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1987 Supreme(Cal) 250
High Court Of Calcutta
U.C.Banerjee, J.
K K Majumdar
Vs.
Union Of India
C.R. No. 13874 (W) of 1985
Decided on : July 20, 1987
Advocate Appeared:
S.Bhattacharjee, S.Dutta, S.Paul, Tanima Bhattacherjee, Tapas Banerjee,
The termination of the services of an employee who is appointed on a permanent absorption basis is illegal and arbitrary if it is done without any prior notice or opportunity of being heard and if it is not in accordance with the terms of the appointment.
Headnote:
FAIRNESS - PUBLIC ENTERPRISE - APPOINTMENT OF DIRECTOR - PERMANENT ABSORPTION - TERMINATION OF SERVICE - WRIT PETITION - REINSTATEMENT.
Fact of the Case:
Petitioner was a member of the Indian Revenue Service (Income Tax). He was appointed as Director (Finance) in Bridge and Roof India Ltd. on a permanent absorption basis. After serving for a period of two years, the petitioner's services were terminated. The petitioner filed a writ petition challenging the termination of his services.
Finding of the Court:
The court held that the termination of the petitioner's services was illegal and arbitrary. The court found that the petitioner was entitled to be reinstated in service and to be paid all the benefits that he would have been entitled to if his services had not been terminated.
Issues: Whether the termination of the petitioner's services was illegal and arbitrary.
Ratio Decidendi: The court held that the termination of the petitioner's services was illegal and arbitrary because: * The petitioner was appointed on a permanent absorption basis. * The petitioner's services were terminated without any prior notice or opportunity of being heard. * The termination of the petitioner's services was not in accordance with the terms of his appointment.
Final Decision: The court allowed the writ petition, set aside the order of termination of the petitioner's services, and directed the respondents to reinstate the petitioner in service with immediate effect.
1. THE concept of fair play is no longer in the realm of judicial consideration but a well-settled principle of law. Fair play and fair treatment being the "soul of natural justice" ought to be the most accepted methodology of all Governmental action. The observations of the Supreme Court in,the case of (1) Maneka gandhi v. Union of India, reported in AIR 1978 SC 597 seem to be very apposite in his context. The Supreme Court observed :
" Natural justice is a great humanising principle intended to invest law with fairness and to secure justice -and over the years it has grown into a widely pervasive rule effecting which arises administrative action. Thus, the soul- of natural justice is the fair play re action and that is why it has received the widest recognition throughout the democratic world".
2. THE Supreme Court of New South Wales in the case of Asmand v. Public Service Board of New South Wales it Anr., reported on 1985 LR (Commonwealth) 1. 041, after noticing the American and English Law as also the development of doctrine of natural justice in the other Commonwealth countries including India observed ;
" What cannot be doubted is that there has been a growing body of precedent and other support for the desirability of and sometime the obligations upon, Public Administrative ' Tribunal, at least to state reasons for their decisions effecting seriously the interest of the person seeking those reasons. Sometimes this is expressed to be based on the requirements of natural justice and fairness. Sometimes it is articulated in terms of the inherent necessities of the proper operation of judicial process. . . . . "
The general duty of fairness as regards administrative action has also been accepted as a guiding principle by Megarry, J. in the case of bates v. Lord Hailsham, reported in (1972) All ER 12019.
3. FAIR play and fair treatment, ought to be given its due recognition and in the event the Governmental action suffers there from, the Law Court be within its jurisdiction to extend its judicious hand to grant relief to those who have fallen a pray for reason of the administrative ipsidixit.
4. BEFORE, however, adverting cm to the rival contentions which are interesting as well as important, a brief reference to facts ought to be noticed at this juncture.
The petitioner is a member of the Indian Revenue Service (Income tax) having been appointed to the Revenue Service in February, 1954. Whilst working as a Commissioner of Income Tax the petitioner at the invitation of the Public Enterprises Selection Board in June, 1982 appeared at the interview for the post of Director (Finance) in Bridge and Roof India ltd.
5. BY an Office Memorandum dated 2nd August, 1982, the Under-Secretary to the Government of India, Ministry of Petroleum, Chemicals and Fertilizers, informed the petitioner that the Public Enterprises Selection Board has recommended the name, of the petitioner for the post of Finance Director in the Bridge and Roof Company, in Schedule 'c scale of pay of Rs. 2500-3000. The Under-Secretary to the Government of India has also asked the petitioner to indicate the petitioner's willingness to be absorbed on a permanent basis in the company so as to enable the Ministry to take further steps in the matter of appointment of the petitioner as Finance Director, bridge and Roof Company. Subsequently a reminder was sent to the petitioner in regard to his pennant absorption. After the intimation of the petitioner's selection and prior to the receipt of the reminder, the petitioner, as appears from records, on 31st August, 1982 addressed to. the Under-Secretary. Government of. India, Department of: Petroleum, Ministry of Energy, while exercising option for appointment on permanent absorption basis categorically pointed out that such absorption of the petitioner should be according to the terms of the Bureau of Public Enterprises regulating the procedure and policy in the matter of appointment of top posts in Public Enterprises,
