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Judgment
Biraja Prasanna Satapathy, J.
The present Writ Petition has been filed inter alia challenging order dated 14.09.2015 so passed under Annexure-16, confirming the order of removal passed on 28.08.2003 under Annexure-9 and with a further prayer to provide regular appointment to the Petitioner w.e.f. 17.09.2002.
Learned Senior Counsel appearing for the Petitioner while assailing the impugned orders issued under Annexure-9 confirmed vide order under Annexure-16, contended that Petitioner being a Land Oustee, he was allowed to take part in the interview for the post of ‘Artisan Trainee’ in the trade of (Fitter/Electrician) in Stage-II vide letter dated 17.08.2001 under Annexure-1.
It is further contended that on coming successful in the interview so conducted, Petitioner was appointed as against the post of Artisan Trainee (Fitter) vide order of appointment issued on 31.08.2001 under Annexure-2.
However, in terms of the said order of appointment, Petitioner is required to undergo the training for a period of one year, which may be extended at the discretion of the Management and with the further condition that, on successful completion of training, Petitioner will be absorbed in the regular service after completing probation period of one year.
It is contended that in terms of the order issued on 31.08.2001 under Annexure-2 and pursuant to the bond executed on 05.09.2001 under Annexure-3, Petitioner continued in the training.
It is contended that in the order under Annexure-2, though the training was for a period of one year, but with the condition that it may be extended on the discretion of the Management. Taking into account such discretion, vide order dated 29.10.2002 under Annexure-4, training period of the Petitioner was extended by another six (6) months w.e.f. 17.09.2002. Not only that vide another office order issued on dated 16.06.2003 under Annexure-5, such training period was further extended up to 16.09.2003.
It is however contended that prior to issuance of the order dated 16.06.2003 under Annexure-5, Petitioner had already made an application on 24.01.2003 under Annexure-6 series with a prayer to regularize him w.e.f. 17.09.2002 and another application was also made in that regard on 25.01.2003.
Learned Senior Counsel appearing for the Petitioner contended that while the matter stood thus, Petitioner was issued with a show cause vide letter dated 11.08.2003 under Annexure-8, as to why Petitioner will not be discontinued from his training and Petitioner should not be dismissed as per clause-10 of the bond and for violation of the condition stipulated in clause-1 of the same, as well as the undertaking given by the Petitioner at the time of his joining.
It is contended that on the ground that Petitioner refused to receive the show cause so issued on 11.08.2003 under Annexure-8, Petitioner was removed from the training with immediate effect vide order dated 28.08.2003 under Annexure-9. For that purpose, Petitioner was paid one month stipend in lieu of the notice period of one month.
It is contended that challenging such action of Opp. Party No.3 in issuing order dated 28.08.2003, Petitioner though moved the Appellate Authority by preferring an appeal on 26.09.2003 under Annexure-13, but Petitioner simultaneously challenging such order issued under Annexure-9, also approached this Court by filing W.P.(C) No.11363 of 2003.
It is contended that this Court vide order dated 17.06.2015 while disposing the Writ Petition, directed Opp. Party No.4 therein (Opp. Party No.1 in the present Writ Petition) to dispose of the appeal so filed by the Petitioner on 26.09.2003 under Annexure-13 within a period of eight (8) weeks from the date of receipt of the certified copy of the order.
It is contended that pursuant to such order passed by this Court, Opp. Party No.1 vide order dated 14.09.2015 under Annexure-16 while rejecting the appeal, confirmed the order passed by Opp. Party No.3 on 28.08.2003 under Annexure-9.
Learned Senior Counsel appearing for the Petitioner contended that Petitioner was so removed from the training vide order dated 28.08.2003 under Annexure-9, on the ground that he has violated clause-10 of the bond so executed in between the Petitioner and the Opp. Parties under Annexure-3. Clause-10 of the bond reads as follows:-
“10.That the company shall have the right to suspend or dismiss the trainee for any breach on the part of the trainee of any of the terms and conditions thereof or those of the training scheme and for any rules and regulations of the company for the time being in force and/ or any concealment of any disease from which the trainee was suffering prior to his being selected as stipendiary in which event the trainee and the surety aforesaid shall jointly and severally be liable to reimburse the said company with the expenditure incurred non account of an in connection with training of the trainee as provided hereinafter under the Agreement. The said surety in his individual capacity and personal capacity also, as the second party aforesaid, hereby undertake the responsibility of guarantee reimbursement to the company with its expenditure in the training of trainee in case the trainee commits and breach of any of the terms and conditions of this Agreement of the training scheme. And also the trainee shall on the termination of the said training wherever it may happen. Accounts for pay and peacefully deliver to the said company all the stock in trade books of account, document, papers and affect them in his possession and custody and belonging or relating to the said trade or business. ”
Learned Senior Counsel appearing for the Petitioner contended that in fact prior to his joining as a Trainee, pursuant to order dated 31.08.2001 under Annexure-2, Petitioner, who was a partner in a partnership firm dissociated himself from the partnership firm with registration of a deed of dissolution of the partnership on 01.08.2001, so available under Annexure-7-series.
It is contended that such a partnership deed was entered into with execution of the deed of partnership on 29.10.1999. But the same was dissolved w.e.f. 01.08.2001, with due registration of deed of dissolution of the partnership. Since Petitioner does not remain as a partner in the partnership firm w.e.f. 01.08.2001, on the ground of non-compliance of the provisions contained under Clause-10 of the bond, Petitioner could not have been disengaged while continuing with the training vide order dated 28.08.2003 under Annexure-9, further confirmed by the Appellate Authority- Opp. Party No.1 vide order dated 14.09.2015 under Annexure-16.
It is also contended that since Petitioner is a Land Oustee and he was duly appointed after facing the interview as against the post of Artisan Trainee vide order dated 31.08.2001 under Annexure-2, on the face of the dissolution of the partnership deed made on 01.08.2001 so available under Annexure-7-Series, Petitioner could not have been discontinued from the training.
Making all these submissions, learned Senior Counsel contended that order passed by Opp. Party No.3 on 28.08.2003 under Annexure-9, confirmed by Opp. Party No.1 vide order dated 14.09.2015 under Annexure-16 requires interference of this Court and with quashing of both the orders, Opp. Party-Company be directed to treat the Petitioner to have been regularized w.e.f. 17.09.2002.
Mr. N. Sarkar, learned counsel appearing for the Opp. Party-NTPC on the other hand made his submission basing on the stand taken in the counter affidavit so filed. It is though not disputed that Petitioner being a Land Oustee and after facing the interview in terms of Annexure-1, was appointed as against the post of Artisan Trainee (Fitter) vide order dated 31.08.2001 under Annexure-2, but it is contended that while continuing on such training, basing on the further orders issued under Annexure-4 & 5, since Petitioner violated the terms of the bond so available under Annexure-3, more particularly Para 10 of the bond, Petitioner was issued with a show cause on 11.08.2003 vide Annexure-C/1. However, Petitioner not only refused to accept the said show cause notice but also never filed his reply to the show cause. Refusal on the part of the Petitioner to receive the show cause was intimated by the concerned authority vide his letter dated 16.08.2003 under Annexure-D/1.
It is contended that since Petitioner was an employee at the relevant point of time under NTPC, refusal to accept the show cause so issued on 11.08.2003 under Annexure-C/1, is a grave misconduct on his part.
It is also contended that even though Petitioner has taken the stand that the partnership deed was dissolved with due execution of a deed of dissolution on 01.08.2001 under Annexure-7 series, but Petitioner on behalf of the partnership firm, issued a letter on 21.08.2002 under Annexure-B/1, wherein Petitioner undertook to disburse the PF contribution of the concerned workmen, engaged by the partnership firm with NTPC.
It is accordingly contended that since Petitioner on the face of the dissolution of the partnership on 01.08.2001, issued the letter dated 21.08.2002 under Annexure-B/1, with an undertaking to disburse the PF contribution for and on behalf of the partnership firm, it cannot be held that Petitioner is not a partner in the partnership firm, so entered into with execution of the deed of partnership on 29.10.1999 under Annexure-7-series.
It is accordingly contended that since Petitioner after getting the benefit of appointment remained and continued as a partner in the partnership firm, even though on the face of the dissolution of the partnership deed on 01.08.2001, the same amounts to violation of clause-10 of the bond so executed by the Petitioner with the NTPC on 05.09.2001 under Annexure-A/1.
It is also contended that since against the order passed by Opp. Party No.3 on 28.08.2003 under Annexure-9 Petitioner after moving the Appellate Authority on 26.09.2003 under Annexure-13, approached this Court challenging such order dated 28.06.2003 in W.P.(C) No.11363 of 2003, the Appellate Authority did not take any decision in the appeal awaiting final order in W.P.(C) No.11363 of 2003.
It is contended that the Writ Petition when was disposed of vide order dated 17.06.2015 under Annexure-14, directing the Appellate Authority-Opp. Party No.1 to dispose of the appeal so filed by the Petitioner on 26.09.2003 under Annexure-13, Opp. Party No.1 after due consideration of the appeal, rejected the same by confirming the order dated 28.08.2003 vide order dated 14.09.2015 under Annexure-16.
It is contended that since admittedly Petitioner on the face of the terms of the bond executed under Annexure-A/1, continued as a partner in the partnership firm, taking into account the undertaking given by him under Annexure-B/1, no illegality or irregularity can be found either with the impugned order dated 28.08.2003, wherein Petitioner was removed from the training but also the order passed by the Appellate Authority-Opp. Party No.1 on 14.09.2015 under Annexure-16.
To the submission made by the learned counsel appearing for NTPC, learned Senior Counsel appearing for the Petitioner made further submission contending inter alia that since the partnership firm was dissolved with due execution of deed of dissolution on 01.08.2001 under Annexure-7-series, it cannot be held that Petitioner continued as a partner in the said partnership firm which had business interest with NTPC.
It is further contended that Annexure-B/1 to the counter affidavit was issued by the Petitioner on behalf of the partnership firm as the claim relates to the period 2000-2001, that is prior to dissolution of the partnership deed on 01.08.2001.
It is contended that since strike call notice was given by the workmen engaged by the partnership firm in the NGR operation contract claiming disbursement of the PF contribution deducted from the workmen, Petitioner since was a partner at the relevant point of time, he gave the undertaking to the workmen on 21.08.2002 under Annexure-B/1 and it cannot be said that Petitioner issued such a letter being a partner of the partnership firm. It is contended that since the partnership deed was dissolved with execution of the deed of dissolution on 01.08.2001, on the face of such deed of dissolution, which was duly registered, it cannot be held that Petitioner issued Annexure-B/1 in his capacity as a partner and thereby violating Clause 10 of the bond executed in between the Petitioner and NTPC on 05.09.2001 under Annexure-A/1.
It is also contended that even if admitting that Petitioner on the face of the dissolution of the partnership deed, issued letter dated 21.08.2002 under Annexure-B/1, but such misconduct on the part of the Petitioner cannot be treated as a grave misconduct, resulting removal from the training vide order dated 28.08.2003 under Annexure-9, confirmed vide order 14.09.2015 under Annexure-16.
It is contended that since prior to such removal from training vide order dated 28.08.2003, Petitioner had already completed the required one (1) year of training as on w.e.f. 17.09.2002, with quashing of the impugned orders so issued under Annexure-9 and 16, Opp. Party-NTPC be directed to absorb the Petitioner as against the post w.e.f. 17.09.2002.
Having heard learned counsel for the Parties and considering the submissions made, this Court finds that Petitioner being a Land Oustee, he was allowed to take part in the interview for the post of Artisan Trainee vide letter dated 17.08.2001 under Annexure-1.
After coming out successful in the interview, petitioner was appointed as against the post of Artisan Trainee (Fitter) vide order dated 31.08.2001 under Annexure-2. In terms of the said order Petitioner was allowed to undergo the training with due execution of the bond on 05.09.2001 under Annexure-A/1. Even though the training period was one year, but taking into account the discretion vested with the Management, on the face of completion of one year training, Petitioner was allowed to remain on such training w.e.f. 17.09.2002 vide order dated 29.10.2002 under Annexure-4 and thereafter it was extended up to 16.09.2003 vide order dated 16.06.2003 under Annexure-5.
However, while so continuing in training in terms of the order issued on 16.06.2003, Petitioner was issued with the show cause on 11.08.2003 under Annexure-8. Such a show cause was issued by proposing termination of the Petitioner from such training on the ground that he has violated Clause 10 of the bond executed in between the Petitioner and NTPC on 05.09.2001 under Annexure-3/ Annexure A/1. Since Petitioner did not file any reply to the show cause, Petitioner was removed from the training vide order dated 28.08.2003 under Annexure-9 of Opp. Party No.3.
It is also found that challenging such order dated 28.08.2003, Petitioner though moved the Appellate Authority-Opp. Party No.1 by filing an appeal on 26.09.2003 under Annexure-13, but simultaneously Petitioner challenging such order of removal from training, also approached this Court in W.P.(C) No.11363 of 2003. The Writ Petition after being disposed of by this Court vide order dated 17.06.2015 under Annexure-14 wherein Opp. Party No.1 was directed to take a decision on the appeal so filed by the Petitioner on 26.09.2003, Opp. Party No.1 rejected the appeal vide order dated 14.09.2015 under Annexure-16.
As found from the record, Petitioner was so removed from the training vide order dated 28.08.2003 under Annexure-9, on the ground that he has violated Clause- 10 of the bond so executed on 05.09.2001 vide Annexure-A/1 and the undertaking given by the Petitioner under Annexure-B/1.
This Court taking into account the stipulation contained in Clause 10 of the bond under Annexure-A/1, the deed of dissolution executed on 01.08.2001 under Annexure-7-series and the undertaking given by the Petitioner on 21.08.2002 under Annexure-B/1, is of the view that on the face of such dissolution of the partnership deed, Petitioner could not have issued the undertaking so issued by him under Annexure-B/1, for and on behalf of the partnership firm.
It is also found and which is not disputed, Petitioner never received the show cause, so issued on 11.08.2003 under Annexure-C/1 and such refusal on his part is reflected under Annexure-D/1.
It is the view of this Court that Petitioner being an employee under NTPC, he should not have refused to receive the show cause so issued to him on 11.08.2003 under Annexure-C/1 and on the face of the dissolution of the deed of partnership on 01.08.2001, Petitioner could not have issued the undertaking so issued by him on 21.08.2002 under Annexure-D/1.
In view of such misconduct on the part of the Petitioner, it is the view of this Court that Petitioner has been rightly removed while continuing in training vide order dated 28.08.2003 under Annexure-9, so confirmed by Opp. Party No.1 vide his order dated 14.09.2015 under Annexure-16 and this Court is not inclined to interfere with the same. The Writ Petition stands dismissed accordingly.
Petitioner however is at liberty to move Opp. Party No.1 for reconsideration of his claim to get the benefit of appointment before Opp. Party No.1. It is observed that if such a request will be made by the Petitioner before Opp. Party No.1, Opp. Party No.1 shall take a lawful decision on the same, taking into account the fact that Petitioner for his misconduct has suffered a lot, being out of service for around 23 years and by the time he was discontinued from his training, he had completed around two (2) years of training.
Accordingly, the Writ Petition stands dismissed with the aforesaid liberty.