Civil Writ Petition No. 15424 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 15424 of 2009 Date of Decision: 6.11.2009 Union of India and Another …Petitioners Versus Central Administrative Tribunal, Chandigarh and Another …Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE. HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Aman Chaudhary, Advocate Central Government Standing Counsel for the petitioners. Kanwaljit Singh Ahluwalia, J. The present writ petition filed by Central Government Industrial Tribunal-cum-Labour Court through its Presiding Officer, on behalf of the Union of India, assail an order passed by the Central Administrative Tribunal, Chandigarh Bench at Chandigarh (hereinafter referred to as “Tribunal”) whereby the termination of respondent No.2 was held to be illegal and was quashed and set aside. The Tribunal has taken the view that an employee who applied for the post through proper channel, was subjected to interview and Civil Writ Petition No. 15424 of 2009 2 selected cannot be terminated after having rendered 23 years of service especially when his only five years of service was left, on the ground that at the time of initial appointment, the respondent, instead of having five years of service as Upper Division Clerk was having experience of three and a half years of service as Lower Division Clerk. To understand the controversy raised, it would be necessary to advert to the facts of the case. T.S. Bhairday, respondent No.2, was appointed as Clerk in the office of Financial Commissioner, Punjab, on 30.11.1978. In the year 1983, through proper channel, he applied for the post of Secretary to the Court of Presiding Officer, Central Government Industrial Tribunal- cum-Labour Court. An interview was held. On selection, appointment letter (Annexure A2) was issued in favour of respondent No.2 on 9.8.1983. A perusal of the appointment letter shows that T.S. Bhairday subject to his order of relieve from the office of Financial Commissioner, Punjab, was appointed as Secretary to the Court in the office of the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh. This letter was followed by another letter issued by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, on 31.10.1986, wherein it was stated that taking into consideration the quality of work, conduct and character, T.S. Bhairday, respondent No.2, having found suitable is appointed in a quassi-permanent capacity under the Government of India to the post of Secretary to the Labour Court. On 1.8.2001, Presiding Officer, Central Government Industrial Tribunal- cum-Labour Court, Chandigarh, being head of department, granted sanction that the service rendered by respondent in the office of Civil Writ Petition No. 15424 of 2009 3 Financial Commissioner, Punjab, w.e.f. 17.12.1979 to 8.8.1983 be construed as a qualifying service for the purpose of pension and other pensionary benefits and the same shall be treated as a continuous service. It is averred in the original application filed by the respondent before the Tribunal that from 1983 till Rajesh Kumar, Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Sector 18, Chandigarh, joined, the employee earned outstanding reports. In the original application filed before the Tribunal, Rajesh Kumar has been impleaded as respondent No.3 and allegations of malafide have also been levelled. On 10.7.2006, a charge sheet was served upon respondent No.2-employee wherein it was stated that under the Rules, no Lower Division Clerk, could be appointed as a Secretary to the Court as the Rules prescribed five years experience as Upper Division Clerk for being appointed as a Court Secretary. It was stated in the charge that Audit Inspection Team had raised an objection in the month of July 1984, that the initial appointment of respondent No.2-employee was not in consonance with the rules. In reply to this charge, employee stated that he had applied for the post of Secretary to the Court and his application was forwarded through proper channel by the Under Secretary, Revenue, Office of Financial Commissioner, Punjab. The employee was interviewed along with other candidates and was selected by the competent authority. Therefore, appointment letter was issued to him. He worked with many Presiding Officers from 1983 to 2006 and had earned outstanding reports. Taking into consideration quality of work, conduct and character, he was appointed in quasi-permanent Civil Writ Petition No. 15424 of 2009 4 capacity. Furthermore, he had tendered his resignation in the office of Financial Commissioner, Punjab, from the post of Clerk. In the original application, the employee had given various reasons as to why Presiding Officer was annoyed with him. On 5.10.2007, vide order, impugned before the Tribunal (Annexure A1), services of the petitioner were terminated on the ground that there was irregularity and illegality in appointment and the employee being custodian of the entire service record had not brought the audit objections to the notice of the Presiding Officer. This fact was controverted by the employee by stating that audit objections were duly replied by the then competent authorities i.e. the Presiding Officer in the year 1984 and then in 1991 and audit objection No.6 was finally settled and dealt with by Mr. M.S. Sullar, the then Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chandigarh. In response to the original application filed, employer raised preliminary objections before the Tribunal that the employee had not availed an alternative remedy of appeal and revision, therefore, his application was liable to be dismissed. The Tribunal relied upon the judgment of the Hon'ble Apex Court in M.A.Hameed v. State of A.P. and Another (2001) 9 Supreme Court Cases 261 and held that no justification is made out to terminate the services of the employee after he had rendered service for 23 years as in M.A.Hameed's case (supra) the Hon'ble Apex Court held that action, if any, should be taken against the employee within reasonable time and any action taken after 11 years was not only belated but had caused more harm than the good. The Tribunal further held that Civil Writ Petition No. 15424 of 2009 5 services of the employee could not be terminated except under Article 311(2) of the Constitution of India. The Tribunal further held that the employee was not afforded an opportunity of being heard as his service could not be terminated except under Article 311(2) of the Constitution of India. The Tribunal had not only set aside the order of termination but also recommended that relaxation be given to the employee for counting his period of experience. We have heard Mr. Aman Chaudhary, Advocate, Central Government Standing Counsel, representing Union of India and the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chandigarh. He has very conveniently stated that no action could be taken from the year 1984 to 2007 against the employee as the entire record including the service book were in custody of the employee and, therefore, audit objections raised in the years 1984 and 1991 were not brought to the notice of the Presiding Officers. The audit objection No.6 raised in the year 1984 read as under:- XXX XXX XXX XXX XXX XX “6. APPOINTMENT OF STAFF On the formation of the office of the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, the following posts of Category 'C' were sanctioned on year to year basis and presently these posts stand sanctioned upto Feb. 1985 vide letter No. A-11020/36/82-CLT dated 23rd of Feb. 1984: 1. Secretary to Court (Rs.425-700 + Civil Writ Petition No. 15424 of 2009 6 Rs.40/- Spl. Pay) One 2. Personal Asstt. (425-700) One. 3. U.D.C. (Rs.330-560) One. 4. L.D.C. (Rs.260-400) One. According to the Govt. of India letter No. A/11020/36/82-CLT dated 12.5.83 Shri A.K. Srivastva, Director, Ministry of Labour, New Delhi, the post of Secretary to Court could be filled up by deputation and the posts of U.D.C. was to filled up by promotion. However, it was advised to start action to fill up the posts of U.D.C. by direct recruitment on the assumption that the rules will suitably be relaxed. Further it was clarified that final orders in this regard may be passed only after the rules are finally relaxed”. XXX XXX XXX XXX XXX XX This audit objection was duly replied in the year 1984-85. The extract of the reply read as under:- XXX XXX XXX XXX XXX XX “Reference Para 6 It was a new office and no staff was provided by the Ministry despite the fact that the Presiding Officer took over in mid-April 1983. After drawing blank from the Staff Selection Commission applications were invited from the Local Employment Civil Writ Petition No. 15424 of 2009 7 Exchange and other Government Agencies. A number of candidates were sponsored by the Employment Exchange and some candidates also appeared from the High Court, Chandigarh Administration (U.T.) and Punjab Government. All the present incumbents were recruited on temporary basis to expedite the working of the Tribunal. The Secretary was previously employed in the Punjab Government and his assignment from the initial slab in the pay scale saved department of extra expenditure which would have otherwise gone waste in the shape of Deputation allowances”. XXX XXX XXX XXX XXX XX We are not satisfied with the submissions made by Mr. Aman Chaudhary, Advocate, Central Government Standing Counsel, appearing for the petitioners. We are also not inclined to accept explanation regarding delay. Respondent No.2-employee was appointed in the year 1983. The audit objection was raised in the year 1984 and it was duly replied. Thereafter, the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, on 31.10.1986 communicated to the employee that he is appointed in a quasi-permanent capacity under the Government of India. Still further, in the year 2001 services rendered by respondent-employee in the State of Punjab from 17.12.1979 to 8.8.1983 was treated as a qualifying service for the purpose of pension and sanction was granted to consider the same as Civil Writ Petition No. 15424 of 2009 8 continuous service. Respondent No.2-employee who worked in a clerical cadre under various Presiding Officers, who hold a rank of District & Sessions Judge cannot wield the clout to make us believe that audit objections were not brought to the notice of Presiding Officers of the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh. We have perused the judgment rendered by the Hon'ble Apex Court in M.A.Hameed's case (supra) and relied upon by the Tribunal, we are of the view that the Tribunal was right in holding that services of the employee cannot be terminated after 23 years especially when employee has to superannuate after five years of service. Therefore, there is no infirmity in the order passed by the Tribunal and no interference is warranted. Dismissed. No orders as to the costs. (T.S. Thakur) (Kanwaljit Singh Ahluwalia) Chief Justice Judge November 9th, 2009 “DK”