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2015 Supreme(Raj) 567
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH
VEERENDR SINGH SIRADHANA, J.
Syed Sharji Hussain – Petitioner
Vs.
IDBI Bank Ltd. & Anr. – Respondents
S.B. Civil Writ Petition No.12909/2013
Decided On : 5-10-2015
Advocate Appeared:
Mr. Sunil Samdariya, for the petitioner.
Mr. Sanjeev Prakash Sharma, Sr. Counsel with Mr. Sanjay Rahar and Mr. Ankit Sethi, for the respondents.
Headnote:
Constitution of India,1950 - Articles 14, 21, 12, 226 , 32, 226(2) , 302 , Clause (1) of Article 38 , 14 , 19 (1)(f) and (g) ,14, 38, 39 and 41 - Contract Act - Sections 23, 52(2) , 52(1) - Code of Civil Procedure - Section 20 (c) and Section 141 - Companies Act, 1956 - Section 617 Sea Customs Act, 1878 - Section 178A - Provident Fund Act - Section 143 - Annual compensation - Territory Sales - Notice - Patently unlawful Appreciation of controversy are that petitioner was appointed in the Management Grade J-I, as a Team Member at its Office vide by respondent No.2. On promotion to Grade J-3 as Territory Sales Manager, his Annual compensation was enhanced communication dated 3rd services of Organization compensation was further enhanced performance of the petitioner, for the financial employment of the petitioner was suddenly put to an end vide order invoking Clause (a) under Annexure-III, which provided for a Notice Period - Facts and grounds of writ application, while assailing the impugned provision - Notice Period under Annexure-III of Letter of Appointment asserted that condition as contemplated under Clause (a) offer of appointment, empowering the respondent-employer to terminate the service of a confirmed employee by serving three months notice void and inoperative in eye of law in view of several pronouncements – Petitioner was appointed by respondent-employer in Management Grade J-I as a Team Member at its Office vide letter was accorded promotion to the Grade J-3 as Territory Sales Manager and his Annual compensation was enhanced – Held, Supreme Court after having considered the controversy held that company being non statutory body and one incorporated under Companies Act - There was neither statutory nor public duty imposed on it by statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any statutory or public duty development of law in course of the time, as has been elaborately dealt with by the Honble Court of land in case of Central Inland Water Transport Corporation opinion as referred to and relied upon - Learned counsel for respondents is of no help in singular facts of the case at hand - Court dealt with issue of disinvestment policy of Government of India wherein service conditions of the petitioners were protected under new management on disinvestment of Hotel, and therefore - Supreme Court declined to interfere with decision of Government whereas in the instant case at hand - Employment of petitioner who was appointed as a substantive employee has been brought to an end allegedly by virtue of a stipulation entered into between parties in the offer of appointment - Apparent on face of the record that facts of the case, as referred to and relied upon and one at hand are entirely different and distinguishable - Writ application succeeds and is hereby allowed – Application is dismissed
Aggrieved of the letter/order dated 30th April, 2013, terminating the contract of employment with further advise to relieve the petitioner on 29th July, 2013; the petitioner has instituted the present writ proceedings, praying for the following relief(s):
“(i) To issue an appropriate writ/order/direction quashing and setting aside the letter/order dated 30.4.2013 and restore the status quo ante with all consequential benefits with interest @ 18% per annum.
(ii) To issue an appropriate writ/order/direction quashing and setting aside the Clause (a) of Notice Period falling under Annexure-III of Letter of Appointment which empowers Respondent to terminate the service of the petitioner even after his confirmation, by giving three months notice.
(iii) Any other relief which this Hon'ble Court deem fit and proper in facts and circumstances of the case may also be passed in favour of petitioner.
(iv) Award cost of petition.”
2. Shorn off unnecessary details, the indispensable skeletal material facts necessary for appreciation of the controversy are that the petitioner was appointed in the Management Grade J-I, as a Team Member at it's Jaipur Office vide letter dated 11st August, 2008, by the respondent No.2. On promotion to Grade J-3 as 'Territory Sales Manager', his Annual compensation was enhanced from Rs. 2,00,000/-(Rupees Two lacs) to Rs.2,25,000/-(Rupees Two lacs Twenty Five Thousand), vide order dated 5th January, 2009. After review of the performance during probation, the petitioner was accorded confirmation vide communication dated 3rd September, 2009, in the services of the Organization w.e.f. 3rd March, 2009. Annual compensation was further enhanced, in view of the performance of the petitioner, for the financial year 2009-2010 and 2011-2012. However, the employment of the petitioner was suddenly put to an end vide order dated th April, 2013, w.e.f. 29th July, 2013; invoking Clause (a) under Annexure-III, which provided for a Notice Period.
3. Learned counsel for the petitioner Mr. Sunil Samdariya, reiterating the pleaded facts and grounds of the writ application, while assailing the impugned provision i.e. Clause (a) of Notice Period under Annexure-III of the Letter of Appointment, asserted that the condition as contemplated under Clause (a) of the offer of appointment, empowering the respondent-employer to terminate the service of a confirmed employee by serving three months notice is non-est, void and inoperative in the eye of law in view of the several pronouncements by the Hon'ble Apex Court of the land.
4. According to the learned counsel, no order terminating the service of a confirmed employee could have been passed, and therefore, the provision as contemplated under Clause (a) of the offer of appointment is patently unlawful, illegal and invalid, and therefore, deserves to be quashed and set aside on that count alone. The petitioner, who was appointed by the respondent-employer in the Management Grade J-I as a 'Team Member' at it's Jaipur Office vide letter dated 11th August, 2008, was accorded promotion to the Grade J-3 as 'Territory Sales Manager' and his Annual compensation was enhanced. Moreover, the services of the petitioner were confirmed vide letter dated 3rd September, 2009; thus, he acquired a substantive status, hence, the impugned order, terminating the employment of the petitioner, dated 30th April, 2013, is bad in the eye of law.
5. It is further urged that pari materia provisions have been struck down by the Hon'ble Apex Court of the land for such terms of contract are void being in violation to the mandate of Section 23 of the Contract Act, and therefore, the impugned action deserves to be quashed and set aside on that count alone.
6. Termination of a confirmed employee by an innocuous order amounts to removal/dismissal of an employee and cannot be effected without holding a regular departmental enquiry. Furthermore, principles of natural justice are to be complied with. Mere discontinuati
