by either side i.e. the appointee or the appointing authority. A sum of Rs. 10,000/- is being deducted from the arrears of the pay of the applicant on account of breach of one of his appointment conditions as reflected in Annexure A-15 and A-16.the applicant, has, therefore, sought following relief’s:- a) That the Annexure A-15 and Annexure A-16 may be quashed; b) That the respondents No.1 & 2 may be restrained form making any recoveries form the applicant as per communication Annexure A-15; c) That the respondent No.3 may be directed to release the arrears of revised pay scale of the applicant w.e.f 2.8.1987 to 18.5.1989 alongwith other dues which were due to the applicant on 18.5.1989; d) That the applicant be also allowed the cost of the application; e) That the records of the case may be called for the perusal of this Honble Court- Tribunal and f) Any other order deemed fit and proper in the facts and circumstances of the case may also be passed in favour of the applicant and against the respondents." 3. The respondents No.1 & 2 in the reply have admitted that the applicant was appointed as Assistant Engineer in the Board. However, he was relieved by Himachal Pradesh Public Works Department (in short HPPWD), on August 25, 1987 to join as an Assistant Engineer in Board on his selection as Assistant Engineer. It is pleaded interalia that the effecting of recoveries from the applicant is a matter of contract between the applicant and the Board, respondent No.3 and the replying respondents have nothing to do for the same. 4. It is pleaded interalia that the effecting of recoveries from the applicant is a matter of contract between the applicant and the Board, respondent No.3 and the replying respondents have nothing to do for the same. 4. In response, respondent No.3 i.e. Board by raising preliminary objections averred that the application does not disclose nay enforceable cause of action. The applicant had joined the services of the replying respondents on August 26, 1987 on a fresh contract of employment, on the terms and conditions stipulated in the offer of appointment. Having accepted the offer of appointment without any protest and reservation, the applicant is not entitled to any relief. It is the applicant who in accordance with the condition No. xvii of the offer of appointment has executed a bond to serve the replying respondent (Board). The applicant was under a legal and contractual obligation to pay Rs. 10,000/- in lump sum as he did not serve the respondent Board for five years in accordance with the provisions of bond and abandoned the job on May 18,1989 after completion of only 1-3/4 years, therefore, the action of the replying respondents in effecting the recovery of Rs. 10,000/- is just, legal and within the four corners of the rules. 5. We have hard Mrs. Ranjana Parmar, learned counsel for the applicant and Mrs. Abhilasha Kumari, learned Additional Advocate General alongwith Sh.Chirag B. Singh, learned Deputy Advocate General for respondents No.1 & 2 and Sh. Yash Chauhan, learned counsel for the respondent No.3. 6.The bond executed between the parties i.e. applicant and the Board is Annexure A-18/ The-condition No.3 reads this"- "3. Now the condition of this bond is such that in the event of his leaving/abandoning the service, discharge, removal or dismissal before the expiry of said period of 5 years, he (a) S.S. KUTEHRIA. of the above bounden said sureties (1) & (2) respectively or any of them pays to the HPSEB a sum of Rs. 10,000/- (Rupees Ten thousand only) in lump sum." 7. Annexure A-1 is the appointment letter dated August 5, 1987. The relevant terms and conditions of the appointment letter are as under: -i) xx xx xx xx xx ii) xx xx xx xx xx iii)you will be on probation for a period of two years inclusive of the period of induction training. Annexure A-1 is the appointment letter dated August 5, 1987. The relevant terms and conditions of the appointment letter are as under: -i) xx xx xx xx xx ii) xx xx xx xx xx iii)you will be on probation for a period of two years inclusive of the period of induction training. During the probation period your services can be terminated by the Board without assigning any reason therefore iv) to vi) xx xx xx xx vii)The appointment may be terminated at any time by a month notice given by either side viz. The appointee or the appointing authority. The appointing authority, however, reserves the right of terminating the services of the appointee forthwith or before the expiry of the stipulated period of notice by making payment of a sum equivalent to the pay and allowances for the period of notice of the un-expired period thereof viii) and ix) xx xx xx xx x) The appointment will be subject to your being declared medically fit expenses of medical examination will have to be borne by you. xi) xx xx xx xx xx xii) Other conditions of service will be governed by the relevant Regulations and orders issued by the Board from time to time, xiii) to xvii) xx xx xx xx" 7.Annexure A-2 is the office order dated September 2, 1987 issued by the Chief Engineer, HPPWD on the selection of the applicant as Assistant Engineer in the Board and that be should consider himself relieved from the duties- w.e.f August 25,1987 subject to the following conditions.- "1. Shri S.S. Kutlehria, Junior Engineer(Degree Holder) being a quasi-permanent employee of this department can, if he so desires, revert to this department within two years if the post held by him prior to his joining HPSEB continues to exist. In any case at the end of two years form the date of release he will have to resign form this department as per his undertaking dated nil received in this office on 29.8.1997, if reversion does not take place; 2. This department shall not be responsible for payment of pension/leave contribution etc. for the service rendered in this department." 8. Mrs. R.Parmar, learned counsel for the applicant contended that the appointing authority is bound by the terms and conditions of the appointment letter as well as the CCS (Temporary service) Rules, 1965 which govern the service conditions of the applicant. This department shall not be responsible for payment of pension/leave contribution etc. for the service rendered in this department." 8. Mrs. R.Parmar, learned counsel for the applicant contended that the appointing authority is bound by the terms and conditions of the appointment letter as well as the CCS (Temporary service) Rules, 1965 which govern the service conditions of the applicant. The condition of execution of bond is in contravention of the terms and conditions of the appointment letter as well as Rule 5(l) of the CCS/Temporary Service) Rules, 1965. Assuming that the bond was validly executed even then the applicant was not liable to pay the amount as mentioned in the bond because he has given prior notice to the Board. The money could be recovered from the applicant if he had failed to tender one months notice to the respondent Board as per condition laid down in Clause-vii of the appointment letters. In fact, the applicant had left the service of the Board before the expiry of probation period i.e. two years. To recover the amount of Rs. 10,000/- form the applicant is purported exercise of abodes of powers. 9. To meet this argument, Mr. Yash Chauhan, learned counsel for the Board has laid much stress on the point that the applicant did not serve the respondents for five years as per terms of the bond; therefore, he is liable to pay the amount as mentioned in the bond. He cannot retract from the terms and conditions envisaged in the bond the applicant on his joining has also accepted the terms and conditions of appointment. For breach of bond, he is under a legal and contractual obligation to pay Rs. 10,000/-. 10. As per terms and conditions set-out in appointment letter Annexure A-1 (Clause-(iii), trie services of the applicants could be terminated by the Board without assigning any reason during the probation period of two years. The applicant on the contrary had lien in the parent department because as per Annexure A-2, if desired, he could revert to the parent department within two years. Thus, he has served one months notice to the respondent No.3 from April 19, 1989 for termination of his services under Rule 5(l) of the rules (Annexure A-3). By virtue of Annexure A-4 dated April 28,1989 issued by the Chief Engineer (North), HPPWD, Dharamshala, it was informed that there is no post of Jr. Thus, he has served one months notice to the respondent No.3 from April 19, 1989 for termination of his services under Rule 5(l) of the rules (Annexure A-3). By virtue of Annexure A-4 dated April 28,1989 issued by the Chief Engineer (North), HPPWD, Dharamshala, it was informed that there is no post of Jr. Junior Engineer available in this office nor under this Zone. As such, it was requested that his orders for repatriation and further posting may be issued by your office in" view of similar orders issued in respect of Shri Yash Paul Singh Sambyal Je. Accordingly, the applicant was ordered to be posted against a vacant post in 7th Circle, HPPWD, Dalhousie. It was also mentioned that the applicant may join on the expiry of his notice period or the date of his relieving. A copy of this letter was addressed to respondent No.3. The applicant, therefore, gave his joining report on May 19, 1989 (Annexure A-6). Under these circumstances, when the applicant had given prior notice before the expiry of probation period of two years then this services is deemed to be terminated at any time by a months notice given by the appointee or the appointing authority as per terms No.7 of Annexure A-1. If the appointment could be terminated by issuing a notice by either side and also that the appointee was within his rightly to leave the job within the probation period of two years, then he cannot be burdened with the penalty of making payment of Rs. 10,000/- because both the terms and conditions envisaged in term No. ii), iii), Vii) and xii) of Annexure A-1 and the bond appear to be inconsistent with one another. On the contrary when the applicant had left the job of the Board within the period of two years to revert back to H.P.P.W.D as he was having lien in parent department and the Board was aware of this fact that he could leave the service and revert back to his parent Department. Therefore, respondent cannot be allowed to agitate the matter as to why he had not served for a period of five years as per terms and conditions of the bond. Rather we are of the view that the applicant had not violated any of the conditions of appointment letter. 11. Therefore, respondent cannot be allowed to agitate the matter as to why he had not served for a period of five years as per terms and conditions of the bond. Rather we are of the view that the applicant had not violated any of the conditions of appointment letter. 11. Taking the totality of circumstances as above, the original Application is allowed after quashing Annexure A-15 and Annexure A-16. The respondent No.3 is directed to release the arrears of revised pay scale for the period in question within three months form the receipt of copy of order. In default of payment within the stipulated period, the applicant will be entitled to recover the amount @ 6% from trie date it became due till its realization. The Original application is disposed of accordingly.