In the High Court of Punjab and Haryana at Chandigarh [CASE NUMBER] Date of decision:20.10.2011 [ENTITY] Appellant v. The [ENTITY] and others Respondents CORAM : HON'BLE MR. JUSTICE MOHINDER PAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? Present: Mr. [ENTITY], Advocate for the appellant. Mr. [ENTITY], Advocate for Mr. [ENTITY], Advocate for respondents No.1 to 3. [ENTITY], J.
This is regular second appeal against the judgment and decree passed by learned lower appellate Court vide which appeal of the appellant- plaintiff-[ENTITY] against the judgment and decree of the trial Court has been dismissed.
Necessary facts for disposal of this appeal are that the plaintiff- appellant was employed in the Indian Red-Cross Society, St. John. Ambulance Association, District Red-Cross Society, Bathinda in the year 1965-66 as a Trained Dai on permanent basis and against permanent vacancy. During her service, the plaintiff-appellant showed exemplary results and she was awarded commendation certificate during the year 1969-70 by the Indian Red Cross Society and on 13.5.1974 by the Chairman of the Family Planning Association, Punjab. She was promoted as Lady Health Visitor and posted as such at Maur Kalan Centre in 1976. In 1979, Smt. [ENTITY], who was junior to the appellant, was promoted from [ENTITY] and appointed as Supervisor of Women Working Hostal, Bathinda. As the appellant made representation against her promotion, [ENTITY] and [ENTITY], Secretary of the Red-Cross Society had nursed a grudge against her and they started mentally harassing her on one pretext or the other and started giving warnings to her on flimsy, false and frivolous grounds. Due to their inimical attitude towards the appellant, they played a nefarious role to get withhold her efficiency bar which she was to cross on 1.8.1983. It has been alleged that they influenced respondent No.1 to terminate her services vide letter bearing endorsement No.DRC/3431 dated 17.4.1984 without assigning any reason simply on the wrong notion that her services were no longer required as the Centre had been closed and the post had been abolished. The appellant filed a suit against the defendants (respondents herein) for declaration to the effect that the above order conveyed by endorsement dated 14.7.1984 passed by Deputy Commissioner-cum-District Collector-cum-President, District Red Cross Society, Bathinda (respondent No.1) terminating her services was illegal, null and void and liable to be set aside on the grounds that the plaintiff was recruited against a permanent post and she was confirmed against the post of Trained Dai which was permanent post; she belonged to Scheduled Caste and her services could not have been terminated till the existence of the Red Cross Society and the persons junior to the plaintiff were still working in the Red Cross Society. The President, Red-Cross Society did not follow the principle of "First come, last go"; hence the impugned order was unconstitutional and was hit by [SECTION] of the [ACT] and the impugned order was passed with bias mind and the same was not a speaking order and that the impugned order was liable to be set aside.
After notice, the suit was contested by the defendants that the order passed by respondent No.1 was valid, legal and constitutional. The appellant was recruited as a Trained Dai in the years 1965-66 on purely temporary basis. She was neither confirmed nor she was posted against a permanent post. The work and conduct of the appellant during the year 1978-79 was found below average as there were number of complaints against her as she used to remain absent from duty. She was an illiterate lady whereas Smt. [ENTITY] was Matriculate and also a Trained [ENTITY]. She was given show cause notice (Ex.D.7) and explanation submitted by her was considered by the appointing authority and the explanation was not found to be satisfactory. The appellant was given one months's pay at the time of the termination of her services.
After framing issues, the trial Court dismissed the suit of the plaintiff holding that the services of the plaintiff were terminated in accordance with the Rules regulating her service conditions in the Red Cross Society. The order passed by respondent No.1 was valid and according to the Rules governing the service conditions of the plaintiff. The plaintiff went in appeal wherein the judgment and decree of the trial Court was affirmed. Aggrieved from this order, the plaintiff-appellant has come in appeal.
I have heard learned counsel for the parties and have gone through the records of the Courts below with their assistance.
It is not disputed that the plaintiff-appellant has joined the Red Cross Society, Bathinda in the year 1965-66 as Trained Dai. One Smt. [ENTITY] was junior to her. She was promoted as Supervisor and as the appellant had made representation against her promotion, [ENTITY] in collusion with [ENTITY], Secretary of the Red-Cross Society, Bathinda got her terminated from the service. The respondents have contended that she remained absent from duty in the year 1978-79, however, it has not been brought to my notice that during that period any disciplinary proceedings were initiated against or any action has been taken against her. The Service Rules governing the service conditions of the appellant prescribe for termination of service of a temporary employee by the appointing authority by giving one month's notice or by paying salary in lieu thereof or according to the terms of his/her appointment. However, the respondents could not produce the appointment letter of the appellant from which the terms and conditions of her appointment could be ascertained. Respondent No.1 has passed the order of termination on the ground that the services of the appellant were hereby terminated with immediate effect, as these were no longer required by the Indian Red-Cross Society, District Branch Bathinda, due to the closure of this centre and abolishing her post. The appellant was an employee of Indian Red-Cross Society and was not an employee of a particular centre. [ENTITY], Secretary, Red Cross-Society, Bathinda in his evidence has admitted that junior employees to the appellant have been retained in service. However, he has not been able to produce the appointment letter of the appellant that she was a temporary employee. Even if the post was to be abolished, the services of the persons, who were junior to the appellant were to be terminated first.
Learned counsel for the appellant relied upon the judgment of the Supreme Court in The [PRECEDENT] in which it has been held as under:-
"Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment."
In [PRECEDENT], the Supreme Court held as under:-
"In the instant case as we have stated already hereinbefore that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment, yet considering the attendant circumstances which are the basis of the said order of termination, there is no iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of mis-conduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without complying with the mandatory procedure laid down in [SECTION] of the [ACT]."
A perusal of the aforesaid decisions shows that the order of termination passed by respondent No.1 is not only arbitrary but also discriminatory in as much as the juniors in rank were retained by respondent No.1 while terminating the services of the appellant from service on the ground that her services were no longer required. Certainly, the appointing authority can terminate the temporary service of an employee in terms of the order of employment on the ground that the service of the temporary employee was unsatisfactory or that he was not suitable for the job assigned or for any such similar reasons. The service of a temporary employee can be terminated on the ground that her service is no longer required only when she has been positioned as junior most in the temporary cadre. When other junior temporary employees are retained in service, senior in rank cannot be shown the door on the ground that her service was no longer required. Any such order passed by the authority would be definitely discriminatory.
This Court in [PRECEDENT], through its Registrar, Chandigarh, 2011 (2) S.C.T. 578 has while dealing with termination from service of temporary employee while retaining the junior employees, held as under:-
"Whether services of a temporary employee who is senior to other temporary employees, could be terminated only on the ground that his services are no more required (No). Held that the order of termination of services of petitioner is not only arbitrary but also discriminatory. While terminating his services not only juniors to him were retained but a new temporary employee was also recruited on the same very day, in his place. Even if the service record of the petitioner is assumed to be unsatisfactory, he should have been given opportunity to be heard, before terminating him."
Applying the ratio of the above decisions to the present case, even if the appellant was not a permanent employee, as a temporary employee she remained in service till 1984 and served for about 20 years, her services cannot be dispensed with by saying that she is a temporary employee and no opportunity is required to be given to her. Since she joined the service in the year 1965, by now she must have attained the age of superannuation.
At this stage, the damage suffered by her cannot be restored. She cannot be taken back in service as she might have attained the age of superannuation by now. Otherwise also, even if she was allowed to join the service, she must have retired by now. However, keeping in view the fact that she remained in service for about 20 years, she cannot be given the benefit of pension as the job of Red-Cross Society is not pensionable.
Resultantly, the appeal is allowed and the judgments and decrees of the Courts below are set aside. The appellant is reinstated in the service. However, as she has not worked during the period of termination, and at this stage she must have attained the age of superannuation and keeping in view the fact that her writ petition has been allowed, she will be paid `1 Lac as lump-sum costs which shall be given to her within a period of three months from the date of receipt of copy of this order. October 20, 2011. ([ENTITY]) Judge *hsp*