IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.152 of 2005 (O&M) Date of decision: 23.2.2010 A.S.Gill -----Appellant Vs. State of Punjab and others -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH Present:- Mr. Gurminder Singh, Advocate for the appellant. Mr. Jaswinder Singh, DAG, Punjab for the State. Mr. D.S.Patwalia, Advocate for the respondent- Company. --- Adarsh Kumar Goel,J. 1. This appeal has been preferred against order of learned Single Judge dismissing the writ petition against order terminating services of the appellant. 2. The appellant was employed with the department of Telecommunication, Government of India in 1969 and in the year 1988, he was taken on deputation by the Punjab Communications Limited where he was permanently absorbed on 8.3.1993. He was, thereafter, appointed as Managing LPA No.152 of 2005 (O&M) Director of the same Company w.e.f 30.4.1996. The resolution for appointment of the appellant was to the effect that his appointment will be for five years terminable by three months notice. The appellant continued to work upto 7.3.2003 when a resolution was passed terminating his services with immediate effect without assigning any reason. The appellant filed writ petition in this Court against the said order on 19.5.2003. 3. Main ground raised against the order of termination was that the order had been passed in violation of principles of natural justice and was arbitrary. The respondent-Company was a Government company and ‘State’ under Article 12 of the Constitution. In such a situation, services of the appellant could not be arbitrarily terminated. It is further submitted that in case, the appellant could be removed without assigning any reason or without following the procedure, he was atleast entitled to work on the lower post of Joint Managing Director as he was a permanent employee working since 1988 and absorbed in the year 1993, as mentioned above. Further, the appellant was entitled to continue for the contract period or in any case till the date of superannuation. 2 LPA No.152 of 2005 (O&M) 4. Learned Single Judge dismissed the writ petition holding that though the respondent company was State, the appointment was in the nature of contractual appointment and termination as per contract could not be set aside. 5. We have heard learned counsel for the parties and perused the record. 6. Learned counsel for the appellant reiterates his submissions particularly relying upon Articles 14 and 16 of the Constitution as interpreted in the judgment of the Hon’ble Supreme Court in Delhi Transport Corporation v. DTC Mazdoor Congress, 1991 Supp (1) SCC 600. 7. Learned counsel for the contesting respondents supported the impugned judgment relying upon judgments of the Hon’ble Supreme Court in Satish Chandra Anand v. Union of India, AIR 1953 SC 250, Executive Committee, UP Warehousing Corporation v. Chandra Kiran Tyagi, 1969(2) SCC 838, Shri Vidya Ram Misra v. Managing Committee, Shri Jai Narain College, (1972) 1 SCC 623,Brig.S.Ramachandran v. Hyderabad Allwyn Metal Works Limited, Sanathnagar, Hyderabad and others, 1995 Supp (3) SCC 674, State Bank of India and others v.S.N.Goyual, (2008) 8 SCC 92 and judgments of this Court 3 LPA No.152 of 2005 (O&M) in Karun Dhawan v. State of Punjab, 1995(2) SCT 500 and S.S.Parmar v. Sant Longowal Institute of Engineering Technology Society, 1999(3) SCT 172, to submit that contractual appointment could be terminated in terms of contract. He further submitted that appointment of the appellant was as per Article 171 of the Articles Association of the Company. Resolution dated 29.4.1996, Annexure R2/1 was passed which was followed by appointment letter. In the resolution, there was a condition of termination by notice of three months. 8. Only question for consideration is whether permanent public employment could be terminated without any reason and without fair procedure. Answer has to be in the negative. Even if appointment of the appellant as Managing Director was contractual as contended by learned counsel for the respondents, the appellant was nevertheless a regular employee of respondent No.2 Company which is not disputed and termination being per se punitive required giving of a reason and providing opportunity of being heard. In any case, on termination of employment as Managing Director, he was entitled to continue on the post on which he was earlier working. 4 LPA No.152 of 2005 (O&M) 9. The respondent has been held to be State under Article 12 which finding has not been challenged. In such situation, principle laid down by the Hon’ble Supreme Court in DTC (supra) fully applies and fair procedure has to be followed before passing order of termination. In absence thereof, termination order has to be held to be void. Relevant observations of the Hon’ble Supreme Court are :- “319….Therefore, it is no well tuned solace to say that in a court of law at the fag end of the career or after superannuation in the interregnum which often overtakes the litigation, that the employee would be meted out with justice (a grave uncertainty and exposing to frustating procrastination of judicial process and expenses and social humiliation). Before depriving an employee of the means of livelihood to himself and his dependents, i.e. job, the procedure prescribed for such deprivation must, therefore, be just, fair and reasonable tinder Arts. 21 and 14 and when infringes Art. 19(1)(g) must be subject to imposing reasonable restrictions under Art. 19(5). Conferment of power on a high rank officer is not always an assurance, in ,particular when the moral standards are generally degenerated that the power would be exercised objectively, reasonably, conscientiously, fairly and justly without inbuilt protection to an employee. Even officers who do their duty honestly and 5 LPA No.152 of 2005 (O&M) conscientiously are subject to great pressures and pulls. Therefore, the competing claims of the "public interest" as against "individual interest" of the employees are to be harmoniously blended so as to serve the societal need consistent with the constitutional scheme. Xx xx xxx xxx xxx 332. In an appropriate case where there is no sufficient evidence available to inflict by way of disciplinary measure, penalty of dismissal or removal from service and to meet such a situation, it is not as if that the, authority is lacking any power to make Rules or regulations to give a notice of opportunity with the grounds or the material on records on which it proposed to take action, consider the objections and record reasons on the basis of which it had taken action and communicate the same. However scanty the material may be, it must form foundation. This minimal procedure should be made part of the procedure lest the exercise of the power is capable of abuse for good as well as for whimsical or capricious purposes for reasons best known to the authority and not germane for the purpose for which the power was conferred. The action based on recording reasoning without communication would always be viewed with suspicion. Therefore, I hold that conferment of power with wide discretion without any guidelines, without any just, fair or reasonable procedure is 6 LPA No.152 of 2005 (O&M) constitutionally anathema to Arts. 14, 16(1), 19(1) (g) and 21 of the Constitution. Doctrine of reading down cannot be extended to such a situation.” 10. In view of above, further question is as to what relief the appellant is entitled to. There is consensus between learned counsel for the parties on the nature of relief that the appellant will be deemed to have continued on the post he was working till the date of superannuation but he will not be entitled to back wages. 11. Accordingly, we hold that the appellant is entitled to a declaration that he will be deemed to have continued in service till the date of superannuation without back wages but with all terminal benefits in accordance with rules and regulations. The benefits may be worked out and paid to the appellant within three months from the date of receipt of a copy of this order. 12. The appeal is disposed of accordingly. (Adarsh Kumar Goel) Judge February 23, 2010 (Alok Singh) ‘gs’ Judge 7 LPA No.152 of 2005 (O&M) 8