K. Alex Vs. Delhi
State Mineral Dev. Corpn. [2008] INSC 1622 (23 September 2008)
Judgment
LE IN THE SUPREME
COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5797 OF 2008
(Arising out of SLP (C) No. 14337 of 2006) K. Alex ...
Appellant VERSUS
Delhi State Mineral Dev. Corpn. ...
Respondent
TARUN CHATTERJEE,J.
1.
Leave
granted.
2.
This
appeal is directed against the judgment and order dated 22nd of February, 2006
in LPA No. 366 of 2006 of the High Court of Delhi at New Delhi whereby the
Division Bench of the High Court had affirmed the decision of the learned
single judge dismissing the Writ Petition of the appellant whereby he sought to
challenge the termination of his services from the Delhi State Mineral
Development Corporation (in short, "The Corporation") as illegal,
unjust and arbitrary.
3.
The
brief facts leading to the filing of this appeal may be summarized as under :-
4.
The
appellant was appointed as a heavy vehicle driver by the Corporation on
temporary basis on 3rd of November, 1987 in the pay scale of Rs.1400-2600/-. By
an order dated 23rd of January, 1989, the services of the appellant were
regularized with effect from the date of his appointment. In 1992, the
Corporation retrenched some of its employees on the ground of reduced
activities of the Corporation. Accordingly, a Circular dated 27th of August,
1992 was issued to this effect along with a list of retrenched employees to be
redeployed in Delhi Administration or any other undertakings/corporations under
the control of Delhi Administration. In the said list, the name of the
appellant appeared at serial No. 48. It was the case of the appellant that the
Corporation, instead of redeploying the appellant as per the policy
abovementioned, terminated his services by an order dated 13th of July, 1993
under sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service)
Rules, 1965 (in short "the CCS Rules") read with Rule 7 (ii) of the
Staff Service Rules of DSIDC, 1978.
5.
Feeling
aggrieved, the appellant approached the High Court of Delhi challenging the
aforesaid order of termination as illegal, unjust and arbitrary. By an order
dated 15th of December, 2005, the learned single judge, while holding that the
termination of services of the appellant treating him as a temporary employee
was not proper, dismissed the writ petition on the ground that on abolition of
post, the appellant had no right to continue in service. Against this decision
of the learned single judge of the High Court, the appellant filed a Letters
Patent Appeal, which was, however, dismissed by the judgment and order dated
22nd of February, 2006. It is this decision of the High Court, which is
impugned in this appeal on grant of leave.
6.
We
have heard the learned counsel for the parties and examined the impugned
judgment of the Division Bench of the High Court as well as of the learned
Single Judge and the other materials on record including the re-deployment
policy of the Corporation. Before we deal with the respective submissions of
the learned counsel for the parties, we deem it expedient at this stage to
reproduce the relevant provisions of the CCS Rules and the Staff Service Rules
of DSIDC, which are required to be considered for a proper decision of this
appeal.
7.
As
already noted, the Corporation had terminated the services of the appellant
under sub-rule (1) of Rule 5 of the CCS Rules read with Rule 7(ii) of the Staff
Service Rules of DSIDC, 1978, sub-rule (1) of Rule 5 of the CCS Rules, 1965 may
be reproduced as under: - "5 Termination of Temporary Service (i) (a) The
services of a temporary Government servant who is not in quasi permanent
service shall be liable to termination at any time by a notice in writing given
either by the Government servant to the authority or by the appointing
authority to the Government servant.
(b) The period of
such notice shall be one month;
provided that the
services of any such Government servant may be terminated forthwith and on such
termination the Government servant shall be entitled to claim a sum equivalent
to the amount of pay plus allowance for the period of the notice at the same
rates at which he was drawing then immediately before the termination of his
services or, as the case may be terminated forthwith and on such termination
the Government servant shall be entitled to claim a sum, equivalent to the
period of the notice at the same rates at which he was drawing them immediately
before the termination of his services or, as the case may be, for the period
by which such notice falls short of one month."
4 Rule 7 (ii) of the
Staff Service Rules, DSIDC reads as under :- "Matters not specifically
covered in these service rules shall be governed by the provisions of the
corresponding Rules and Regulations applicable to central Government
employees."
Rule 3 (iv) of the
staff service rules is yet another relevant provision and may be reproduced as
under:- "Temporary Employee who has not completed 3 years of continuous
service in the corporation"
8.
Keeping
the aforesaid provisions in mind, let us now examine the submissions of the
learned counsel for the parties.
The learned counsel
for the appellant argued at the first instance that the termination of the
services of the appellant by the Corporation was illegal and arbitrary inasmuch
as the policy of re-deployment of retrenched employees published by Circular
dated 27th of August, 1992 was not at all given effect to in the case of the
appellant. The learned counsel for the appellant further submitted that the
services of the appellant were terminated under Rule 5 of the CCS rules, even
though the appellant was a regular employee. It was further submitted by the
learned counsel for the appellant that the Corporation had a policy of
redeploying retrenched employees and in accordance with its policy, the name of
the appellant was included at Serial No. 48 in the list of retrenched employees
to be re-deployed but the Corporation redeployed all the employees except the
appellant. The learned counsel for the appellant finally contended that the
services of the appellant were terminated when the appellant was 35 years old
i.e. at the time when the services of the appellant was terminated, he had
already crossed the age at which, he could not have sought public employment
and accordingly, this aspect was totally ignored by the High Court while
affirming the order of termination passed against the appellant.
9.
The
submissions put forward by the learned counsel for the appellant, as noted
hereinabove, were hotly contested by the learned counsel for the Corporation.
The learned counsel for the Corporation further submitted that the termination
of the services of the appellant had become necessary in view of the peculiar
facts and circumstances of the case, which were beyond the control of the
Corporation and no discrimination could be attributed to it because the
services of the appellant were terminated, being the junior most at the place
of alternate employment provided by the Corporation. The learned counsel for
the Corporation also argued that the services of the appellant were never
confirmed and the regularization, if there be any, did not mean confirmation in
view of the express stipulation in Regulation 3(iii) which provides that the
employee would be confirmed if the management is satisfied with his performance
during the period of his probation. On the question of re- deployment of the
appellant, it was argued by the learned counsel for Corporation that no orders
were received from the Delhi Administration regarding the appellant's
re-deployment after 27th of August, 1992 till the date of his termination and
therefore, no discrimination could be alleged by the appellant.
10.
In
the light of the above submissions, the question that needs to be decided in
this appeal is whether it was arbitrary and illegal on the part of the Corporation
not to implement its re- deployment policy in the case of the appellant, even
though his name appeared at Serial No.48 in the list of retrenched employees to
be redeployed and when all but the appellant were redeployed. Before we answer
this question, we deem it appropriate to reproduce the findings of the High
Court on this question while affirming the decision of the learned single
judge, which are as under: - "........When the service of an employee is
terminated on closure of a project or for some other reason, there is no right
in that employee to get re-employment in some other organization.
The only right which
the employee has is to get closure compensation under Section 25-FFF of the
Industrial Disputes Act, if he is a workman.
It is submitted that
some other employees were employed by different government departments but in
our opinion that was not a matter of right but on humanitarian consideration.
The petitioner was at any event the junior most operator and cold not claim to
be re- employed as of right........"
11.
Having
examined closely the above findings of the High Court in the light of the
materials on record and the factual matrix of this case, we find that it is
true that when the services of an employee are terminated on closure of a
project or for some other reason, the employee cannot seek re-employment in
some other organization as of right. But it cannot be ignored that the present
case is not so much about the appellant's right to hold the post on abolition
of post but about the appellant's right to claim re-deployment in terms of the
policy of the Corporation particularly when the policy was implemented in
respect of all the other employees who were retrenched and similarly placed.
12.
Out
of the list of 275 retrenched employees, only the services of the appellant
were terminated. Therefore, it is difficult to conceive how in the single case
of the appellant only, his services could not be restored. This, in our view,
is discriminatory in nature and violative of the right to equality.
The explanation thus
offered viz., that the appellant was junior most cannot find our approval and
cannot be accepted. In any view of the matter and considering this long course
of time, a single post has certainly fallen vacant where the appellant can very
well be accommodated. Even if we hold that the closure of Bhatti Mines and
reduction in the activities in Gujranwala mines, as held by the learned single
judge, forced the Corporation to terminate the services of the appellant, even
then, the irresistible conclusion must be that out of the list of 275
retrenched employees, only the appellant's services were terminated.
13.
It
is also seen that all the persons, whose names were mentioned in the list of
retrenched employees to be redeployed, were absorbed either in Delhi
Administration or any other undertakings/ corporations under the control of
Delhi Administration while some of them were retained in the Corporation
itself. It is only the appellant who was left out. This action on the part of
the Corporation, therefore, cannot be accepted and accordingly, arbitrary and
illegal.
14.
There
is another aspect of this matter. As noted herein earlier, the learned counsel
for the appellant submitted before us that the termination of the services of
the appellant by the Corporation under sub-rule (1) of Rule 5 of the CCS Rules
was illegal and arbitrary because the appellant was a regular permanent
employee whereas the said rules would be applicable to only temporary employees.
15.
From
the materials available on record, we have observed that the services of the
appellant were regularized by an Office Order dated 23rd of January, 1989 with
effect from the date of his appointment i.e. 4th of November, 1987. Therefore,
it is clear that the appellant was not a temporary employee but a regular
employee, even if we hold that his services were not confirmed under Regulation
3(iii). Even otherwise, the appellant could not be equated with temporary
employees because Rule 3(iv) of DSIDC (Staff Service Rules), 1978 defines a
temporary employee to mean "one who has not completed three years of
continuous services in the Corporation" whereas in the present case, the
appellant had already completed more than 5 years of continuous service. Even
the learned single judge in his judgment has, at one stage, held that the
appellant was not a temporary employee. The learned single judge had gone to
the extent of saying that even if it is assumed that the corporation wrongly
applied sub-Rule (1) of Rule 5, then also, the decision of termination cannot
be said to be illegal because on an overall conceptus of facts, there was no
need of such personnel because the work in the Corporation was reduced and the
personnel were rendered surplus. It also observed that the re-deployment could
not have been claimed as of right and the appellant could not allege any
discrimination because the appellant was the junior most in the category of
HEMM Operators.
16.
We
have already noted herein earlier that we are not convinced with the
explanation offered by the Corporation for not redeploying the appellant, his
termination must be held to be arbitrary and unjust. Even otherwise, the
Corporation could not terminate the services of the appellant by resorting to
the Temporary Service Rules and on this ground also, the termination of the
appellant was illegal and invalid and is liable to be quashed.
17.
For
the reasons aforesaid, the judgments of the Single Judge as well as of the
Division Bench of the High Court are liable to be quashed and are, accordingly,
set aside and the appeal is thus allowed. The Corporation is directed to
reinstate the appellant with immediate effect in any organization under the
Delhi Administration or absorb him within the Corporation itself. In view of the
peculiar facts of this case, no back wages are allowed and no order as to
costs.
..............................J.
[
TARUN CHATTERJEE ]
..............................J.
NEWDELHI:
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