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Judgment
D.K. Seth, J.—On the death of Girish Muni Dixit, the petitioner was given an appointment by an order dated 13th December, 93 under the Dying in Harness Rules with the consent of the widow of the deceased. The letter of appointment dated 13th December, 93 indicates that the said appointment was made under the Dying in Harness Rules on the basis of the consent of the widow of the deceased on certain conditions contained in that letter of appointment, namely that he would be appointed on probation for a period of one year and his services could be terminated without giving any reason. It was one of the condition that the petitioner would be maintaining the widow of his brother and in case of any complaint, 50% of the salary would be paid to the widow. In case the widow is not being properly maintained, in that event the widow may cancel her nomination and the petitioner''s service could be terminated without any compensation and without any notice. In case the petitioner was agreeable to accept those conditions, he may return one copy of the said appointment letter after his signature thereon.
Mr. Arun Kumar Gupta, appearing with Mr. Bishram Tewari, counsel for the petitioner submits that the conditions contained in the said appointment are dehors the standing order and, therefore, cannot be included in the order of appointment. Neither the petitioner''s service could be terminated, which had so been terminated by the order dated 22nd November, ''94, being Annexure II to the writ petitioner since been challenged. The conditions are opposed to public policy and as such, the same cannot be given effect to for the purpose of terminating the service on the said conditions which are wholly outside the scope and perview of the certified standing order. The moment the petitioner was engaged, he became subject to the certified standing order. His service could not be terminated dehors standing order. His second contention was that the petitioner''s service was terminated on the alleged ground as mentioned in the order of termination without giving any notice to him. According to him, even if the person is on probation, if termination is on account of certain allegations, in that event, it was incumbent upon the respondents to give opportunity to the petitioner by issuing notice to him. His next contention was that once the widow had exercised her option, she is estopped from withdrawing such option and/or nomination. His fourth contention was that even on the basis of such condition at best the respondents could have paid 50% of the salary to the widow but could not have terminated his service once appointed in service. He further contends that the deceased used to maintain not only the widow but also his parents and unmarried sisters. The Dying in Harness Rules was conceived of for saving the family from immediate destitution. The destitution of the mother of the deceased as well as of the unmarried sister are also equally within the scope and ambit of the principle on which the Dying and Harness Rule was formulated, and therefore, the widow cannot claim exclusively under the said principle and deprive the other members of the family, as in this case where she had left the family and had been residing with her brother. On this ground also, it was not open to the respondents to terminate the service of the petitioner.
After having heard Mr. Arun Kumar Gupta, it appears that the entire dispute centres round between the petitioner and the widow of his deceased brother. The impugned order itself contains a clause that by the said order while the service of the petitioner was being terminated, the widow of his deceased brother was being appointed. Admittedly, the appointment was under the Dying in Harness Rules and on the basis of nomination given by the widow. Whether good, bad or indifferent, the appointment contains certain conditions, which concerns the widow. The termination also concerns the widow. Thus by an order if the relief sought for in this writ petition is allowed, in that event the order dated 22nd November, 94 is to be set aside, which will inflict an injury having civil consequence on the widow inasmuch as by reason of the said order, the appointment of the widow would stand cancelled. Therefore, the widow is a proper party to the writ petition. From the facts and circumstances of the case, there is no escape from the conclusion as arrived above with regard to the necessity of the widow being a party to the proceedings.
Now it is argued by Mr. Gupta relying on the decision in the case of Central Inland Water Transport Corporation Ltd. & another v. Brojo Nath Ganguly & another 1986 (3), SCC, 156 that the conditions of the contract being unconscionable, unfair and unreasonable and opposed to public policy, the same are void, and, therefore, no steps could be taken on the basis of such condition and the appointment given to the widow persuant to such condition also is rendered void and, therefore, the widow is not a necessary party since it is the petitioner, who is effected by the said order.
The fact remains that the petitioner had obtained the appointment on the basis of the nomination made by the widow under the Dying in Harness Rules. The Dying in Harness Rules was formulated persuant to a public policy. The policy has not been held by any judicial decision to be opposed to public policy or unconscionable, unfair or unreasonable. Therefore the condition even if there be any, the same cannot be said to be opposed to the public policy or unconscionable and unreasonable, when purpose of the appointment of the petitioner was to save the family of the deceased from immediate destitution. Admittedly, the widow was one of the members of the family, whose destitution is required to be saved. Therefore, it cannot be said that the appointment given to the widow is void, and, therefore, she is not a necessary party. Since as in my opinion, the conditions contained in the said appointment letter were not unconscionable, unfair and unreasonable and opposed to public policy, on the other hand these are conscionable, reasonable and fair within the principle of appointment under the Dying and Harness Rules, the widow had a right to cancel the nomination and in such a case the appointment of the petitioner would stand terminated as the condition itself .provided the same condition. Admittedly, the appointment has been terminated before the period of probation was complete. Thus, it cannot be said that the widow is not a proper party in the proceedings.
Mr. Gupta relied upon the decision in the case of Anup Jaiswal v. Government of India, 1984(2) SCC 369 in order to contend that even during the period of probation the termination if done on the basis of certain allegations against him, in that event it is incumbent upon the respondents to give opportunity to the petitioner since the termination is punitive in nature, which requires an enquiry since such termination violates Article 311(2). Though Mr. Gupta had very fairly contended that Article 311(2) has no manner of application in the case of the petitioner, since he is not a Govt. servant, but still then, according to him, the principle of affording opportunity is definitely attracted even in such case.
There might be some substance in the submission of Mr. Gupta. But such questions can be gone into only when the widow is a party to the proceeding. Inasmuch as if the contention of Mr. Gupta is acceded to and the order is set aside, in that event it will inflict civil consequence on the widow, who is not party to the proceedings. No order can be passed affecting the third party, who is not before this court. Even during the course of argument at no point of time, Mr. Gupta had prayed for adding the widow as a party to the proceedings nor he had asked for any adjournment for taking steps in this regard. Therefore, despite there being some semblence of substance in the submission of Mr. Gupta, in absence of the widow in these proceedings it is not possible for this Court to go into these questions and entertain the said point.
The other questions raised by Mr. Gupta relying on the decision in the case of Rajasthan State Road Transport Corporation v. Krishna Kant, 1995(5), SCC 75 is that the conditions written in the appointment letter being opposed to the certified standing order, are void to that extent and are not binding on the employer and the employee, and, therefore, his service could not terminated on the basis of the such condition. Though there might be some substance in the submission of Mr. Gupta with regard to be said point. But, still then, on the same analogy on which the decision in the case of Anup Jaiswal, (supra), could not attracted in view of the absence of the widow as a party to the proceedings, this contention cannot be acceded to in absence of the widow since the effect of the relief granted to the petitioner on the basis of such submission would effect the widow inviting civil consequence in respect of her right.
Since the widow is not a party to the proceedings, this writ petition is dismissed on account of nonjoinder of parties. Therefore, it is not necessary to go into other questions as to whether the widow is estopped from withdrawing her nomination or whether the petitioner could be subject only to the certified standing order or not simply on the ground that the writ petition in absence of the widow as a party to the proceedings, is not maintainable.
In the result, the writ petition fails and is, accordingly, dismissed. There will, however, be no order as to costs.
(Petition dismissed)