Abubakkar Ahad vs Assam Seeds Corporation Ltd. and Others

K.N. Saikia, J.—The writ Petitioner herein impugns the notice dated 9th June, 1980 issued by the Managing Director, Assam Seeds Corporation Limited, hereinafter referred to as "the Corporation", terminating his service on the completion of one month from receipt of the notice.

The Petitioner was appointed as a Technician under the Corporation as Senior Operator of its Cold Storage Plant situated at Khanapara on 6.9.68 and was promoted as an Assistant Manager of the Corporation in its Cold Storage Plant on 1.5.72 and he had been serving the Corporation in that capacity at the time of issue of the impugned notice.

Admittedly the Corporation is a Government of Assam Undertaking being wholly owned by the Government of Assam and as such it constitutes ''other authority'' under Article 12 of the Constitution of India.

The Corporation transferred its Cold Storage Plant to the Government of Assam on 17.4.78 and the latter took over charge of the Plant on and from 18.5.78 pursuant to a resolution dated 29.3.78. The Government of Assam was gradually implementing the resolution in so far as it related to the transfer of the employees of the Corporation in the Cold Storage Plant. It appears that the Government was considering the absorption of the Corporation employees in the Cold Storage Plant for which bio-dates of the employees were required to be submitted, which the Petitioner did not do and in consequence he was not absorbed by the Government. On 25.10.79 the Petitioner was ordered to take charge of the Dhubri Branch of the Corporation but he could not go there due to his illness and consequently applied for leave. The Petitioner was again transferred to Kokrajhar and Tezpur where also he could not join due to his illness. On 8.2.80 the Petitioner filed an application for his retention at Gauhati on the ground of medical advice and on 18.6.80 he applied for leave on medical ground and without consideration of his application the impugned notice was issued to the following effect:

ASSAM SEEDS CORPORATION LIMITED NOWJAN ROAD KHANAPARA; GAUHATI-1

No. E.2(ABA)78/81/1177 Dated Gauhati. the 2nd June, 80 9th

To

Md. Abubakar Ahed, son of Late Dr. A.B. Ayaz. Assam Seeds Corporation Ltd., Kamarpati Road, Gauhati-1

As per resolution of the Board of this Corporation the Cold-Storage has already been handed over to the Deptt. of Agril. The Deptt. of Agriculture was requested to absorb the staffs of Cold-Storage. Accordingly the Deptt. asked for Bio-datas of all the Cold-Storage Staffs and all except you submitted Bio-datas. Some of the Staffs have been absorbed in the Deptt. as well as in the Corporation. But as you did not submit your bio-data your case was not considered by the Deptt. The Corporation also posted you in different places but you did not move to your new place of postings.

Hence, the management of this Corporation have decided to retrench you from service of the Corporation.

So, I am hereby directed to serve this notice on you that your services are terminated on the completion of one month from receipt of this notice. It is left on you option

In case you decide to accept the salary in lieu of notice, you are requested to intimate your consent to this office and present yourself in the office during office hours on the day next to the day on which you get the intimation to get the salary and other emoluments due to you as per law.

Sd/- Illegible. Managing Director, Assam Seeds Corporation Limited, Nowjan Road, Uzanbazar, Gauhati-1.

Hence this petition.

Mr. B.K. Das, the learned Counsel for the Petitioner submits, Inter alia, (1) that the Corporation in the absence of any Service vice Rules, acted in violation of the principles of natural justice while terminating the service without giving any opportunity of showing cause and as such the impugned notice is liable to be quashed and (2) that the existence of an alternative remedy under the Industrial law is no bar for seeking his remedy by way of a writ in view of the violation of the principles of natural justice.

Admittedly the Corporation has not framed any Service or Disciplinary Rules. In the absence of such rules the Corporation is bound to observe the principles of natural justice. From the appointment letter which is annexed as Annexure VIII to the affidavit-in-reply by the Petitioner, it is clear that the Petitioner was appointed on permanent basis. The facts leading to the issuance of the impugned notice go to show that pursuant to the transfer of the Cold Storage Plant the Petitioner was asked to submit his bio-data which he failed to do. But the Corporation did not decide to take any action on that ground. The Petitioner was retained in his post by the Corporation and when he was transferred to Dhubri, Kokrajhar and then to Tezpur he was transferred in his capacity as Assistant Manager, and only after his refusal to move, the impugned notice was issued. From the text of the notice it is clear that the Petitioner''s service was terminated on two grounds, namely, (1) that he did not submit his bio-data for which his case was not considered by the Department; and (2) that the Corporation posted the Petitioner in different places but he did not move to the new places of posting. If any action was taken affecting the Petitioner''s service on the above two grounds, natural justice demanded that he was to be given a reasonable opportunity to show cause as to why he did not submit his bio-data and as to why he refused to move to his new places of posting and as to why his service should be terminated on those grounds. Admittedly no such notice was issued and no such opportunity was afforded. This, in our opinion, is clearly volatile of the principles of natural justice.

Mr. P.N. Goswami, the learned Counsel for the Corporation, while admitting that the Corporation is a "State" under Article 12 of the Constitution of India, submits that the Petitioner''s case is not one of termination but of retrenchment for which remedy lies in Industrial law. But we find that though the notice mentions that the Petitioner''s service is ''retrenched'', this, in effect, is not a case of retrenchment but squarely of inflicting punishment for his lapses in not filing his bio-data and his refusal to move to the new places of posting. In other words, it is not a case of retrenchment pure and simple but is one of colorable exercise of power to punish the Petitioner in the guise of retrenchment. It is a settled law that the ''other authorities'', which are ''State'' under Article 12 of the Constitution of India, either in the form of statutory Corporations or in the form of Government Companies or in the form of Co-operative Societies are bound in such cases to observe the principles of natural justice which, in our opinion, have been violated in this case. The impugned notice, therefore, is not sustainable in law and we hereby quash the same. The existence of an alternative remedy is no bar for issuance of writ in such a case.

This petition is accordingly allowed and the Rule is made absolute. But in the facts and circumstances of the case, we leave the parties to bear their own costs.