CWP No. 6522 of 1986 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 6522 of 1986 Date of decision September 27,2011 Brij Bihari Lal Nirwani ....... Petitioner Versus State of Haryana and another ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Naresh Kumar Joshi, Advocate and Ms. Sangeeta, Advocate for the petitioner. Ms. Kirti Singh, DAG., Haryana. Mr. D. S. Bali, Senior Advocate with Mr. Avtar Krishan, Advocate for respondent No.2. **** 1. Whether reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). 1. The writ petition is filed to quash a resolution passed by the Haryana State Agricultural Marketing Board (hereinafter called as 'the Board') to abolish the post of Chartered Accountant, consequently terminating the services of the petitioner by an order issued on 15.1.1985. The petitioner had challenged this order to an Appellate Authority by appeal and the appellate authority had also dismissed the appeal on 21.10.1986. Petition contains a challenge to the validity of these orders. Pursuant to an advertisement for appointment issued on 20.2.1980, calling for applications from the Chartered Accountants having professional qualification with at least one year experience, the petitioner had been CWP No. 6522 of 1986 2 appointed on 16.5.1980. The petitioner's contention is that as a Chartered Accountant he had been assigned several duties relating to management of accounts and the petitioner files proof for the fact of the multifarious duties. This was in the context of the Board's contention that the appointment itself was necessitated by World Bank's conditions for fiscal aid to the Board's activities. World Bank project did not exist any longer and was referring to an agenda item on 4.2.1982, the petitioner would state that his duty was of scrutinizing and processing the business for the next financial year among other activities; by yet another resolution on 17.2.1982, it was directed that the Chartered Accountant shall head the Branch from 1.3.1982 and the Chartered Accountant was also required to submit an organizational chart of the Account Branch; Subsequently even the bifurcation of the Account Branch was contemplated and brought under the supervision of Chartered Accountant; Still later in the year 1983 he had been entrusted with the duties to conduct enquiry into certain irregularities in the purchase of some materials. All these have been relied on by the petitioner to show the nature of activities which he was performing as a Chartered Accountant. 2. According to the petitioner he was sought to be removed by the proceedings issued on 15.1.985 on the alleged ground of the abolition of the post and it was stated that a month's salary was being sent in lieu of notice as required under the terms of appointment. The petitioner would point out even the salary sought to be paid through a cheque drawn on Punjab National Bank on 15.1.1985 bounced and the bounced cheque with the Banker's advice has also been filed in Court. 3. Adverting to the contentions of the petitioner that the termination of service was illegal, the respondent would try to justify its action by stating that even as per the terms of appointment the petitioner had been held only to a temporary post and he has no right to continue in CWP No. 6522 of 1986 3 service. It was further stated that originally a condition had been imposed by the World Bank that the Board would have a Chartered Accountant to maintain the accounts on commercial lines during a span of five years when loans were to be distributed but since the project undertaken through an Agricultural Re-finance Corporation founded by the World Bank came to an end, the Board was of the view that there was no requirement for the Chartered Accountant and therefore a decision was taken to abolish the post. 4. Learned counsel for the petitioner would contend that the advertisement itself did not stipulate that it was a temporary post or that it was in any way connected to the World Bank project. The petitioner would refer to the fact that the post of Chartered Accountant itself was a cadre post provided under the relevant service rules of 1974 issued under Section 43 of the Punjab Agricultural Produce Market Act 1961. Learned counsel would refer to rule 3 which stipulates the number and character of posts and Appendix-A showed the various posts which included the post of Chartered Accountant. Rule 3 makes a provision that there is always inherent right of the Board to add to or reduce the number of posts or create new posts with different designations, either permanently of temporarily. Learned counsel would also refer to rule 11 that prescribes a period of probation to contend that if at all, a person could not be retained on probation for a period in excess than 2 years, if appointed by direct appointment and since in this case, the petitioner had been appointed on 16.5.1980 and continued till 15.1.1985, it must only be taken that the post had become permanent that he had completed the period of probation and the services could not have been terminated otherwise than in accordance with the relevant rules. 5. I am prepared to accept the contention raised by the petitioner that though the order of appointment was stated to be for a CWP No. 6522 of 1986 4 temporary post, by the fact that he continued beyond a period of two years and by the further fact that the post of Chartered Accountant was encadred under the rules, the termination could not have been done otherwise in accordance with the relevant rules. The issue would only be that for a termination of services of a qualified Chartered Accountant whether the relief of reinstatement would be appropriate. There is enough case law on the powers of the Court that finds the termination to be invalid to consider whether or not reinstatement should be a sine quo non . Learned counsel refers to several decisions that hold that the petitioner could not have been terminated in the manner that it was done. I do not propose to enter into the realm of law to find that the termination was illegal for I have held that the termination was bad in law. Even then, when this case comes up for hearing after nearly 25 years after the case was instituted and when the person had been terminated as early as on 15.1.1985 there will be no purpose in directing the reinstatement. Considering the fact that the petitioner's salary at the time of his termination was `2,777/- per month and by the fact that he had 5 years of service at the time when his services were pre-maturely terminated, I would find that a compensation of `1 lac would advance the cause of justice. The same shall be paid by respondent No.2 within four weeks from the date of receipt of copy of this order, failing which it shall be paid with interest at 6% per annum from today. 6. The writ petition is allowed on the above terms. (K. KANNAN) JUDGE September 27 , 2011 archana