R.S.A. No. 2169 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2169 of 2009 (O&M) Date of Decision : 14.5.2010 Yash Pal Sharma .......... Appellant Versus Central Institute of Hand Tools, Jalandhar & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. D.K. Bhatti, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal by the plaintiff / appellant is directed against the judgment and decree dated 3.1.2009, passed by the learned Courts below, vide which suit filed by the plaintiff / appellant, for declaration to challenge his order of removal from service, with a consequential relief of mandatory injunction, claiming all consequential benefits, stands dismissed. The plaintiff / appellant challenged the action of the Management in removing him from service, in view of the abolition of the post of Assistant Manager (Consultancy). The plaintiff / appellant, was initially appointed in the year 1984 as Assistant Manager (Metal Finishing). On abolition of the Metal Finishing Division, the services of the plaintiff / appellant were utilized as Assistant Manager (Consultancy). R.S.A. No. 2169 of 2009 -2- Thereafter, on abolition of the post of Assistant Manager (Consultancy), he was removed from service for want of post. The appellant challenged his removal, on the plea, that abolition of the post was outcome of malice, on the part of defendant No.3, but he failed to substantiate the allegations of mala fide against defendant No.3. The learned trial Court dismissed the suit filed by the plaintiff / appellant. In appeal, the findings of the learned trial Court were affirmed by the learned lower appellate Court, by recording the following findings :- “ In case S.S. Lamba Vs. Punjab State Leather Development Corporation Ltd. 1994(4) Service Cases Today-192, our own Hon'ble High Court has held that the jurisdiction of the court to interfere with the action of the employer to create or abolish the post is limited. It has been held that proved malice or patent arbitrariness or violations of statutory provisions are few grounds on which action of the employer to abolish the post can be interfered with. It has been held that the courts have repeatedly recognized the prerogative of the employer to create posts or cadres or to abolish one or more than one posts. It has been held that the requirement of the man-power for a particular service is a matter which primarily falls within the domain of the employer and the courts cannot ordinarily substitute their opinion for that of the employer. It has been held that where the employee challenges action of the employer for R.S.A. No. 2169 of 2009 -3- abolition of post, which may have adverse effect on the service of the employee, burden lies upon him to establish the breach of the constitutional provisions or statutory provisions or malice against the employer and the vague allegations of malice cannot furnish valid basis for interference by the court. 10. Keeping in view the abovesaid law referred by the ld. counsel for the defendants / respondents in the case in hand, no such allegation of malafide, arbitrariness or violation of statutory provisions of the law, have been proved by the plaintiff / appellant beyond doubt and there is sufficient and convincing evidence on the file that the post of the plaintiff / appellant was abolished as he failed to achieve the target of Rs. 10400/- per month given by himself. Therefore the ld. lower court has rightly came to the conclusion that the impugned order is legal and valid and rightly refused to interfere with the same and dismissed the suit of the plaintiff / appellant. Therefore the findings of the ld. lower court on all the issues are affirmed.” Mr. D.K. Bhatti, learned counsel appearing on behalf of the appellant contended, that the following substantial questions of law arise for consideration in this appeal : 1. Whether the judgments and decree passed by the learned Courts below is outcome of misinterpretation of the service conditions and the provisions of the Constitution of India protecting the rights of the employee, therefore, perverse? R.S.A. No. 2169 of 2009 -4- 2. Whether in the facts and circumstances of the case, the appellant was required to be adjusted in some other department on abolition of the post? In support of the substantial questions of law, the learned counsel for the appellant contended, that the judgments and decree passed by the learned Courts below cannot be sustained, as arbitrary powers were exercised by the employer, in terminating the services of the appellant by adopting, the method of abolition of the post. That the real object of abolition of the post was, that the appellant had failed to achieve the target set for him while absorbing him as Assistant Manager (Consultancy), after the closure of the Metal Finishing Division. It was further the contention of the learned counsel for the appellant, that once the appellant was a confirmed employee, the respondent / employer, was bound to offer him alternative post, as was done, when he was adjusted as Assistant Manager, (Consultancy), on closure of the Metal Finishing Division. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. As held by the learned lower appellate Court, it is the prerogative of the employer, to create posts in a cadre or to abolish any posts, depending upon the requirement. The scope to interfere, with the right of abolition of post with the Court, is very limited, the Court can only interfere if the object is oblique, and suffers from mala fide. The learned Courts below on R.S.A. No. 2169 of 2009 -5- appreciation of evidence have recorded a concurrent finding of fact, that the appellant failed to prove any mala fide. No fault, therefore, can be found with the action of the respondents in abolishing the post held by the appellant. The second contention of the learned counsel for the appellant that alternative post should have been offered to the plaintiff / appellant, also cannot be sustained. Firstly, for the reason, that it was not disclosed either in the plaint or in evidence, as to which post was available, on which the appellant could be adjusted. Secondly, it was not even, the case set up by the plaintiff / appellant in either of the learned Courts, below claiming an alternative relief. This plea is not available for the first time in regular second appeal. The suit filed was to challenge, his order of removal on abolition of the post. The appellant having failed to prove oblique motive or mala fide in abolition of the post, no fault can be found with the judgments and decree passed by the learned Courts below. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. 14.5.2010 ( VINOD K. SHARMA ) 'sp' JUDGE