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2012 DIGILAW 326 (UTT)

RENU BISHT v. GARHWAL MANDAL VIKAS NIGAM LTD.

2012-06-26

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. By means of this writ petition, the petitioners have sought the following relief:- I. Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 28-4-2011 passed by the respondent no.2 contained as Annexure No. 1 and 2, after summoning the original of the same from the respondents. II. Issue a writ, order or direction in the nature of mandamus commanding the respondents to allow the petitioners to continue as Chief Manager/Regional Manager in the establishment of respondent no.1 and to pay them their salary regularly every month. III. Issue an ad-interim mandamus to the aforesaid effect. IV. Issue a writ, order or direction, which this Hon’ble Court may deem fit and proper under the circumstances of the case. V. Award the cost of the petition. 2 2. According to the petitioners, brief facts giving rise to the present writ petition, are that an advertisement was issued by the respondent no.2 inviting applications for various posts and in response thereto, the petitioners applied for the post of Chief Manager/Regional Manager. After undergoing the selection process, both the petitioners were selected for being appointed on contractual basis for a period of one year and appointment letter to that effect was issued to each of the petitioners, which have been annexed as Annexure-5 to the writ petition. 3. The petitioners resumed their duty as Chief Manager/Regional Manager w.e.f. 29-7-2010 and their work remained always satisfactory. After a short time, the respondent no.3 started making false and baseless complaints against the selection and appointments of the petitioners, as the respondent no.3 was interested in getting its own men appointed on the said post and ultimately the State Government directed the Commissioner, Garhwal Mandal Pauri to conduct an enquiry in the matter of appointment and in the enquiry report it was held that the appointments were made in a legal manner and the only objection was to the effect that before posting the petitioners, approval of the Board of Directors was not obtained by the Managing Director. According to the petitioners, that is not a condition under the relevant service rules of the respondent no.1. According to the petitioners, that is not a condition under the relevant service rules of the respondent no.1. The respondent no.3 called on strike so as to create pressure for terminating the services of the petitioners, which resulted into great loss to the respondent no.1 and, ultimately, the services of the petitioners were terminated by giving them one month’s salary in lieu of the notice. 4. The grievance of the petitioners is that by the impugned order the services of the petitioners were terminated illegally without paying one month’s salary to them while it was incumbent upon the respondent no.2 to provide the bank draft along with the impugned orders, hence the present writ petition has been filed. 5. On behalf of the respondent nos. 1 and 2 counter affidavit has been filed. It has been stated in paragraph no.4 of the counter affidavit that the engagement of the petitioners with the respondent nos. 1 and 2 was a contractual appointment for a period of one year with a condition that the services of the petitioners may be terminated prior to the expiry of aforesaid period of one year by giving them a notice for one month or one month’s salary in lieu of the notice. It has also been stated in paragraph no. 11 of the counter affidavit that the impugned orders of termination were passed on 28-4-2011 and the requisite bank drafts were prepared on 29-4-2011 and except the petitioner no.1 all other employees whose service have been terminated on 28-4-2011 accepted the bank drafts, but the petitioner no.1 in spite of several intimations, knowingly avoided the acceptance of the bank draft. Subsequently, the petitioner no.1 also accepted the bank draft under protest. 6. On behalf of the petitioners, rejoinder affidavit has been filed and in the rejoinder affidavit, the averments made in the writ petition have been reiterated. 7. I have heard learned counsel for the parties and perused the record. 8. In the course of arguments, learned counsel appearing on behalf of the respondent nos. 1 and 2 has submitted that this Court in Writ Petition (S/S) NO. 443 of 2011, Babita Badola Vs. State of Uttarakhand and others, wherein similar controversy was involved, has partly allowed the writ petition by order dated 24-2-2012 and that the present writ petition may be decided in terms of the order dated 24-2-2012. 9. 1 and 2 has submitted that this Court in Writ Petition (S/S) NO. 443 of 2011, Babita Badola Vs. State of Uttarakhand and others, wherein similar controversy was involved, has partly allowed the writ petition by order dated 24-2-2012 and that the present writ petition may be decided in terms of the order dated 24-2-2012. 9. I have pondered over the matter and have perused the appointment letter issued to the petitioners. In the service condition no.1, it is specifically mentioned that the petitioners are being engaged on contract for a period of one year as full time employment from the date of their joining. It is also mentioned in condition no.3 appended to the appointment letter that the services of the petitioners can be terminated during the aforesaid contractual period of one year by giving them one month’s notice or one month’s salary in lieu thereof. 10. Undisputedly, the Management of Garhwal Mandal Vikas Nigam is empowered to dispense with the services of the petitioners by giving them one month’s notice or one month’s pay in lieu of the notice. But at the same time, the order of termination must be a reasoned and speaking. In the case at hand, the impugned termination order does not speak that the establishment of Garhwal Mandal Vikas Nigam does not require the services of the petitioners any more or that the work of the petitioners was not found satisfactory or that anything adverse has come against the petitioners so as to dispense with the services of the petitioners. No such reason has been assigned in the order of termination of services passed against the petitioners. In such circumstances, I am of the considered view that the impugned orders as has been passed in the midway against the petitioner prior to expiry of the period of one year from the date of taking over charge by the petitioners is not tenable in the eye of law. To that extent, the impugned order appears to be arbitrary. 11. In paragraph no. 7 of the writ petition, the petitioners have stated that they have joined their post on 29-7-2010, therefore, the period of contract between the parties has already ended on 28-7-2011. The services of the petitioners have been dispensed with by order dated 28.4.2011 passed by the respondent no.2. In such circumstances, the respondents no. 11. In paragraph no. 7 of the writ petition, the petitioners have stated that they have joined their post on 29-7-2010, therefore, the period of contract between the parties has already ended on 28-7-2011. The services of the petitioners have been dispensed with by order dated 28.4.2011 passed by the respondent no.2. In such circumstances, the respondents no. 1 and 2 are liable to pay the salary to the petitioners from 28-4-2011 to 28-7-2011 i.e. for the remaining period of their contract. The writ petition deserves to be partly allowed to the above extent. 12. The writ petition is partly allowed with a direction to the respondents to pay to the petitioners the amount of salary for the remaining period of their one year’s contract, i.e. from 28-4-2011 to 28-7-2011 within one month from today, after deducting the amount already paid/received by the petitioners. Costs easy.