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Gujarat High Court
Judgename :C.K.THAKKER, R.M.Doshit
GUJARAT MINERAL DEVELOPMENT CORPORATION LIMITED - Appellant
Versus
B.B.SINHA - Respondent
L.P.A. 918 of 1995
Decided On : 10/24/1997
(b) Service Law - Termination - Non compliance of Natural Justice - Impugned termination bad.
An action can be taken by way of penalty. But then, before taking penal action, a show cause notice is required to be issued, explanation must be called for an opportunity of hearing ought to be afforded. Only by complying with the principles of natural justice and fair play, a punitive action can be taken. In the instant case, that is not done and hence, the action of the Corporation is illegal and unlawful.
[Para 11]
The law appears as well settled and the learned Single Judge has not committed an error of law in holding that if an employee is confirmed in service, by termination simpliciter, his services cannot be dispensed with.
The learned Single Judge after considering the case law on the point held that such a provision could not be said to be lawful. Rule 27 of the rules was, therefore, held to be ultra-vires and unconstitutional. We do not find any infirmity therein.
[Para 12]
The order, therefore, was rightly held to be illegal, unlawful and contrary to law and the learned Single Judge has not committed an error of law in setting aside such order. As the order could not have been passed in consonance with the provisions of law, it was required to be quashed and set aside.
[Para 13]
(c) Service Law - Termination - Reinstatement - Single Judge declared impugned termination illegal but did not allow reinstatement but directed compensation - Petitioner approaching superannuation - On facts and circumstances no interference called for - Plea for extension of service not accepted.
Considering the rival contentions of the parties and without expressing final opinion one way or the other as to in such cases reinstatement ought to have been granted or not, in the light of the fact that the petitioner would reach age of superannuation on 31st December, 1997, we would not like to interfere with the order passed by the learned Single Judge and by granting reinstatement to the petitioner. The petitioner, no doubt, submitted that he has been deprived of performing functions and discharging duties from June, 1994 for no fault on his part and he should not suffer because of delay by the Court. He further submitted that he is physically fit, mentally alert and morally courageous to take appropriate decision in accordance with law in all situations. He further submitted the Court may order the Corporation to extend his period of service for one year or more.
[Para 22]
We are afraid we cannot issue such a direction. Since the age of superannuation is in near future, in our opinion it would not be proper to disturb the order passed by the learned Single Judge by granting reinstatement. We, therefore, refuse the relief sought by the petitioner in peculiar facts and circumstances of the present case.
[Para 23]
(d) Service Law - Termination - Compensation - Quantum - Impugned termination held illegal - Court allowed compensation instead of reinstatement - Amount allowed by Single Judge not reduced.
In the facts and circumstances of the case, in our judgment, it is not at all proper and equitable to disturb that part of the judgment. Frankly speaking, we are convinced that the action taken by the Corporation was unwarranted, uncalled for an inequitable. We might have considered the prayer of the petitioner of granting full relief of reinstatement but for a short span of period within which the petitioner is to reach the age of superannuation. Had there been little longer period, we would have seriously considered his prayer of reinstatement. It would, therefore, in our opinion, not be proper to interfere with the order passed by the learned Single Judge and the contention raised on behalf of the Corporation must be rejected.
[Para 25]
(e) Constitution of India, 1950 - Art. 133 - Prayer for certificate of fitness to appeal in Supreme Court - No substantial question of law involved - Prayer refused.
The petitioner party-in-person prays to grant a certificate of fitness to approach the Honble Supreme Court under Art. 133 of the Constitution of India. In our opinion, the case does not involve a substantial question of law of general importance, which, in our opinion, needs to be decided by the Supreme Court. According to us, the law is well settled. In the light of that well settled legal position and in peculiar facts and circumstances of case, we have disposed of appeals. Leave is, therefore, refused.
[Para 27]
( 1 ) BOTH these appeals arise out of a common judgment and order passed by the learned single Judge in Special Civil Application No. 10679 of 1994, decided on 5th September, 1995. That petition was filed by B. B. Sinha, appellant of Letters Patent Appeal No. 940 of 1995 for an appropriate writ, order or direction quashing and setting aside the order dated June 21, 1994, passed by the gujarat Mineral Development Corporation LIMITED (hereinafter referred to as "the corporation") (Appellant of Letters Patent Appeal No. 918 of 1995), by which the services of the petitioner came to be terminated. A further prayer was made to hold rule 27 of the Gujarat Mineral Development Corporation (Staff) Service Rules, 1969 (hereinafter referred to as "the Rules") invalid, unconstitutional and ultra vires Art. 14 of the Constitution of India. A prayer was also made directing the respondent- corporation to treat the petitioner in continuous service and by ordering the corporation to pay to the petitioner salary and other allowances treating him as on duty continuously from the date of termination.
( 2 ) IT was the case of the petitioner that he was appointed as Mines Manager at Lignite Project, Panandhro, in February, 1987. He was appointed as Mines manager in March, 1987 on probation for a period of one year. His services, however, came to be terminated in exercise of power under Rule 27 of the Rules by offering him a sum equivalent to three months salary. The said action was challenged by the petitioner in the above petition. Various contentions were raised at the time of hearing of the petition. The learned single Judge by his judgment and order dated september 5, 1995, partly allowed the petition. According to the learned single Judge, the order of termination deserved to be quashed and set aside. In view of the reasons recorded and observations made in the body of the judgment, he was also of the opinion that Rule 27 of the Rules which enabled the Corporation to discharge or terminate services of a confirmed employee was unconstitutional and ultra vires. In view of the facts and circumstances of the case, and in the light of various decisions of the Apex Court, however, the learned single Judge did not grant reinstatement to the petitioner and passed the following order :"the impugned order of termination would stand set aside consequent upon Rule 27 as aforesaid having been successfully challenged in this petition. The respondent- corporation shall pay to the petitioner in lieu of reinstatement : (a) a sum of Rs. 2,83,000. 00 subject to the deduction as hereinafter stated; (b) The petitioner shall be paid terminal benefits on the basis of the petitioners conclusion of service, as on the date of this judgment and accordingly, Gratuity and contributory Provident Fund shall be worked out and paid; (c) Following deductions shall be made from the amount of Rs. 2,83,000. 00 payable by way of compensation : (i) Loan or advances, if any, taken by the petitioner. (ii) Other legal deductions. (iii) The amount of salary for three months stated to have been paid by way of cheque alongwith the notice of termination, if not returned or paid back by the petitioner. (iv) Since the amount is being paid in one lumpsum, it is likely that the employer may take recourse of Sec. 192 of the Income-Tax Act, 1961, which provides that any person, responsible for paying any income chargeable under the head "salaries"shall at the time of payment, deduct income-tax on the amount payable at the average rate of income computed on the basis of the rates in force for the financial year in which payment is made on the estimated income of the assessee under this head for that financial year. If, therefore, the employer proceeds to deduct income-tax as provided by sec. 192, it must be made abundantly clear that the petitioner would be entitled to relief under Sec. 89 of the Income-Tax Act which provides that where by reason of any portion of assessees salar
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