High Court
Case Details
WP(C) 6235/2011 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. P.J. Phukan, learned counsel for the petitioner and Mr. J. Roy, learne d counsel assisted by Mr. T. Das, learned counsel for the Assam Tea Corporation Limited. 2. Challenge made in this writ petition is to the order dated 3.12.2011 pas sed by the Chairman and Managing Director, Assam Tea Corporation Limited termina ting the service of the petitioner w.e.f. 15.12.2011. 3. Case of the petitioner is that he had earlier served as Assistant Manage r in one of the tea estates belonging to the Assam Tea Corporation Limited (Corp oration). He had submitted resignation on 22.08.2003, which was accepted by the Management and was released from service accordingly. 4. On an application filed by the petitioner dated 19.02.2005, petitioner w as offered the post of Manager under the Corporation on purely temporary basis. As per the offer of appointment dated 22.2.2005, it was stated that continuance of petitioner’s service would depend upon his performance as per terms and condi tions mentioned in the offer of appointment. Petitioner accepted the offer and j oined as Manager. By the impugned order dated 03.12.2011, service of the petitio ner was terminated on the ground of unsatisfactory performance. Aggrieved, petitioner has preferred the present writ petition. 5. 6. Contention of the petitioner is that no notice was issued to him and the re was also no departmental proceeding preceding the termination order. There be ing violation of the principles of natural justice, impugned termination order i s illegal and non est in law. 7. me directed the respondents not to implement the termination order. 8. Respondent Nos. 2 and 3 have filed common affidavit. Stand taken in the said affidavit is that the present engagement of the petitioner was on purely te mporary basis. His performance was assessed by the Management and was found to b e not at all satisfactory. Corporation is presently facing a difficult situation and retaining the petitioner in his temporary engagement would not be fruitful for the Corporation. Since the engagement was on temporary nature, no notice was This Court by order dated 09.12.2011 had issued notice and in the meanti required to be issued before termination.
Legal Reasoning
9. Though no reply has been filed by the petitioner, he has however, filed an affidavit on 15.12.2011 to place on record certain documents. Petitioner has stated that he is serving in the Corporation with dedication and devotion and th e plea taken by the respondents that his performance was not satisfactory is not correct. Petitioner has also alleged that he has been singled out and discrimin ated against because he had taken up certain issues with the Management while se rving as Manager. Short point for consideration is in view of the nature of engagement of 10. the petitioner, whether he was required to be put on notice before termination f rom service. 11. Though the offer of appointment dated 22.2.2005 states that appointment of the petitioner was on purely temporary basis, a careful perusal of the terms and conditions mentioned in the said offer of appointment would make it clear th at there was some element of performance attached to the appointment of the peti tioner. Offer of appointment dated 22.2.2005 reads as under:- (cid:28)Ref. No. ATC/AM/2005/52 Mr. Tapan Khargharia, Tostee Neewas Senduriali, R.G. Baruah Road, Guwahati-24. Dated:22nd FEBRUARY’05 Sub : Appointment Ref : Your application dated 19th February’2005. Sir, We have pleasure in offering you the post of a Manager under Assam Tea C orporation Ltd. on purely temporary basis and continuance of your service will s Salary : Your initial basic pay will be Rs. 13425.00 p.m. in the scale o Dearness Allowance : Will be admissible as per Corporation’s rules. Provident Fund : It will be obligatory on your part to become a member o olely depend on your performance under following terms and conditions. 1. f pay of Rs. 9725-325-11025-13025-400-14625-475-15100 p.m. 2. 3. f the Corporation’s Provident Fund Scheme. 4. Accommodation : The Corporation will provide free furnished accommodatio n. The use of the furnished accommodation will be available so long as you are p osted in the Estate and will be required to vacate this premises as soon as you are transferred or your employment ceases with the Corporation. 5. Helper : You will be entitled to the following helpers to look after the Corporation’s property occupied by you. Night Chowkidar-1, Day Chowkidar-1, Malis-2, Sweeper-1, Another 2 (two) helper. 6. Leave : One month’s leave for each complete year of service on f ull pay will be allowed at a time convenient to management. 7. Transferability : At the absolute discretion of the management y ou may be transferred to any garden or office of the corporation as may be decid ed by the corporation. Re-imbursement of cost of such transfer will be governed by the rules of the corporation. 8. Retirement : You will retire on attaining 58 years of age or 30 years of service which is earlier. You will, however the liable to premature ret irement, if you are found medically unfit or otherwise unsuitable to carry out d uties assigned to you. 9. Loyalty & Secrecy : You will not at any time either during your employment or thereafter, except in the proper discharge of your duties, divulge to any person whomsoever and will use your best endeavor to present the publica tion or disclosure or any trade secrete or any information concerning the busine ss of the corporation or any of its dealing transactions or affairs which will c ome to your knowledge. During the tenure of your service you will be re quired to discharge your duties with honesty and diligence. Should you fail to d ischarge your duties satisfactorily or found guilty of any misconduct you will b e subjected to disciplinary action as per laid down provisions of the service re gulations of the corporation. 10. Posting : The place of your posting will be intimated separately . If you are agreeable to accept this appointment on the t erms and conditions mentioned herein above, please signify your acceptance by si gning the duplicate copy of this letter and return to us. (cid:29) As already noticed, petitioner had accepted the offer of appointment and joined in his temporary engagement. Importance of notice or adhering to the principles of natural justice wh 12. ile taking adverse action needs no re-statement. It is a salutary principle aime d at eliminating arbitrariness and unreasonableness in the decision making proce ss. Though the learned counsel for the petitioner has contended that petitio 13. ner would be entitled to the procedural protection under the service regulations of the Corporation, particularly in view of Regulation 10 thereof which provide s that temporary appointment in the Corporation should not be for a period excee ding one year, as well as under Article 311 of the Constitution of India, this C ourt is of the view that considering the temporary nature of engagement of the p etitioner, such procedural protection may not be available to the petitioner. Mo reover, petitioner is neither a member of the civil service of the State nor hol ds a civil post under the State. 14. However, keeping in view the general principles of natural justice and f air play, more particularly when termination is on the ground of rendering unsat isfactory service, I am of the view that petitioner was entitled atleast to a no tice before termination which would have enabled him to put forward his version. Failure to do so have vitiated the impugned order dated 3.12.2011. 15. Accordingly, impugned order dated 3.12.2011 is hereby set aside and quas hed. However, respondent Corporation would be at liberty to initiate fresh steps in accordance with law, if so advised. 16.