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2011 DIGILAW 1487 (PAT)

Kishore Kumar v. State Of Bihar

2011-07-19

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ORAL JUDGMENT (HONOURABLE JUSTICE SMT. T. MEENA KUMARI) All the Letters Patent Appeals arise out of the common order dated 26.11.2008 passed by learned single Judge in C.W.J.C. no.5928 of 2002. The writ petitions have been filed being aggrieved by the action of respondent nos.5 and 6 questioning the termination notice dated 26.3.2002 from service issued by respondent no.6 on the ground of closure of Engineering Cell. Counter affidavits have been filed before the learned single Judge and learned single Judge having heard both sides observed that in similar situation the Jharkhand High Court on action of the Corporation in terminating service had directed to pay compensation package with interest @ 6% p.a. Accordingly, some of the employees approached the Apex Court and the Apex Court by order dated 27.1.2006 dismissed the Special Leave Petitions. Learned single Judge has further directed that if the Corporation has plans to make fresh appointment with respect to the post to which the writ petitions had been appointed, they should also consider the cases of the writ petitioners on the basis of their length of service. It has been contended before us that the Government went on issuing notices (Annexures-3 to 10) from time to time which indicate that appellant has been absorbed on the post of Assistant Engineer with effect from the date of his joining on the post of Junior Engineer, i.e., 9.6.1984. Those notices also indicate closure of Engineering Units of various departments and have been absorbed in the Building Construction Department. The Government has also decided to transfer the Engineering Cell under the control of Welfare Department. It is further contended that Annexure-32 of the Letters Patent Appeal indicates that services of the employees( including appellants) of the Engineering Cell would be merged after scrutiny in the Building Construction Department on the basis of seniority and eligibility and employees who are not found fit to be absorbed will be paid compensation package as per direction of the Government. Learned counsel appearing on behalf of respondent nos.5 and 6 has contended that in similar situation Jharkhand High Court held that compensation to the terminated employees should be paid as per provision under section 25 F of the Industrial Disputes Act which has been challenged before the Apex Court and the Apex Court has affirmed the order passed by the Jharkhand High Court. It has been brought to our notice with regard to notification issued by Respondent no.6 indicating receipt of the compensation package by the appellants. It has been contended that the Government may be directed to issue a direction to the Corporation to take back all the appellants in their services. It also contended that in absence of any direction of the Government, the Administrator should not act in terminating the services of the appellants. Annexures-3 to 10 go to show that those are notifications issued by the Department with regard to merger of the Engineering units with Building Construction Department. There is also judgment of the Apex Court affirming the order of the Jharkhand High Court. Having noted all the facts Government arrived at the decision that Engineering units of various departments would be transferred under the control of Welfare Department. However, it is a fact that no order has been issued by the Government indicating the Corporation to terminate the services of the employees like the appellants herein. However, the fact remains that the Administrator has acted of his own in issuing separate notice with respect to the order of termination violating the principles of natural justice. However, in view of the fact that there is decision of the Government to transfer the Engineering Cell under the control of the Welfare Department, we are of the opinion that the matter be remitted back to the department concerned for taking appropriate decision on the basis of Annexures-3 to 10. However, it is made clear that the appellants may file a fresh representation to the concerned department. Thereafter, Respondent no.1 shall take appropriate decision. It is further made clear that Respondent no.1 should take a decision on the representations. It is also made clear that compensation package, if any, received by them should be adjusted with the benefits accrued to them in accordance with law if the appellants are reinstated into service. It is also made clear that if the appellants choose, they may agitate before the Chief Secretary with their respective rights also. If the appellants agitate their rights before the Chief Secretary, then the Chief Secretary shall pass a reasoned order without being influenced by the decision taken in Title Suit no.119 of 1991 pending in the court of Sub-Judge-I, Patna. If the appellants agitate their rights before the Chief Secretary, then the Chief Secretary shall pass a reasoned order without being influenced by the decision taken in Title Suit no.119 of 1991 pending in the court of Sub-Judge-I, Patna. It is contended by the learned counsel for the appellants that still vacant posts are available with the Corporation to accommodate the appellants. Further contention on behalf of the appellants is that similarly situated persons, namely, Raj Banshi and Rana Ranjit Rao, in the capacity of Assistant Engineer and District Executive Officer respectively have been absorbed in the Corporation. If that be so, the authorities are directed to verify the records and take an appropriate decision. With the above modification these Letters Patent Appeals are disposed of.