IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 10.09.2008 Coram The Honourable Mr. Justice K.K. SASIDHARAN W.P. No.17250 of 1999 Mrs. Kanchana Nair Special Sales Supervisor Gurjari ... Petitioner ..vs.. 1. Shri K. Chandrasekar 2. The Managing Director, Gujarat State Handicrafts Development Corporation Limited (Gurjari), Gandhinagar – 382 011, Gujarat. 3. The Secretary, Industries and Mines Department, Government of Gujarat, Block No.5, New Sacivalaya, Gandhinagar, Gujarat. 4. The Chief Administrative Officer, Council for Advancement of Peoples Actions and Rural Technology, India Habitat Centre, Zone 5A, (Core-C), 2nd Floor, Lodhi Road, New Delhi – 110 003. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, seeking to issue a writ of certiorarified mandamus, to call for the records of the respondents leading upto the 1st respondent's order dated 14.10.99 under reference No.EMP-M- P/KN/120, directing the petitioner's removal from service and to quash the same as illegal and invalid and direct respondents 1 to 3 to grant the petitioner salary and other perquisites from the date on which she became eligible for the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. S. Anil Sandeep for Mr. Ashok Menon For Respondent : Mr. Sanjay Mohan for M/s. Ramasubramaniam Associates for R2 Others – N.A. O R D E R This writ petition is directed against the proceedings dated 14.10.1999 on the file of the first respondent, whereby the services of the petitioner in Gujarat State Handicrafts Development Corporation was discontinued. 2. The factual matrix as culled out from the affidavit filed in support of the writ petition are as follows:- (i) The petitioner was functioning as a Stenographer in the Council of Advancement of the Peoples Actions and Rural Technology (hereinafter referred to as "CAPART") effective 1986. The said body was functioning under the Ministry of Rural Areas and Employment, Government of India and the same was set up with an intention to develop the rural India. The petitioner was initially working at New Delhi under CAPART. The husband of the petitioner was working in Gujarat State Handicrafts Development Corporation Limited (hereinafter referred to as "GURJARI"), at Delhi and he was transferred to Madras in July, 1992. Thereafter, a representation was given to the GURJARI to send the petitioner on deputation to Madras, so as to enable the petitioner to be with her family. Subsequently, as per the proceedings dated 19.8.1992 passed by the fourth respondent, the services of the petitioner was placed at the disposal of GURJARI at Madras with effect from 24.8.1994 and the petitioner took charge in GURJARI on 5.9.1992. (ii) Subsequently, the petitioner requested GURJARI to absorb her services in GURJARI. As a follow up action, the petitioner received a communication dated 22.1.1998 from the Personal Manager, GURJARI , informing her that CAPART had agreed to relieve her for permanent absorption in GURJARI and accordingly, her deputation with GURJARI had been extended upto 31.1.1998. The petitioner was also informed that GURJARI had decided to absorb her service with effect from 1.2.1998 in the very same pay and perquisites what she was enjoying at that time. https://hcservices.ecourts.gov.in/hcservices/ (iii) In pursuance of the decision taken by the GURJARI, the petitioner resigned from CAPART on 23.1.1998 with effect from 1.2.1998 as the petitioner was directed to join duty in GURJARI as per the proceedings dated 22.1.1998. Subsequently, as per the Office Order dated 1.4.1998 on the file of the fourth respondent, the petitioner was relieved from the services of CAPART with effect from 1.2.1998 as she has been employed by GURJARI as a full fledged employee on par with regular employees. Subsequently, the petitioner, as per the letter dated 28.7.1998, requested the second respondent to deduct the contribution on account of Provident Fund and Group Insurance from her salary as the same were not deducted by GURJARI. However, no action was taken to deduct the said amount. (iv) Later, she took up the issue with the respondents to pay the salary on par with the salary recommended by the Fifth Pay Commission, which was made available to all the employees. The petitioner also requested the Chairman of GURJARI as well as the fourth respondent, as per her letter dated 6.10.1999, to pay the benefits as recommended by the V Pay Commission. However, no reply has been received by the petitioner from the respondents. In the meantime, the petitioner received the impugned communication dated 14.10.1999, wherein the first respondent has referred to the communication received from the Managing Director and stated that the GURJARI has decided to discontinue her service with immediate effect. Aggrieved by the said order, the petitioner has come forward with the present writ petition. 3. Even though the writ petition was admitted and 'Rule Nisi' was issued way back in the year 1999, no counter affidavit has been filed on behalf of the respondents in answer to the contentions raised in the writ petition. 4. Learned counsel appearing for the petitioner contended that on the basis of the assurance given by the respondents, the petitioner resigned from CAPART and as per the impugned order, the petitioner was unceremoniously removed from service and as such, the said order is liable to be quashed. 5. Learned counsel appearing for the second respondent submitted that the petitioner was not regularised in the services of GURJARI and as such, the respondents were justified in passing the impugned order, removing her from GURJARI. ON POINT:- 6. The documents annexed with the writ petition shows that originally, the petitioner was employed in CAPART and as per https://hcservices.ecourts.gov.in/hcservices/ the proceedings dated 19.8.1992, the services of the petitioner was placed at the disposal of GURJARI with effect from 24.8.1992 and initially, the deputation was for a period of one year. As per Office Order dated 15.10.1992 issued by GURJARI, the petitioner was deputed in the newly created post of Special Sales Supervisor at the Madras Depot. The said Office order also indicates that the petitioner was on deputation for one year from the date of joining duty. Admittedly, the petitioner joined duty as per the proceedings dated 15.10.1992. As per proceedings dated 9.11.1994, the deputation of the petitioner in GURJARI was further extended for a period of one year from 24.8.1994 on the same terms and conditions as contained in the earlier office order dated 15.10.1992. The deputation has been subsequently extended from year to year as evident from the proceedings found in the typed set of papers. 7. While the matter stood thus, the petitioner, as per her letter dated 25.11.1997 requested GURJARI to absorb her in the services of GURJARI and to post at Chennai. The said request was taken up by GURJARI with CAPART and as per the proceedings dated 5.1.1998, CAPART informed GURJARI that they have no objection for the permanent absorption of the petitioner in GURJARI with effect from 31.1.1998. In the very same proceedings, the petitioner was directed to tender her resignation so as to forward the same to CAPART. In accordance with the said letter, GURJARI, by proceedings dated 22.1.1998, informed the petitioner that GURJARI have decided to absorb the services of the petitioner in GURJARI with effect from 1.2.1998 in the very same scale of pay and posting and she was advised to tender her resignation from CAPART and the same was directed to be forwarded to GURJARI for the purpose of completion of formalities. 8. Accordingly, the petitioner has tendered her resignation, as per letter dated 23.1.1998 addressed to CAPART and the same was forwarded by GURJARI. The said resignation was accepted by CAPART as per the office order dated 1.4.1998 and the petitioner was relieved from the services of CAPART with effect from the After Noon of 1.2.1998. Accordingly, the petitioner has been working in GURJARI with effect from 1.2.1998. The absorption of the petitioner in GURJARI as per the earlier decision taken by GURJARI is not in dispute. However, very strangely, as per the impugned order dated 14.10.1999, the respondents have informed the petitioner that the Board has decided to discontinue her services. The copy of the note dated 12.10.1999 issued by the Managing Director shows that the Board of Directors of the Corporation in their meeting dated 30.9.1999 have decided not to regularise the services of the petitioner and the second respondent was instructed to discontinue the services of the petitioner with immediate effect. https://hcservices.ecourts.gov.in/hcservices/ 9. It is evident from the proceedings referred to above that the petitioner was unceremoniously sent out from the respondent-Corporation as if the petitioner was not in the services of GURJARI. Admittedly, the respondent is a Corporation, which is a State within the meaning of Article 12 of the Constitution of India and as such, the respondent-Corporation cannot act like a private individual and the services of an employee cannot be terminated according to their whims and fancies. The impugned order does not show any reason for termination of the petitioner. In case, the petitioner has indulged in any activities prejudicial to the interest of the respondent-Corporation, they could have issued notice to her. 10. It is not the case of the respondent-Corporation that the service of the petitioner was discontinued on the basis of proved mis-conduct. The writ petition was admitted in the year 1999 and the petitioner has been continuing in service on the basis of interim order granted by this Court. Since the impugned order does not contain any reason for termination and on account of the pendency of the writ petition for all those years, it is not in the interest of either parties to avail other remedies available under law. 11. The impugned order is liable to be quashed also for the reason that no notice has been given to the petitioner before passing the said order. The impugned order involves civil consequences in so far as the petitioner is concerned and as such, the petitioner should have been taken into confidence before passing the said order. 12. In SAHARA INDIA (FIRM), LUCKNOW v. COMMISSIONER OF INCOME TAX reported in 2008(6) SCALE 733, the Apex Court observed that the phrase "natural justice is not capable of a precise definition and the said principle evolved under the common law is to check arbitrary excise of power by the State and its functionaries and held thus:- "11. Rules of "natural justice" are not embodied rules. The phrase "naturaljustice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly, i.e. fair play in action. As observed by this Court in A.K. Kraipak & Ors. Vs. https://hcservices.ecourts.gov.in/hcservices/ Union of India & Ors. , the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see: Income Tax Officer & Ors. Vs. M/s Madnani Engineering Works Ltd., Calcutta ). 17. In Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. , explaining as to what is meant by expression 'civil consequence', Krishna Iyer, J., speaking for the majority said: "'Civil Consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence." (emphasis supplied) 13. In DELHI TRANSPORT CORPORATION v. D.T.C. MAZDOOR CONGRESS reported in (1991 SUPPL.(1) SCC 600, the Apex Court held that a permanent employee of a statutory Authority, Corporation or instrumentalities under Article 12 of the Constitution of India got a lien on the post till he attains superannuation or compulsorily retired and held thus:- " 231. The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. https://hcservices.ecourts.gov.in/hcservices/ 232. The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill- afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them." 14. The Apex Court in D.K. YADAV v. J.M.A. INDUSTRIES LTD. reported in (1993 (3) SCC 259) underlined the necessity of conducting departmental enquiry before the termination of the service of an employee and held thus:- "14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice." 15. In view of the aforesaid reasons, the impugned order dated 14.10.1999 is quashed and the matter is remitted to the first respondent to pass appropriate orders on merits and as per law, but after taking into account the earlier proceedings, whereby the GURJARI has decided to absorb the services of the petitioner and on the basis of which, the petitioner resigned from CAPART. https://hcservices.ecourts.gov.in/hcservices/ 16. The writ petition is disposed of, subject to the above observations. No costs. Ssa. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Managing Director, Gujarat State Handicrafts Development Corporation Limited (Gurjari), Gandhinagar – 382 011, Gujarat. 2. The Secretary, Industries and Mines Department, Government of Gujarat, Block No.5, New Sacivalaya, Gandhinagar, Gujarat. 3. The Chief Administrative Officer, Council for Advancement of Peoples Actions and Rural Technology, India Habitat Centre, Zone 5A, (Core-C), 2nd Floor, Lodhi Road, New Delhi – 110 003. + 2 ccs to Mr. Ashok Menan, Advocate SR no. 5153 W.P. No.17250 of 1999 SGL(CO) SR/3.10.2008 https://hcservices.ecourts.gov.in/hcservices/