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2020 Supreme(Guj) 526
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Vikram Nath, Ashutosh J. Shastri, JJ.
IDMC Erstwhile Indian Dairy Machinery Company Limited – Appellant
Versus
Mohini Pessuram Tilwani – Respondent
R/Letters Patent Appeal No. 1225 of 2019 In R/Special Civil Application No. 10252 of 2018 With Civil Application (For Stay) No. 1 of 2019 With Civil Application (For Direction) No. 3 of 2019 In R/Letters Patent Appeal No. 1225 of 2019
Decided On : 24-07-2020
Advocate Appeared:
For the Appellant :Mr K M Patel, Senior Advocate Assisted by Mr. DG Chauhan And Ronak D Chauhan
For the Respondent:Mr Yatin Oza, Senior Advocate Assisted By Mr. MN Marfatia
Point of Law:
The order of termination has to be held arbitrary and in violation of the tenets of Article 14 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. The arbitrariness, whenever and wherever exists, by its very nature, writs large.
Headnote:
Constitution of India, 1950 – Article 14 – Employment and Service matter – Termination of the contract of the respondent, then they were serious misconducts – “Outstanding” and “Exceptional” performance – These allegations are found to be prima facie proved in the Enquiry Report and they form the foundation for the termination of the contract of the respondent, then they were serious misconducts. Some of them relate to financial loss to the company and any charge or allegation of financial loss would amount to serious misconduct. It cannot be said that such charge or allegation would be relating to average or poor performance and that too from an officer as high as the respondent drawing a substantial annual package – Respondent was working with the National Dairy Development Board “NDDB” from where she had resigned and was relieved so that she could take up assignment with the appellant company. The respondent was offered contractual appointment for 5 years as Senior General Manager vide communication on an annual package (CTC) of Rs.26 lakh – The order of termination has to be held arbitrary and in violation of the tenets of Article 14 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. The arbitrariness, whenever and wherever exists, by its very nature, writs large – Held, There is no apparent discussion or application of mind by the Board of Directors – We may further record here that the appellant company has admitted in the appeal of not having filed complete documents before the learned Single Judge as adequate opportunity was not given – Said opportunity has been availed in the appeal and the documents filed in appeal have been duly examined by us and in effect we have accepted the argument of Mr. Patel, learned Senior Advocate to the effect that the allegations of sexual harassment as made by respondent in the petition could not be held to be the basis of termination, but at the same time we have also held that the termination of the respondent’s contract was neither bonafide nor fair and reasonable – We have in principle accepted the contention of Mr. Patel. We may further mention here that even in the absence of the baseless and reckless allegations of sexual harassment being not accepted by us, we are of the view that termination of the contract of respondent was arbitrary and not bonafide – Once termination is held to be arbitrary, respondent would be entitled to all benefits as if termination order did not exist – In our considered view also, facts and circumstances which are placed on record by way of documents and the chronology set out compels us to derive an inference that the termination of contract was not simpliciter, genuine and bonafide. We do not wish to record any further and leave matter at this stage – Ultimate conclusion of the learned Single Judge, in our considered opinion, does not require any interference – Appeal is dismissed. (Paras 33, 34 and 35)
Facts of the case:
Case apparently is riddled with complexities. After unraveling the voluminous records produced by both the parties, we believe that we have been able to discern the truth. Both the parties have endeavoured to speak half truths. There appears to be concealment by both the sides. While embarking on this quest for truth we have derived a gainful insight into human behavior, mannerisms, motivations and many a subtle hues which go behind the decision making process – respondent was working with the National Dairy Development Board (in short “NDDB”) from where she had resigned and was relieved so that she could take up assignment with the appellant company. The respondent was offered contractual appointment for 5 years as Senior General Manager vide communication dated 16.04.2013 on an annual package (CTC) of Rs.26 lakh – These allegations are found to be prima facie proved in the Enquiry Report dated 21.11.2017 and they form the foundation for the termination of the contract of the respondent, then they were serious misconducts. Some of them relate to financial loss to the company and any charge or allegation of financial loss would amount to serious misconduct. It cannot be said that such charge or allegation would be relating to average or poor performance and that too from an officer as high as the respondent drawing a substantial annual package.
Findings of the court:
There is no apparent discussion or application of mind by the Board of Directors – We may further record here that the appellant company has admitted in the appeal of not having filed complete documents before the learned Single Judge as adequate opportunity was not given – Said opportunity has been availed in the appeal and the documents filed in appeal have been duly examined by us and in effect we have accepted the argument of Mr. Patel, learned Senior Advocate to the effect that the allegations of sexual harassment as made by respondent in the petition could not be held to be the basis of termination, but at the same time we have also held that the termination of the respondent’s contract was neither bonafide nor fair and reasonable – We have in principle accepted the contention of Mr. Patel. We may further mention here that even in the absence of the baseless and reckless allegations of sexual harassment being not accepted by us, we are of the view that termination of the contract of respondent was arbitrary and not bonafide – Once termination is held to be arbitrary, respondent would be entitled to all benefits as if termination order did not exist – On record by way of documents and the chronology set out compels us to derive an inference that the termination of contract was not simpliciter, genuine and bonafid – Ultimate conclusion of the learned Single Judge, does not require any interference.
Result: Appeal is dismissed
JUDGMENT :
VIKRAM NATH, J.
1. Truth is the foundation of justice and that dispensation of justice, based on truth, is an essential feature in the justice delivery system. Truth is a mirage. It rests in the recesses of the human mind. What emerge are actions driven by the perplexities of emotion, judgment and perceptions. Examined on the touchstone of the justice, Courts evaluate facts as they emerge on record, proceeding to uphold or set aside these actions through judicial appraisal. It is not for Courts to unravel the complexities of the human mind. Suffice it to say that both the petitioner and the respondents have spoken half truths.
1.1 Parties to any litigation before a court should not harbour the misconception that since the statue of Lady Justice has blindfolded, the justice system turns a blind eye to acts like pre-variation, motivated falsehoods, collusion and the like. Using truth as a guiding star in the entire judicial process, is our mandate, obligation and bounden duty.
2. The present case apparently is riddled with complexities. After unraveling the voluminous records produced by both the parties, we believe that we have been able to discern the truth. Both the parties have endeavoured to speak half truths. There appears to be concealment by both the sides. While embarking on this quest for truth we have derived a gainful insight into human behavior, mannerisms, motivations and many a subtle hues which go behind the decision making process.
3. In the context stated above, some brief facts and the disturbing questions relating to engagement of respondent in the appellant company and sudden dismissal after 4½ years of exemplary service from the appellant company are reproduced below. These facts are borne out from the record and are more or less admitted to the parties :-
[1] The respondent was working with National Dairy Development Board, of which the present appellant company is a wholly owned subsidiary.
[2] The appellant company in 2012-13 was not in a good shape, which required restructuring and a complete overhaul in the management so as to bring it back on road.
[3] The respondent was picked up by the appellant company from NDDB, which is the mother company, to join and serve the appellant company and get it restructured and reformed. Respondent’s performance in NDDB was found upto the mark and that is why she was selected for the appellant company.
[4] In April, 2013 she was appointed in the appellant company as Senior General Manager with a starting annual package of Rs.26 lakhs for a period of 5 years. Her performance report in NDDB finds mention in the appointment letter.
[5] In September, 2015 she was given a fresh engagement by the appellant company as Chief People Officer with starting annual package of Rs.37,67,091/-.
[6] This appointment was given after 2½ years of respondent working as Senior General Manager. Both the appointment letters are already quoted in this judgment wherein it is duly recorded about her experience, performance and output in NDDB and IDMC – the appellant.
[7] The Annual Performance Report for the year 2014-15 is mentioned in the second appointment letter dated 03.09.2015 as “Outstanding”. In 2015-16 again it was “Outstanding” and in 2016-17, it was “Exceptional”.
[8] The last Annual Performance Report declaring it to be “Exceptional” is dated 17.08.2017.
[9] The respondent No.5 in the writ petition (appellant No.2) is said to have constituted a Committee on 11.11.2017 of two Senior Executives to look into the complaints against respondent.
[10] The Committee submitted its report on 21.11.2017 already reproduced in this judgment.
[11] The respondent No.5 to the writ petition (appellant No.2) impleaded by name as malafides are alleged against him was appointed as the Acting Managing Director in the month of April 2017 and later as Managing Director on 18.11.2017.
[12] Within 3 days thereon the Committee report was furnished on 21.11.2017 and within a week thereon saw the termination order b
