Shrimati Vidya Wati vs The Director of Industries etc.

Chet Ram Thakur, J.—By this petition under Articles 226 and 227 of the Constitution of India the Petitioner has challenged the order, dated 6-2-1964 (Annexure PF) by which she had been reverted, and the order of termination of services, dated 19-11-1970, (Annexure PQ).

The Petitioner was appointed as Assistant Technician (Chain Stitch Embroidery) vide Annexure A, dated 28th June, 1961, in the pay scale of Rs. 150-10-200. She was promoted as Technician in the pay scale of Rs. 200-10-300 and was posted at Kalpa vide order, Annexure B, dated 1st January, 1962. She was transferred from Kalpa to Spillo in the same capacity by an order, dated 5th June, 1962. On 11th June, 1962, Respondent No. 3 was appointed as Assistant Technician in the pay scale of Rs. 150-10-200 with effect from 21st February, 1962. The Petitioner worked at Spillo till 29th February, 1964, when she received an order of termination of her services, Annexure D, dated 28th January, 1964. By another letter, dated 28th January, 1964, the Petitioner was offered the post of Instructor (Chain Stitch Embroidery) at Kalpa with effect from 1st March, 1964, Annexure PE. Yet by another order dated 6th February, 1964, the Petitioner as Technician was transferred and her services were placed at the disposal of the District Industries Officer, Mandi, as Instructor in the pay scale of Rs. 120-8-200, vide Annexure F. She was relieved vide order, Annexure G, which reads as under:

DISTRICT INDUSTRIES OFFICER, KINNAUR DISTRICT KALPA No. Kin...Dated Kalpa, the February, 1964 OFFICE ORDER

Shrimati Vidya Wati, Technician, Chain Stitch Emb. Centre, Spillo, is hereby relieved today on 29-2-1964 (afternoon) and is directed to join her new assignment in the Cluster Centre, Sunder Nagar, District Mandi, Himachal Pradesh.

Sd/-K.P. NAYAR, District Industries Officer, Kinnaur district, Kalpa.

She averred that she was appointed and promoted, vide Annexure B, as Technician in the grade of Rs. 200-10-300 on 1st January, 1962 and was working as such but vide order dated 28th January, 1964, passed by Respondent No. 1, she was reduced in rank from the post of Technician to the post of Instructor in the grade of Rs. 120-8-200, which was wrong and illegal. She had been reduced in rank without being afforded any opportunity of being heard. She made representation on 27th July, 1964, as also thereafter but to no effect. Again, it is averred that she received an order, dated 19th November, 1970, whereby her services were terminated, as the Rural Industrial Training Institute, Rewalsar had been abolished. The Petitioner filed an appeal but the same has not so far been decided. Therefore, she challenged both these orders as being in violation of Article 311. Further that in the case of termination of services on abolition of the post it was Respondent No. 3, who was to go first on the principle of last come first go. Further that the Petitioner was sufficiently senior. She had been picked up for termination retaining her juniors in service and, therefore, the order was discriminatory because of the violation of Articles 14 and 16 of the Constitution. Further the services of the Petitioner could have been terminated only by one month''s notice or pay in lieu thereof. No notice of one month was given nor any pay in lieu thereof had been offered to her.

Therefore, the first question in this case is whether the order of reversion, dated 28th January, 1964, is bad. The order, dated 6th February, 1964, would show that the services of Shrimati Vidya Wati Technician (Chain Stitch Embroidery) Centre Spillo, as Instructor (Chain Stitch Embroidery) Cluster Centre in the pay scale of Rs. 120-8-200 along with her post were placed at the disposal of the District Industries Officer, Mandi, with effect from 1st March, 1964. Apparently, it does appear to be an order of reversion because she was formerly in the pay scale of Rs. 200-10-300, as averred in para 3. But it would further appear that her services had been terminated vide notice, dated 28th January, 1964, (Annexure D) which is to the following effect:

No. I&S 15 (EST) 467/63 OFFICE OF THE DIRECTOR OF INDUSTRIES, HIMACHAL PRADESH NOTICE

Under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, Shrimati Vidya Wati is hereby given notice that her service is terminated from the dated of expiry of one calendar month commencing with immediate effect.

Sd/- Director of Industries, Himachal Pradesh.

Simla-4, the 28th January, 1964

To

Shrimati Vidya Wati, Technician, Chain Stitch Embroidery Centre, Spillo (Kinnaur district) H.P.

Further, by another letter, Annexure E, of the same date she had been offered the post of Instructor (Chain Stitch Embroidery) in the pay scale of Rs. 120-8-200 with effect from 1st March, 1964, in the Cluster Centre, Kalpa, and it had specifically been mentioned in para 3 that in case the post was acceptable to her, her written consent should reach the office immediately. It appears that vide order, dated 29th February, 1964 (Annexure G), Shrimati Vidya Wati was relieved to join her new assignment in the Culster Centre. From Annexure J, dated 16th March, 1964, which is the joining report submitted by Vidya Wati it is apparent that she was relieved on 29th January,,1964, and she joined as Instructor, Culster Centre, Sunder Nagar. Therefore, it would appear that she had accepted the offer given vide Annexure E, dated 28th January, 1964, for her absorption as Instructor (Chain Stitch Embroidery) in the pay scale of Rs. 120-8-200. From this it follows that there was no question of reduction in her rank because her services were terminated vide. Annexure D and she was offered another post as stated before and she had been relieved from that post vide Annexure G, dated 29th February, 1964 and she joined her new post at Sunder Nagar vide Annexure G. Consequently the submission that there was a reduction in her rank has got no substance when she had herself accepted the offer of new assignment once her services were terminated. She made representation only on the 27th July, 1964, without any reason being disclosed for that delay. Any way the question of delay is immaterial when she herself had acquiesced to the termination order and accepted fresh offer of appointment in the lower scale. Therefore, this point has got no force and is hereby repelled.

The second point that arises for consideration is whether the termination of her services from the post of Instructor (Chain Stitch Emboidery) vide Annexure Q, dated 19th November, 1970, is legal or not. The Petitioner in the first place had contended that in respect of this order of termination of her services it had been pleaded by the Respondents in para 11 of their return that the appointment was purely temporary on year to year basis under the Third Five Year Plan and in the meanwhile a proposal for abolishing the said post was also lying with the Himachal Pradesh Government and ultimately orders for closure of the said institute at Rewalsar where she was posted at the time of termination of her services were issued by the Government vide Annexure RI-C. This is a letter from the Under Secretary (Industries) to the Government of Himachal Pradesh and it reads as-

No. 2-388/69-SI GOVERNMENT OF HIMACHAL PRADESH INDUSTRIES DEPARTMENT

To

The Director of Industries, Himachal Pradesh, Simla-4.

Dated Simla-4, the 1st July, 1970

Subject.--Closure of Rural Industrial Training Institute, Rewalsar.

MEMORANDUM

Reference your letter No. 12-8/65-Ind-II, dated the 13th January, 1970, on the above subject.

The Government have approved the proposal made therein to the closure of the Rural Industrial Training Institute, Rewalsar. You are, therefore, requested to take further necessary action in this behalf.

Sd/- Under Secretary [Industries) to the Government of Himachal Pradesh.

There can be no doubt that the Government has the right to abolish any post in the public interest, but the grouse of the Petitioner is that she was discriminated against inasmuch as there were some other junior Instructors and whose services had been retained. She has, however, not been able to show as to who were those juniors whose services had been retained. In so far as Champa Devi (Respondent No. 3) is concerned the Petitioner did not press the claim as against her. Moreover it would appear that the Petitioner was a class by herself inasmuch as she was Instructor (Chain Stitch Embroidery) Culster Centre, whereas Champa Devi was an Assistant Technician (Chain Stitch Embroidery) and, therefore, it cannot be said that she was discriminated against.

It has, however, been admitted by the Respondents that one month''s notice as required under the service contract was not given to the Petitioner and they have also not denied that the payment of salary was made to her on the day she was relieved. According to Senior Superintendent, R.M.S. Cochin and Anr. v. K.V. Gopinath, Sorter 1972 S.L.R. (S.C.) 390 it has been held:

Rule 5 of the Central Service (Temporary Service) Rules, 1965, is capable of the only interpretation that the order of termination can be upheld if the requisite amount in terms of the rule was paid into the hands of the employee or made available to him at the same time as he was served with the order of termination. Rule 5(1)(A) gives the Government as well as the employee a right to put an end to the service by a notice in writing. Under Rule 1(b) the period prescribed for such notice is one month. The proviso to Sub-rule (b) however, gives the Government an additional right in that it gives option to the Government not to retain the service of the employee till the expiry or the period of the notice, if it so chooses to terminate the service at any time it can do so forthwith "by payment to him of a sum equivalent to the amount of his pay plus allowances, for the period of the notice at the same rate at which he was drawing them immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month. Termination of service has to be simultaneous with the payment to the employee of whatever is due to him.

In this case it is admitted that the Government while terminating the service issued notice Annexure Q, which is as under:

GOVERNMENT OF HIMACHAL PRADESH INDUSTRIES DEPARTMENT No. 12-38/70-Ind-II Dated Simla-4, the 9th November, 1970 NOTICE OF TERMINATION

Whereas the Government of Himachal Pradesh have decided to close down the Rural Industrial Training Institute, Rewalsar, and as a result thereof the post of Instructor (Chain Stitch Embroidery) in the pay scale of Rs. 120-8-200 shall stand abolished and the incumbent of the post rendered surplus;

And whereas, the department have no post available for the absorption of the incumbent of the post.

Now, therefore, in pursuance of the proviso to Sub-rule (1) of Rule 5 of the Central Services (Temporary Service) Rules, 1965, I hereby terminate forthwith the services of Shrimati Vidya Wati, Instructor, Chain Stitch Embroidery and direct that she shall be paid a sum equivalent to the amount of pay and allowances for a period of one month (in lieu of the period of notice) calculated at the same rate at which she was drawing them immediately before the date on which this order is served on or as the case may be, tendered to her. However, she will be entitled to terminal benefits as admissible under Rule 10 of the rules ibid.

Sd/- Director of Industries, H.P.

It is admitted, as already stated above, that no payment of one month''s salary in lieu of notice for termination of her services forthwith was made to her. Therefore, keeping in view the principle laid down in the aforesaid authority there remains no manner of doubt to hold that this order terminating the services of the Petitioner is bad and cannot be sustained.

These were the only two points which were argued. Point No. 1 fails and in so far as point No. 2 is concerned the order of termination has been held to be bad and unsustainable. Consequently, the petition succeeds to the extent that the order, Annexure Q terminating her services is quashed and she shall be deemed to have continued in her service with all the consequential benefits accruing to her by the striking down of this order.

The Petitioner shall also get her costs, assessed at Rs. 100 from Respondents 1 to 3.