R.S.A. No. 1803 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1803 of 2009 (O&M) Date of decision: 30.04.2009 Thapar Polytechnic College ....appellant versus Ram Faquir ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Amar Vivek, Advocate, for the appellant. Mr. A.K. Walia, Advocate, for the caveator-respondent. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 28.1.2009, declaring order dated 29.8.2003, ordering termination of the plaintiff/respondent, to be illegal, null and void, without jurisdiction and also in violation of principles of natural justice. The plaintiff/respondent filed a suit for declaration to challenge the impugned order primarily on the ground that though initially he was appointed on daily wages, his services were regularised on 7.4.1986, and vide order dated 1.4.1997, he was confirmed as Mali. The services of the plaintiff/respondent were ordered to be terminated as a measure of economy in terms of Clause 3(e) of the appointment letter and Regulation 13(iii) of the Thapar Polytechnic Staff Service Rules R.S.A. No. 1803 of 2009 (O&M) -2- (TPSSR). The services of the plaintiff/respondent were governed by the rules, and his cadre constituted common cadre. It was also the case set up by the plaintiff/respondent that the order of termination was without jurisdiction, as the same was passed by the Principal, whereas as per Regulation 13(iii) exercise of termination could be done by the managing committee. The order of termination, passed by the Principal, reads as under: - "As per clause 13(iii) of Thapar Polytechnic Staff Service Rules and para 3(e) of your appointment letter, your services are hereby terminated w.e.f. August 29, 2003 (AN) under provisions of retrenchment as a measure of economy. An amount of Rs.19,809/- vide cheque No. 588223 dated 29.8.2003 towards three months wages in lieu of notice period and Rs.56,126/- vide cheque No. 588224 dated 29.8.03 towards retrenchment compensation have been deposited in your Saving Bank a/c No. 01190005823 in the State Bank of Patiala, Thapar Institute Branch, Patiala." The suit was contested, wherein a plea was taken that the plaintiff/respondent was appointed on daily wages. Though the factum of his confirmation was not denied. The stand was also taken that salary along with retrenchment compensation, in lieu of three months notice, as per stipulation of his appointment letter, was paid and, therefore, the order of termination was quite legal and justified. Plea was also taken that the services of the plaintiff/respondent were terminated with the approval of the Chairman, Managing Committee, and the order was said to have been subsequently rectified by the Managing Committee. R.S.A. No. 1803 of 2009 (O&M) -3- On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - "1. Whether the plaintiff is entitled for declaration as prayed for? OPP 2. Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP 3. Whether the suit as filed by the plaintiff is not maintainable in its present form? OPD 4. Whether the plaintiff has not approached the court with clean hands? OPD 5. Whether there is no cause of action to file the present suit? OPD 6. Whether this court has no jurisdiction to try and decide the present suit? OPD 7. Whether the suit as filed by the plaintiff is false and frivolous? OPD 8. Relief." On appreciation of evidence, the learned Courts below have recorded a concurrent finding of fact that the plaintiff/respondent was entitled to declaration claimed as also consequential relief of mandatory injunction. Issues No. 3 to 7 were decided against the appellant/defendant. Though the order of termination was held to be bad on number of grounds, but primary reason for allowing the suit was that the impugned order was without jurisdiction, having been passed by the Principal. The learned Courts below further noticed that though specific stand was taken that the order of termination stood rectified by the Managing Committee, no material was placed on record to support this assertion. The learned counsel appearing on behalf of the appellant R.S.A. No. 1803 of 2009 (O&M) -4- contends that the appeal raises the following substantial questions of law: - "1. Whether order of termination passed as per the terms and conditions of appointment letter, after payment of compensation and notice pay, can be said to be an order of termination, as held by the learned Courts below? 2. Whether on acceptance of retrenchment compensation and notice pay, the plaintiff/respondent was estopped to challenge the order?" In support of the substantial questions of law, the learned counsel for the appellant contends that Ex. D-4 i.e. order of termination has been mis-construed by the learned Courts below to be an order passed by the Principal, whereas it was only an order conveying the decision of the Managing Committee and, thus, the judgment and decree passed by the learned Courts below suffers from mis-reading and, therefore, cannot be sustained. This plea of the learned counsel for the appellant is totally mis- conceived. The reading of the order, reproduced above, shows that the order was passed by the Principal and is not an order conveying the decision either of the Chairman, Managing Committee or the Committee, as contended. Thus, deliberate wrong stand was taken, which was contrary to pleadings of appellant. The learned counsel for the appellant placed reliance on the Division Bench judgment of this Court in Jai Singh Vs. State of Haryana and others, 2001(4) RSJ 644 wherein the Division Bench of this Court was pleased to hold as under: - R.S.A. No. 1803 of 2009 (O&M) -5- "It is admitted that the appointment of the respondent- Administrator has been made under Section 33 of the Haryana Co-operative Societies Act, 1984. Clause (4) categorically provides that the Administrator shall, "subject to the control of the Registrar and to such instructions as he may from time to time give, have powers to exercise all or any of the functions of the committee or of any officer of the society and take all such actions as may be required in the interest of the society." On a perusal of this provision it is clear that the Administrator exercises all the powers of the Managing Committee. He is empowered to take all such actions as he may consider to be in the interest of the Society. The impugned order is clear instance of an action by the Administrator in the interest of the Society. It has not even been suggested that the order is contrary to any instructions issued by the Registrar." Reliance on this judgment is again mis-placed. The Hon'ble Division Bench of this Court has held that the Administrator was having all the powers of Managing Committee and, therefore, the order could not be said to be without jurisdiction, whereas in the case in hand, it is not even the case of the appellant/defendant that the Principal had the powers of the Managing Committee to pass such order. The next contention of the learned counsel for the appellant that the learned Courts below have mis-construed the order to be the order of termination, and also that the order was without jurisdiction. The contention of the learned counsel for the appellant is that an averment was made in the written statement by the defendant/appellant, that the Principal being appointing authority was competent to terminate the services of the plaintiff/appellant, however, R.S.A. No. 1803 of 2009 (O&M) -6- this point has not been considered. This contention is again mis-statement, as no such plea was raised in the written statement. The only plea raised in the written statement was that the order of termination was passed with the consent of the Chairman, Managing Committee, which was rectified by the Managing Committee, this fact which has been duly noted by the learned Courts below, while decreeing the suit filed by the plaintiff/respondent. It is also the contention of the learned counsel for the appellant that once, the notice salary, in lieu of notice, and retrenchment compensation was paid, the order of termination was as per the terms and conditions of the appointment letter, the order, therefore, could not be said to be an order of termination, as held by the learned Courts below. It is contended that the judgment and decree passed by the learned Courts below deserves to be reversed. This plea again is based on mis-conceived notion. The conditions in order of appointment have to give way to the statutory regulations framed to regulate the service conditions. Once , an employee was confirmed employee and brought in common cadre, he was governed by the regulations which did not permit the termination as per the terms of the letter of appointment. Otherwise also, conditions, whereby confirmed employee can be terminated by merely giving three months' notice, is to be held to be ultra vires the Constitution, being violative of Article 14 of the Constitution, as per settled law. The reliance on the conditions of appointment letter by the learned counsel for the appellant is also mis-conceived. R.S.A. No. 1803 of 2009 (O&M) -7- It may further be noticed that the contentions raised by the learned counsel for the appellant cannot be accepted, as once it has been proved on record that the order passed was without jurisdiction, having been passed by an authority, which was not competent to order termination. The learned Courts below rightly decreed the suit. Furthermore, the order, reproduced above, would show that even the stand of the defendant/appellant that order of termination has been passed in exercise of powers vested under the regulations to terminate the services for economic reasons. The order was, thus, held to be without jurisdiction. On the second substantial question of law, the learned counsel for the appellant contends that once retrenchment compensation and notice period salary was paid, the plaintiff/respondent was estopped from challenging the order. This plea is again not sustainable, there can be no estoppel against law. An employee whose services have been unilaterally terminated by invoking regulations by an authority, not competent to pass such an order and the order was void. The contention raised is against the well established principle of law, that there can be no estoppel against law. The substantial questions of law are, thus, answered against the appellant. As already observed above, the appellant-management had deliberately made wrong assertion on the factual position in order to justify the order of termination, which was rightly held to be void. The contentions have been found to be contrary to the pleadings and R.S.A. No. 1803 of 2009 (O&M) -8- evidence. The attempt has been made by the appellant to harass poor fourth class employee. The regular second appeal is dismissed with costs, which are assessed at Rs.10,000/- (Rupees ten thousand only). (Vinod K. Sharma) Judge April 30, 2009 R.S.