Ashok Kumar & Ors. v. Bihar State Beverages Corporation Ltd. & Ors.

For the Petitioner/s : Mr. Raghib Ahsan, Sr. Advocate Mr. Arif Imam, Advocate Mr. Deepak Kumar Singh, Advocate For the Respondent/s : Mr. Lalit Kishore, Sr. Advocate, Mr. Girijesh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 5 08-01-2013 The petitioners have approached this Court under Article 226 of the Constitution of India assailing the correctness and validity of the office order contained in Memo No. 2612 dated

28.9.2012 passed by the Managing Director of Bihar State Beverages Corporation Ltd. Patna (hereinafter referred to as ‘respondent corporation’), as contained in Aannexur-1 to the writ petition, whereby services of the petitioners under the respondent Corporation have been terminated with immediate effect. 2 Patna High Court CWJC No.21075 of 2012 (5) dt.08-01-2013

2. It is not under dispute that both the petitioners are ex-servicemen. In response to an advertisement dated

18.8.2006 (Annexure-2) issued by the respondent Corporation, the petitioners applied for their appointment against the posts advertised. As per the advertisement, the vacancies were required to be filled up either by way of deputation or by way of appointment on contract basis. Retired employees were eligible to apply for the posts so advertised. As per the terms of the aforesaid advertisement the appointments were to be made for one year and on assessment of service, period of service could have been extended or reduced.

3. It is admitted case of the parties that by an order dated 18.9.2006 issued by the respondent Managing Director of the Corporation altogether 19 persons, including petitioner no.1, were appointed on different posts. The petitioner No.1 was appointed on the post of Accounts clerk. In the order of appointment (Annexure-3) the period of appointment on contract was not specified rather the appointment was made till further order. The name of petitioner no.1 is at Serial No. 19 of the aforesaid order dated 18.9.2006. On the basis of the same selection process, petitioner no.2 was also appointed on the post of Assistant vide order contained in Memo No. 282 dated 11.10.2006 issued by the respondent Managing Director, as contained in Annexure 3/A to the writ petition. It is also the admitted case of the parties that pursuant to their appointments the petitioners joined their posts and they had been discharging their duties against the posts for which they were appointed. It is relevant to mention here that as per the terms of advertisement, appointment was to be made on contract basis for a period of one year, but 3 Patna High Court CWJC No.21075 of 2012 (5) dt.08-01-2013 while issuing orders of appointment the period of appointment was not specified by the respondent Managing Director. It is the case of the petitioners that other employees who were appointed along with them under the same selection process have been allowed to continue in their services since the date of their appointment in the year 2006.

4. Learned counsel appearing on behalf of the petitioners submits that since the petitioners made a demand for better service condition, they have been victimized and by the impugned order dated 28.9.2012 ( Aannexure-1) their services have been arbitrarily terminated without issuing any show cause notice to them, and by a most cryptic and non-speaking order. It is further submitted that since similarly situate other employees are still working under the respondent Corporation, the petitioners are also entitled to continue in their services, and if the Corporation at all wants to remove them from service, then they are entitled to have an opportunity of hearing. In support of his above contention, the learned counsel has placed reliance on a judgment of the Hon’ble Apex Court in the case of Mohd. Abdul Kadir and Another Vs. Director General of Police, Assam and Others [ (2009) 6 SCC 611]

5. Learned counsel appearing on behalf of the respondents has filed a counter affidavit and has contested the claim made on behalf of the petitioners. It is the case of the respondents that in the meeting of the Board of Directors held on

25.9.2012, it was decided to terminate the services of both the petitioners with effect from the date of issue of such an order. It is contended by the learned counsel that in compliance of the resolution of the Board of Directors, the impugned order dated 4 Patna High Court CWJC No.21075 of 2012 (5) dt.08-01-2013

28.9.2012 has been issued by the respondent Managing Director terminating the services of the petitioners with immediate effect. Learned counsel appearing on behalf of the respondents has very fairly conceded that before issuance of the impugned order no show cause notice was issued to the petitioners. However, it is submitted that since the appointment of the petitioners was on contract basis, therefore, opportunity of hearing was not required to be given to them. It is also contended that in the factual background of the case, the petitioners cannot claim any benefits under Article 311 of the Constitution of India. In support of his above contention, he has placed reliance on the judgments of the Hon’ble Apex Court as also of this Court in the cases of Parshotam Lal Dhingra Vs. Union of Indian [ AIR 1958 SC 36], State of Orissa Vs. Ram Chandra Dev [ AIR 1964 SC 685], State of Punjab and Others Vs. Surinder Kumar and Ors.[ (1992)1 SCC 489], Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and Ors.[ (2006) 4 SCC 1] and Neetu Kumari Vs. The State of Bihar & Ors. [ 2011 (4) PLJR 20]. Besides the aforesaid judgments, he has placed reliance on some other unreported judgments of this Court also.

6. After having heard the parties and on consideration of materials available on the record, this Court is of the opinion that this matter can be disposed of on a very short question. Admittedly, the petitioners were appointed on contractual basis in the year 2006 vide orders contained in Annexures- 3 and 3/A. From the averments made in Annexures- 3 and 3/A it is apparent that the period of appointment has not been specified and the appointments were made till further orders. It is also not in dispute that since 2006 pursuant to the appointments 5 Patna High Court CWJC No.21075 of 2012 (5) dt.08-01-2013 the petitioners have been working on their respective posts. From the impugned order vide Annexure-1, this Court does not find as to what was the reason for such a sudden termination of the services of the petitioners. If the termination was on the ground that the term of contract was over, then that could have been indicated in the impugned order vide Annexure-1. If the services of the petitioners were not found satisfactory, then that could have also been indicated in the order contained in Annexure-1. Both the things are completely missing from the impugned order as contained in Annexure-1. This Court is of the opinion that since the petitioners along with other employees were appointed under the same selection process on different dates and if other employees are being allowed to continue in their services, then the petitioners have legitimate expectation that they shall also be allowed to continue their services. If the respondent Corporation still wanted to get rid of these petitioners for any valid reason, then one opportunity of hearing ought to have been given to them and rules of natural justice should have been followed. But, admittedly, without giving any opportunity of hearing and following the rules of natural justice, the impugned order of termination has been passed by the respondent Managing Director, which cannot be sustained in the eye of law.

7. For the reasons recorded above, this Court is inclined to set aside the impugned order dated 28.9.2012 (Annexure-1) and remit the matter back to respondent no.2 for passing a fresh order in accordance with law, after giving an opportunity of hearing the petitioners. It is ordered accordingly.

8. Till the matter is finally disposed of afresh, 6 Patna High Court CWJC No.21075 of 2012 (5) dt.08-01-2013 the petitioners shall stand reinstated in service of the respondent Corporation from the date of their termination and shall be entitled to their salary and other admissible allowances.

9. The application stands finally disposed of with the directions and observations made above. Kanth/- (Birendra Prasad Verma, J)