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2019 Supreme(Guj) 415
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
N.V. Anjaria, J.
Mohini Pessuram Tilwani – Petitioner
Versus
Union of India & others – Respondents
R/Special Civil Application No. 10252 of 2018
Decided On : 30-04-2019
For the Petitioner:Mr. Yatin Oza, Sr. Advocate With Mr. MN Marfatia
For the Respondent:Mr. Percy Kavina, Sr. Advocate With Mr DG Chauhan, Ronak D Chauhan
Headnote:
Constitution of India - Articles 226, 12, 14 - Aforesaid Act - Present petition under Article of the Constitution the petitioner challenges order dated passed by respondent terminating services of the petitioner - Further challenge is laid to the order dated whereby respondent confirmed the order of termination - Petitioner has sought direction to reinstate her with all consequential benefits monetary and non-monetary inclusive of full back wages - petitioner was initially appointed under respondent – National Dairy Development Board - Petitioner joined the National Dairy Development Board (NDDB) as Head of Human Resources Department - It is the case of the petitioner that after two years and five months of service looking to petitioners capabilities knowledge and experience petitioner was offered work with respondent which is a wholly owned subsidiary of respondent By letter - Petitioner was appointed as Head of Human Resource Department for a period of five years of age whichever was early - Petitioner thereafter came to be appointed as Senior General Manager (SPD) & Support Services by respondent which was on emolument - Held, whole defence was sham and was raised for the sake of raising - As already noticed even in terms of time-leg there was a close proximity between the recognition and apprehension for the services of the petitioner on one hand and the abrupt order of termination on the other hand. Both did not have any conceivable cause and effect relationship - If at all there was any nexus, it was in terms of arbitrariness - Circumstances were not the stand-alone circumstances - It had backdrop of serious allegations of sexual harassment spread over past few months by the petitioner by highly placed employee of respondent - The petitioner filed a criminal complaint alleging about harassment of such nature - It would be seen that the petitioner in her pleadings narrated by alleging events which took place in the office of respondent which were followed by filing a criminal complaint by the petitioner - Passing of termination order coincided with the said date that is as it was passed on the same day. On behalf of the petitioner - All the above facts and events as obtained cumulatively created a strong foundation on which the termination order was shown to have been erected - Foundational factor even if circumstantial in nature was too strong to resist a conclusion that it was a retaliatory act - Such was a reasonable and inescapable conclusion in the facts and circumstances of the case - order of termination has to be held arbitrary and in violation of the tenets of Article of the Constitution - It was a punishment inflicted on the petitioner in disguise of contractual termination which was by throwing to the winds even the bare minimum principles of natural justice - Arbitrariness whenever and wherever exists by its very nature - petitioner deserves the relief prayed - Order dated passed by respondent terminating the services of the petitioner as also order dated passed by respondent confirming the order of termination both are hereby set aside - Petitioner shall be reinstated in service on same terms and in the same status and the consequential monetary benefits/remuneration for the interregnum shall be paid to her within four weeks from today - Ordered Accordingly.
By filing the present petition under Article 226 of the Constitution, the petitioner challenges order dated 28th November, 2017 passed by respondent No.3 terminating services of the petitioner. The further challenge is laid to the order dated 14th February, 2018 whereby respondent No.4 confirmed the order of termination. The petitioner has sought direction to reinstate her with all consequential benefits, monetary and non-monetary inclusive of full back wages.
2. The petitioner was initially appointed under respondent No.2 – National Dairy Development Board on 08th November, 2010. The petitioner joined the National Dairy Development Board (NDDB) as Head of Human Resources Department. It is the case of the petitioner that after two years and five months of service, looking to petitioner's capabilities, knowledge and experience, petitioner was offered work with respondent No.3 which is a wholly owned subsidiary of respondent No.2. By letter dated 08th November, 2010, the petitioner was appointed as Head of Human Resource Department for a period of five years or 60 years of age whichever was early. The petitioner thereafter came to be appointed on 16th April, 2013 as Senior General Manager (SPD) & Support Services by respondent No.3 which was on emolument of Rs.26.00 lakhs per annum. It is the further case of the petitioner that in recognition of her services, petitioner was posted as Chief People Officer heading the Human Resource Department and Administration Department by order dated 03rd September, 2015.
3. It is relevant to extract the text of the aforesaid letter dated 16th April, 2013.
“IDMC/HPD
Managing Director
Sub: Appointment of Ms.Mohini Tilwani
As a part of streamlining of the IMDC's operations, it is felt that we may consider suitable person who can take the responsibility for the following functions through a group cluster called “HPD & Support Services” comprising:
1. Human Potential Development Group: This will includes major responsibility for implementation of SAP modules like ESS/MSS, Recruitment, Performance Management System, Travel Management, Training and Event Management in existing SAP HCM at IDMC.
2. Corporate Communications
3. Import & Export
4. Insurance
5. Coordination & Monitoring Cell (C&M)
6. Guest Relations
In the above context, MD has received a letter dated 18th March 2013 from Ms. Mohini Tilwani, Head HRD, NDDB seeking an opportunity to work with IDMC. She has also obtained consent from Chairman and MD, NDDB.
At present Ms. Mohini Tilwani is working as Head (HRD) with NDDB, Anand since November 2010 and leading all HR activities which includes recruitment, performance appraisals, policy formulation & reviews, contract labour management, etc. Prior to NDDB, she worked with Ashima Group as Corporate Head *HRD & IR) and DSS Mobile Communications Ltd., as Regional Head (HDR & Administration). She brings with her 21 years of experience in the areas of People Management, General Management, HRD & IR. She holds master degree in Labour Welfare, bachelor degree in Science and Legislative Law and post graduation diploma in HRD.
Therefore as discussed with MD & ED, we propose to appoint Ms. Mohini Tilwani as Senior General Manager (HPD & Support Services) with CTC of Rs. 26 lakhs per annum.”
3.1 The aforesaid appointment was upon request of the petitioner and further supported by the consent of Chairman & Managing Director, NDDB. The letter mentioned about the service background and experience which the petitioner possessed. Her appointment was proposed as Senior General Manager and the remuneration was fixed at Rs.26.00 lakhs per annum. It was a contractual appointment and the terms of the contract were communicated to her by letter dated 17th April, 2013. The appointment letter dated 16th April, 2013 did not mention about the contractual nature.
3.1.1 The communication dated 03rd September, 2015 reads as under.
“Mohini Tilwani
Senior General Manager, HR & Administration
Dear Ms. Tilwani,
Further to the two Office
