Chandanram Ratre vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Heard learned counsel appearing for parties.

Notice to the respondents is dispensed with, as Shri Sao, learned State counsel, appeared on behalf of respondent No. 1 & 2 and Shri Guru, learned counsel appeared on behalf of respondent No. 3.

Challenge in this petition is to the order dated 24-3-2012 (Annexure-P/3) whereby, without giving one month''s notice in advance or paying one month''s salary in lieu of notice, as provided under Rule 14(ii) of the Chhattisgarh Civil Sewa (Samvida Niyukti) Niyam, 2004 (for short ''the Rules, 2004), the services of the petitioner has been terminated before completion of his contract period i.e. from 14th October, 2011 to 13th October, 2012.

Learned counsel appearing for the petitioner submits that there is a clear violation of statutory provisions and, as such, the impugned order is vitiated. Thus, the impugned order may be quashed and the petitioner may be reinstated in service for the remaining period till completion of the contract period.

Shri Sao, learned Government Advocate appearing for the State/respondents No. 1 & 2 and Shri Guru, learned Advocate for the respondent No. 3 submit that if one month''s advance notice has not been given, he would be entitled to mere one month''s salary. The appointment of the petitioner was not on regular basis.

The petitioner was appointed under provisions of the Rules, 2004, which was framed by the State Government in exercise of the powers conferred by proviso to Article 309 of the Constitution of India.

Rule 11 of the Rules, 2004 deals with the above stated situation, which reads as under:

Period of Appointment.--Normally contract appointment shall be merely for one year. The department may take decision to extend the period of appointment as per the necessity and on assessing the suitability of the person appointed on contract. On expiry of the period of the Contract appointment, automatically contract appointment shall stand terminated.

Rule 14 of the Rules 2004, deals with other conditions of appointment. Clause (ii) of Rule 14 of the Rules, 2004, clearly provides as under:

(ii) During the course of appointment, either of the parties may terminate the appointment, by giving one month''s notice in advance or paying one month''s salary in its place.

Thus, if the work is not found satisfactory under provisions of Rule 14(ii) of the Rules, 2004, before the period of contract is over, services of a contract appointee may be terminated, subject to one month''s notice in advance or paying one month''s salary in its place.

It appears that one month''s notice in advance has been provided with a loud object that in the meantime, the employee may attempt to get some other assignment or job. If one month''s notice or one month''s salary are not granted, the very purpose of providing a safeguard of one month''s notice in its place, would be defeated. In the appointment order, there is no such condition, however, since, it is made clear that appointment was made under the provisions of Rules, 2004, the provisions of Rule 14(ii) of Rules 2004 would be attracted in the case on hand. There is no dispute that no notice was given or in lieu of notice, no salary of one month was paid. Thus, there is clear violation of statutory provisions.

In this event, it cannot be held that violation of a clause (ii) of Rule 14 of the Rules 2004 of giving one month''s notice or salary for one month leads to automatic conclusion to reinstatement in service. The Supreme Court in case of violation of Section of 25-F of Industrial Disputes Act, 1947, (for short the "I.D. Act") wherein, it is provided that, if a worker has completed 240 days in the preceding year, he would be entitled to retrenchment compensation u/s 25-F of the I.D. Act, and there will not be any automatic reinstatement for infringement of 25-F of the I.D. Act. The employee may be compensated for such infringement instead of reinstatement. Likewise in this case, whether there is a violation of provision of payment of one month''s notice in advance or payment of salary, in lieu thereof, that may not lead to reinstatement. For the default, the petitioner is entitled to proper compensation. In the facts of the case, the petitioner is entitled to three months salary for violation of provisions of the Rules, 2004.

The Supreme Court in Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra and others etc., observed as under:

5....It is difficult to envisage for them the status of workmen on the analogy of the provisions of the Industrial Disputes Act, 1947, importing the incidents of completion of 240 days'' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947, are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days'' work does not, under that law import the right to regularization. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here.

In Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Others, the Supreme Court has observed as under:

In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuiban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula).

In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Mktg. Board, the aforesaid decisions were noticed and it was stated: (SCC pp. 330 & 335, paras 7 & 14).

It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside by an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.

In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice. In our considered view, the compensation of Rs. 40,000/- to each of the workmen (respondents 1 to 14) shall meet the ends of justice. We order accordingly. Such payment shall be made within six weeks from today, failing which the same shall carry interest at the rate of 9% per annum.

Accordingly, the State and Corporation both are directed to make payment of three months salary jointly to the petitioner within a period of three weeks from the date of receipt of a copy of this order. The impugned order of termination cannot be quashed at this juncture, in view of the fact that the appointment of the petitioner is purely on contractual basis. In the result, the writ petition is allowed to the extent indicated above. No order as to costs.