High Court
Case Details
WP(C) 5302/2009 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY
Facts
By this application under Article 226 of the Constitution of India, the petition er has challenged the legality and validity of the letter dated 13.11.2009, issu ed by the Deputy Chief Commercial Manager/FM, NF Railway, Maligaon observing tha t further extension of Mokokchung Out-Agency in favour of the writ petitioner wa s not allowed by the NF Railway ’due to unsatisfactory service of the out agent’ . Consequently, the petitioner was asked to handover all money value books, tick ets, other books and forms supplied by the Railway to the Out Agency immediately . The case of the writ petitioner is that, initially by an agreement dated 16.11.2 004 she was settled with the Out Agency for a period of three years on certain t erms and conditions. She duly and completely performed the contract and in consi deration of the same, her contract was extended by another subsidiary contract e xecuted on 12.02.2008 with retrospective effect from 16.11.2007 for one year til l 15.11.2008. Prior to expiry of the said period of one year, the petitioner sub mitted representation before the authority either for further extension or for a fresh contract but no order was passed. However, the petitioner was allowed to continue the Out Agency without any formal contract. Ultimately on 13.11.2009 th at is nearly after one year more from the expiry of the period of final contract the impugned letter was issued. The case of the petitioner is that the ground m entioned in the impugned letter is not only incorrect but is also untenable inas much as such a stigma could not have been imposed on the petitioner without hold ing any enquiry and without affording any opportunity to the petitioner to place her defense. According to the writ petitioner, such an observation in the impug ned letter dated 13.11.2009 has civil consequences on her inasmuch as this obser vation can be used by any of his business rivals whenever and wherever the writ petitioner goes for getting a similar contract. The petitioner, therefore, has m ade a prayer in the writ petition for setting aside the said order and also for settlement of the Out Agency in her favour. By filing the affidavit-in-opposition to the writ petition, the Railway authorit y has supported its observation as to unsatisfactory service of the writ petitio ner and stated that after passing of the order dated 13.11.2009 a communication was made to the writ petitioner on 26.11.2009 informing her about the details of the irregularities committed by her and as such same was in substantial non-com pliance of the principles of natural justice. However, the learned standing coun sel of the Railway has fairly submitted that there was no prior proceeding befor e the impugned order was passed. The learned standing counsel also submits that there was no order for forfeiting the security deposited by the writ petitioner.
Legal Reasoning
t it is fact that NF railway allowed the petitioner to continue working as an ag ent of Mokokchung Out-Agency till the impugned order was passed on 13.11.2009 i. e. nearly one year more. During all these period, there was no whisper against t he present petitioner as to her shortcomings in service and/or misconduct. Rathe r the petitioner has made bold claim that her services received appreciation fro m the concerned authorities from time to time who paid visit to the Mokokchung O ut-Agency. Be that as it may the order dated 13.11.2009 whereby the agency of the petitione r has been put to an end being a punitive one it was incumbent on the NF Railway to abide by the principles of natural justice. It is settled law that any actio n contrary to the principles of natural justice is void ab initio and no order n eed be passed to render the same nullity. However, if the order itself is null a nd void the question arises whether the petitioner can be put back in the agency . It is also settled law that by a writ of mandamus parties cannot be compelled to enter into contract of service and the same is contrary to the spirit of Sect ion 14 of the Specific Relief Act 1963. The only relief the petitioner, therefor e, can derive as consequence of allowing of the writ petitioner is that the sai d stigmatic order that can be set aside removing the stigma imposed on her and c onsequently the petitioner shall be entitled to refund all her security deposits and other deposits if not already released.
Arguments
I have heard Mr. J. Roy, learned counsel for the petitioner and Mr. U. K. Nair, learned standing counsel of the NF Railway. After hearing the learned counsel for the parties and on perusal of the material s available on record, it appears that the order dated 13.11.2009, whereby the p etitioner was denied further extension of contract, is really a stigmatic one. H aving made a mention that unsatisfactory service was the real reason for not gra nting further extension to the petitioner, it was incumbent upon the respondents to give adequate opportunity to the petitioner for placing her case for taking such an adverse decision. Fact remains that on 16.11.2004 the contract was initi ally entered into between the petitioner on the one hand and the NF Railway on t he other. The said contract came to an end on 15.11.2007 after regular expiry of term but even thereafter the same NF railway continued allowing the writ petiti oner to render services of Mokokchung Out-Agency. After allowing such extension without passing any formal order for a period of about three months, ultimately a formal subsidiary contract was executed on 13.02.2008 with retrospective effec t and the same also was allowed to complete its regular term of one year. The su bsidiary contract came to an end on 16.11.2008 pending prayer for further extens ion of the petitioner. Although, the NF railway did not pass any formal order ye
Decision
Accordingly, the writ petition is allowed. The impugned order dated 13.11.2009 i s set aside. The respondents are directed to release the security deposit and ot her securities of the petitioner within a period of one month from today if not already released. No order as to cost.