M/S.
National Aluminium Co. Ltd. Vs. Deepak Kumar Panda & Ors [2001] Insc 313 (10 July 2001)
S. Rajendra
Babu, P. Venkatarama Reddi. P. Venkatarama Reddi, J.
The
respondent herein was appointed as French Interpreter by the petitioner-company
(a public sector undertaking) on contract basis on 25.1.1985 after holding an
interview. It was in the nature of contract appointment on a consolidated pay,
which was initially for a period of one year. The contract of employment was
being extended from time to time up to 1.1.1990, the latest order of extension
being 30.10.1989. He was drawing a consolidated pay of Rs.1800/- per month. By
a telegraphic Communication dated 8.1.1990, the respondent was notified that
his contractual appointment had expired on 1.1.1990 and that he was free to
collect the dues from the Finance department. It is this order that was
challenged in the High Court of Orissa. The specific relief the respondent
sought for was to direct the grant of renewal/extension of service. It is the
case of the respondent- writ petitioner that the persons junior to him, were
appointed on similar terms, were continued and later on their services were
regularized. It may be mentioned that the respondent's application for
permanent absorption was negatived by an order dated 13.10.1989 (at
Annexure-F), the ground of rejection being that he failed to produce the
original certificate of Sri Aurobindo International Centre for Education, Pondicherry
in proof of having passed the three year higher course, which is equivalent to
graduation. It was stated in the said order that the respondent represented at
the time of joining the service that he possessed the qualification of
graduation, but he failed to produce the original certificate inspite of
several communications sent from 12.12.1988 onwards. One more opportunity was
given to him to produce the original certificate with a warning that in case of
failure to do so, it would be presumed that he did not pass the 'higher course'
from Sri Aurobindo International Centre and that he had given false
declaration. The respondent wanted five days time to produce the certificate,
but he failed to furnish the same. Another communication was sent on 16.11.1989
directing the respondent to produce the certificate on or before 25.11.1989. At
that stage, the respondent sent a representation dated 27.11.1989 stating as follows
:
"In
view of the above facts, I would like to draw your kind attention that whatever
documents which had been submitted by me regarding my educational qualification
to the company at the time of joining may be treated as final. Copies of the
previously submitted documents during my joining in service are attached
herewith for necessary action." The petitioner-company, in answer to the
writ petition, took the stand firstly, that the respondent stayed away from
duties from 21.12.1989 onwards without waiting for sanction of leave and
therefore his name was liable to be struck off from the muster rolls in terms
of clause (31) of the Standing Orders and secondly, the contractual appointment
having come to an end, the respondent has no legally enforceable right to
continue in service. The third and more important stand taken by the
petitioner- company was that the respondent did not produce satisfactory proof
of possessing the requisite educational qualification for being appointed as
French Interpreter or to the post of Assistant and therefore the question of
extension of service or regularization did not arise. The High Court did not
accept any of the contentions raised by the Management in answer to the writ
petition. Accordingly, the writ petition was allowed by the impugned judgment
with the following directions :
"In
the result, we direct the opposite parties, to consider the case of the
petitioner for regularization and appointment in the post of Assistant of the
Company, with effect from the date other French Interpreters were so
regularized, on the premise that the petitioner has the requisite educational
qualification and without insisting on age bar. However, we hope and trust that
the only ground on which he was denied consideration being lack of requisite
qualification, there would be no further impediment in the way of
regularization in service, the petitioner having been held to have the
requisite qualification. However, on regularization and permanent absorption in
service, the period from such date till the joining, shall only be counted for
the purpose of pensionary benefits but he shall not be entitled to salary for
those period he has not rendered any service to the company inasmuch as there
is no tangible material on record that he was not gainfully employed during
that period." As regards the first contention that on account of
unauthorized absence of the respondent, his services automatically stood terminated
in terms of clause (31) of the Standing Orders, no exception can be taken to
the conclusion reached by the High Court. The High Court rightly held that even
on admitted facts, S.O. (31) was not attracted. Further, it is not the case of
the petitioner that any decision was taken on the leave application submitted
by him by the date of the impugned order or that the ground of sickness urged
by the respondent was negatived. This is apart from the question whether there
could be, in law, automatic termination of service without enquiry or even show
cause notice.
The
second contention advanced by the petitioner does not appeal to us and it has
been rightly rejected by the High Court. The respondent may or may not have the
right to continue in service after the expiry of duration of contractual
appointment, but the non-extension of service and the refusal to regularize the
respondent's service as French Interpreter or as Assistant is primarily
inspired by the fact that he failed to produce reliable proof of having
requisite qualification. It is the correctness or validity of this ground that
has to be tested. It is not as if the respondent's services were not extended
for any other administrative reasons. In fact, it is an undisputed fact that
juniors to the respondent employed on similar terms were continued in service
and thereafter absorbed on regular basis. Thus, the only question that falls
for consideration is whether the petitioner was justified in treating the
respondent as unqualified and whether the finding of the High Court, in this
regard, is legally sustainable? It is obvious that if the respondent does not
possess the requisite qualification, viz., graduation or its equivalent, he
cannot be considered for regularization and no inference can be drawn in such a
case that the non-extension of his service was arbitrary or discriminatory.
As
regards the educational qualification, it is apparent from the pleadings and
materials placed before us that the respondent did not submit the original or
authenticated copy of the certificate of haing passed three- year higher course
in Aurobindo International Centre, Pondichery. It seems that at the time of
initial appointment, he produced a testimonial or certificate from the
Registrar of the Centre to the effect that he completed three-year higher
course. A doubt was entertained on the aspect whether the date of completion of
course as found in the photostat copy produced by the respondent in 1990 was an
interpolation. The High Court found, on the basis of a clarificatory letter of
the Registrar issued subsequent to the termination, that there was factually no
tampering with the certificate dated 19.11.1980. Be that as it may, the fact
remains that the respondent failed to produce the original certificate of
having attained the qualification or authenticated copy thereof, though number
of opportunities were given to him. The reason for his inability to produce the
certificate has not been explained. He is only harping on the secondary
evidence in the form of testimonial/letter issued by the Registrar bearing the
date 19.11.1980. In these circumstances, the High Court ought not to have
entered into the factual finding that the respondent possessed the necessary
qualification.
The
High Court clearly misdirected itself in doing so. At the same time, it cannot
be presumed that the respondent had not passed the three-year higher course in Aurobindo
International Centre, which is undisputedly equivalent to graduation. It is
pertinent to note, at this juncture, that the petitioner- company failed to
produce, either before the High Court or before this Court, the certificate
dated 19.11.1980 issued by the Registrar which according to the High Court is a
genuine one. In this fluid state of things, the proper course would be to give a
final opportunity to the respondent to produce the original or authenticated
certificate issued by the competent authority of Sri Aurobindo International
Centre, Pondicherry. For this purpose, two months time
is granted to the respondent to produce the same.
On
approach being made by the respondent, we do hope that the authorities of Sri Aurobindo
International Centre would take expeditious steps to verify the concerned
record and issue the certificate in original or a certified copy thereof. On
production of such certificate, the respondent shall be appointed on regular
basis as Assistant (French Interpreter post not being available now) with
effect from the date of judgment of the High Court i.e., from 29.7.1996 and the
respondent be fixed up in appropriate pay scale. As the respondent has to
partly blame himself for the situation in which he is placed, we are not
inclined to grant the benefit of retrospective regularization from an earlier
date or to award any back-wages.
The
impugned order of the High Court is set aside and the appeal is disposed of in
terms of the directions given above. We make no order as to costs.
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