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Himachal Pradesh High Court · body

2010 DIGILAW 962 (HP)

Sudesh Sodhi v. M. C. Shimla

2010-07-19

SURJIT SINGH

body2010
JUDGEMENT Surjit Singh, J.(Oral)Petitioner is aggrieved by Annexure P-3, notice of termination dated 13.4.2010, served upon her by the Commissioner, Municipal Corporation, Shimla. Petitioner has been working as Warden in Working Women Hostel, Sanjauli, since 1983. At the time of her appointment, hostel was being run by a Trust, known as Himachal Kalyan Nidhi. Hostel was transferred to Municipal Corporation, vide agreement dated 20.12.1990, copy Annexure P-2. Paragraph 4 of the agreement, provided for taking over of the services of the staff of the hostel. 2.Paragraph 8 of the agreement provided that a five member committee will be constituted for the management of the hostel and one of the five members would be nominated by the Trust. 3.Petitioner, who is now 70 years old, has been served impugned notice, Annexure P-3. It reads that on expiry of three months period, to be counted from the date of the service of notice, her services shall stand terminated, automatically. No reasons for termination of service have been assigned in the notice. Prayer has been made for quashing the notice. 4.Petition is opposed by the Municipal Corporation, impleaded as respondent No.1. In the reply it is stated that petitioner is already 70 years old, though normal retirement age of the employees is 58 years. A copy of resolution passed by the Municipal Corporation, in its meeting held on 30.6.2010, has been placed on record, per which petitioner has been ordered to be retired on payment of a lump sum equivalent to six months salary, i.e. Rs.33000/-. 5.I have heard the learned counsel for the parties and perused the record. 6. It is submitted by the learned counsel for the respondents that petitioner cannot claim herself to be an employee of the Municipal Corporation. In fact, petitioner does not claim that she is an employee of the Corporation or entitled to retrial benefits. Her plea is that when Trust was taken over, it was agreed that the terms and conditions of the employees already working, shall not be changed to their disadvantage. 7.Learned counsel for the petitioner submits that the very fact that the petitioner has been allowed to continue upto the present age of 70 suggests that she is not being treated as employee of the Corporation, because if it were so, she would have been retired or at least would not have been in service, after attaining the age of 58. 8.Rules, which were prevailing prior to take over of the hostel do not provide any terms and conditions, with regard to the services of the employees of Trust. Rules simply say that Warden shall be assisted by other staff and shall be the Incharge of discipline, management, finance, accounts and day-to-day administration of the hostel. 9.Resolution for the retirement of the petitioner, which is dated 30.6.2010 and a copy of which has been placed on record today, has been passed by the Municipal Corporation and not by the Management Committee, which as per clause 8 of the agreement is responsible for the management of the hostel. Impugned notice of termination of the services of petitioner has also been issued by the ommissioner, Municipal Corporation, and not by the Management Committee, constituted under clause 8 of the agreement. 10.When the agreement regarding take over of the hostel provides that the hostel shall be managed by a Committee of five members, one of whom shall be a nominee of the Trust and the petitioner is not an employee of the Municipal Corporation, as indicated hereinabove, neither the Commissioner nor the Municipal Corporation should have any authority to dispense with the services of the petitioner. It is the management which is competent to take such a decision. In any case, neither in the impugned notice, Annexure P-3, nor in the aforesaid resolution dated 30th June, 2010, it is indicated as to why the services of the petitioner are being terminated. If she has been running and managing the affairs of the hostel for 12 years, after her attaining the normal age of superannuation, she can be considered to be capable of doing so, even now, especially when there is nothing on record, indicating that she is not physically or mentally fit for the job. 11. In view of the above stated position, writ petition is allowed. Impugned notice, Annexure P-3 and resolution dated 30.6.2010 of the Municipal Corporation, with regard to the retirement of the petitioner, are quashed. Writ petition stands disposed of accordingly.