Tarsem Lal vs Punjab State Electronics Development and Production Corporation Limited

Sabina, J.—Petitioner has filed this petition challenging order dated 31.1.1992, Annexure P16, and order dated 19.3.1993, Annexure P44.

The case of the petitioner, in brief, is that he was appointed as Senior Scale Stenographer with the Punjab State Electronics Development and Production Corporation Ltd. (hereinafter referred to as `Corporation'') vide appointment letter dated 29.4.1982. Services of the petitioners were regularized vide order dated 22.5.1985. Petitioner was promoted as Assistant Manager (ELTOP) vide order dated 19/20.12.1989. Petitioner was, unanimously, selected as President of the Scheduled Castes/Scheduled Tribes Employees Welfare Association. In the capacity of the President of the Association, petitioner highlighted the mismanagement and irregularities of the then Managing Director of the Corporation. Due to this reason, the Managing Director and other officers tried to get rid of the petitioner. In the year 1991, Government took the decision to transfer the work of ELTOP to Notified Area Committee, Mohali (hereinafter referred to as `Committee''). The Managing Director with a view to get rid of the petitioner ordered his transfer vide order dated 31.10.1991 to the Committee without the consent of the Committee as well as the petitioner. The Committee also opposed the transfer order, in respect of the petitioner, vide order dated 4.11.1991, Annexure P9. Petitioner was on leave with prior permission to leave the station from 4.11.1991 to 7.11.1991. When the petitioner came back to Chandigarh to join his duty, he came to know that he had been transferred to the Committee. Respondent-Corporation did not allow the petitioner to join his duty. In this regard, petitioner filed CWP No. 16939 of 1991 challenging the order dated 31.10.1991, Annexure P7. Petitioner moved a representation dated 29.1.1992, Annexure P14, on coming to know that he might be illegally retrenched. However, the respondents cancelled the transfer order of the petitioner to the Committee and ordered the retrenchment of the petitioner vide impugned order dated 31.1.1992, Annexure P16. Consequently, the writ petition filed by the petitioners was dismissed with liberty to the petitioners (including the present petitioner) to pursue their remedy before the Civil Court or Labour Court, if so advised, vide order dated 5.2.1992, Annexure P17. Petitioner filed various representation to the Corporation for his reinstatement. However, the Board of Director rejected the claim of the petitioner on 19.3.1993 Annexure P44. Hence, the present petition.

Petitioner has appeared in person and has submitted that he had been unjustly treated by the respondent-Corporation. He has further submitted that he had worked with the Corporation with utmost dedication. It is only because he wanted to point out the irregularities committed by the Managing Director of the Corporation, being President of the Association of the employees belonging to the Scheduled Castes/Scheduled Tribes category, the Managing Director as well as the other officers tried to get rid of him. There was no occasion to transfer him to the Committee without obtaining prior permission of the Committee. Due to this reason, he challenged his transfer by the respondent-Corporation to the Committee by way of a writ petition in this Court. However, to harm him, the transfer order was withdrawn and he was illegally retrenched. He was not a workman within the definition of the Industrial Disputes Act, 1947. Impugned order dated 31.1.1992 Annexure P16, had not been passed by the Managing Director and was illegal. Therefore, the impugned order dated 31.1.1992 and 19.3.1993, Annexures P16 and P44, respectively, were liable to be set aside.

Petitioner has placed reliance on the decision of this Court in Swaran Kaur vs. Chandigarh Administration and others 1995(1) Recent Services Judgments 269 wherein it was held that the theory of hire and fire at the behest of the employer was liable to be deprecated.

Petitioner has next place reliance on Chandar Kiran Maini vs. The Punjab Agro Industries Corporation 1993(2) SCT 111 wherein it was held that where the abolition of post was to ease out the employee, then the same was liable to be set aside.

Learned counsel for the respondents, on the other hand, has submitted that the post on which the petitioner was working, stood abolished and, therefore, the impugned order dated 31.1.1992, Annexure P16, was liable to be upheld. Vide order dated 31.10.1991 Annexure P7, maintenance of water supply, roads, street lights, sewerage Storm drainage and staff in respect of ELTOP complex was transferred to the Committee. The work of ELTOP division along with 22 employees was transferred to the Committee Mohali with effect from 4.11.1991. Vide Annexure P9, Committee wrote to the Corporation that Deputy Managers and Assistant Managers may not be transferred to the Committee. Petitioner along with three others filed CWP 16939 of 1991 challenging order 31.10.1991, Annexure P7. Consequently, order Annexure 15 dated 27.1.1992 by the Managing Director of the Corporation was passed and order Annexure P7 was cancelled. In pursuance to order dated 27.1.1992, Annexure P15, impugned order dated 31.1.1992, Annexure P16 was passed. The writ petition filed by the petitioner and others was dismissed and liberty was given to the petitioners to pursue their remedy before the Civil Court or Labour Court, if so advised. Petitioner waited for 2-1/2 year before filing the present writ petition. Petitioner had enrolled himself with the Bar in the year 1993. Petitioner had attained the age of superannuation in February, 2009, Therefore, the writ petition was liable to be dismissed.

In the present case, petitioner was working with the respondent-Corporation. Vide Annexure P7, the work of ELTOP division along with 22 staff members were transferred to Committee Mohali with effect from 4.11.1991. Petitioner was working as Assistant Manager with the ELTOP division of the Corporation at the relevant time. The Committee also wrote to the respondent-Corporation that the Deputy Managers and Assistant Managers may not be transferred to the Committee. Petitioner along with three others also approached this Court by way of CWP No. 16939 of 1991 challenging his transfer to Committee vide order dated 31.10.1991, Annexure P7. During the pendency of the petition, the respondent-Corporation passed the order Annexure P15 dated 27.1.1992. A perusal of the said order reveals that the order dated 31.10.1991, Annexure P7, stood cancelled relating to the petitioner and N.P. Singh, Accountant and Dev Raj, Senior Scale Stenographer, Malkiat Singh Clerk. The said order reads as under:-

In modification of the earlier order No. PSEC/ADMN/91-92/2604-27 dated 31.10.1991, the services of the officials transferred to Notified Area Committee, Mohali, w.e.f. 4.11.1991 (FN) stands cancelled relating to the following officers/officials:-

Mr. Tarsem Lal, Asst. Manager (E)

Mr. N.P. Singh, Accountant

Mr. Dev Raj, Sr. Scale Stenographer

Mr. Malkiat Singh, Sr. Clerk

Since the services of the above officers/officials had been transferred keeping into consideration the transfer of the maintenance project of roads, electricity, sewerage, water supply, storm water drainage of the ELTOP Division to the Notified Area Committee Mohali and as per the directive of the Punjab Govt. and the mutual agreement, the staff working on the said project also had been agreed to be absorbed by the Notified Area committee, Mohali. In all 22 persons working on the project have been transferred to the Notified Area Committee and out of the said 22 persons 4 officials named here above questioned the transfer and the order passed by the Corporation. As the officers referred here above are not interested in joining the alternate/transfer services with Notified Area Committee, Mohali, the Corporation is left with no other alternative but to retrench the services of the abovesaid officials as the Corporation does not have any post vacant where the above officials can be absorbed. It shall be pertinent to point out that the above said officers cannot be paid salary against the post against which they had been working as the post stood abolished in view of the transfer of the employees. The services of the above said officers are no longer required by the Corporation in view of the project having been transferred and as such are surplus with the Corporation. The above said officers be served with 3 months'' notice or be paid salary in lieu thereof as stipulated in the terms of conditions of their appointment given to the said officers/officials, however, the retrenchment compensation be also paid as contemplated and provided u/s 25(f) of the Industrial Disputes Act, 1947. It may be stated here that the above said officers are the junior most persons in their respective cadre of service.

It is further ordered that the above said officers be paid the amount due to them i.e. the salary in lieu of 3 months notice and the retrenchment compensation. The office is directed to enclose the cheques for the amount payable to each of the official/officer and the same be delivered to them accordingly. The amount payable shall also include the payment of leave encashment if due any to the officials/officers as per record. The claim of re-employment of the employees so retrenched shall be considered in accordance with the provisions of law.

It is further ordered that in the case of above employees who did not report on duty to NAC or the Corporation w.e.f. 4th of November, 1991, the period of absence be treated as extraordinary leave without pay."

The said order was passed by the Managing Director. In pursuance to the order dated 27.1.1992, Annexure P15, passed by the Managing Director, impugned order dated 31.1.1992 Annexure P16 was passed by the Deputy Manager. The said order reads as under:-

In modification of the order dated 31.10.1991 vide which your services had been transferred to Notified Area Committee, Mohali, the transfer order stood cancelled vide office order dated 27.1.1992 and vide order of the even date, it has been ordered to retrench your services as the Corporation does not have any post against which you can be accommodated or absorbed. The retrenchment is being made in pursuance of Section- 25(F) of Industrial Disputes Act, 1947 and as per the said Provision notice for one month is required to be given or salary in lieu thereof is payable to you, but as per the service conditions, the period has been specified as 3 months, it has, therefore, been ordered that you shall be paid the salary in lieu of 3 months notice which shall include one month notice as provided u/s 25(F) of the Industrial Disputes Act, 1947.

You are entitled to the retrenchment compensation as per Section 25(F) commensurate to the service rendered by you to the Corporation. The details of which are stated as hereunder:-

Your services shall stand terminated and retrenchment ordered w.e.f. 1.2.1992 as you have not attended the office of the Corporation w.e.f. 4.11.1991 nor you have reported for duty to the Notified Area Committee, Mohali upon the transfer of your services vide order dated 31.10.1991. Since you remained absent from duty, the period of absence from 4.11.1991 upto 31.1.1992 has been treated as extraordinary Leave without Pay. The period of 3 months shall commence from 1.2.1992, as such, the salary for the period of 3 months from 1.2.1992 to 30.4.1992 is enclosed vide Cheque No. 203193 (State Bank of India), dated 30.1.1992 for Rs. 65,467.16 (including Leave Encashment).

Your claim in respect of leave encashment as per the record and the report submitted by the official concerned is detailed as here above and the amount payable towards leave encashment is also included in the above said cheque.

Your services are hereby terminated and the retrenchment ordered accordingly.

You are hereby further informed that your claim with regard to re-employment shall be considered in accordance with the provisions of law as and when the employment is made by the Corporation.

CWP No. 16939 of 1991 filed by the petitioner and other was dismissed vide order dated 5.2.1992, Annexure P17, and the same reads as under:-

"Civil Miscellaneous is allowed as prayed.

In view of the order Annexure R-10.

We dismiss this writ petition with liberty to the petitioners to pursue their remedy before the civil court or Labour court, if so advised.

Learned counsel for the respondents has submitted, during the course of arguments, that the other three petitioners in CWP No. 16939 of 1991 had raised an industrial dispute but had failed. So far as petitioner is concerned, he did not approach the Civil Court or the Labour Court in pursuance to the order dated 5.2.1992, Annexure P17, but preferred to file the present writ petition in October, 1994 challenging orders dated 31.1.1992 and 19.3.1993 Annexure P16 and P44, respectively.

During integrum period, petitioner represented to the Board of Directors of the Corporation for his reinstatement. However, the Board of Directors vide Annexure P44 did not approve the proposal for reinstatement of the retrenched employees i.e. Petitioner N.P. Singh, Dev Raj and Malkiat Singh.

Thus, in the present case, petitioner was ordered to be retrenched as there was no post with the Corporation where petitioner could be absorbed. Consequently, retrenchment compensation was offered to the petitioner. The retrenchment compensation was later accepted by the petitioner under protest.

Since in the present case, the Corporation did not have any vacant post where the petitioner could be absorbed, it had no option but to retrench the petitioner. The said act of the Corporation cannot be said to be illegal. It is not a case where only petitioner was retrenched. In fact, the ELTOP project stood transferred to the Committee with 22 staff members. Petitioner and three others objected to their transfer. Committee also opposed the transfer of Assistant Managers. Therefore, the only option available with the Committee was to abolish the post of petitioner and offer him necessary compensation. It has transpired, during the course of arguments, that the petitioner was a Law Graduate and enrolled himself with the Bar in the year 1993 and had attained the age of superannuation in February, 2009. In view of the facts and circumstances of the present case, no relief can be granted to the petitioner. The judgments relied upon by the petitioner fail to advance his case as they are not applicable to the facts of the present case.

Dismissed.