Calcutta High Court
Videsh Sanchar Nigam Limited vs Dipali Bandopadhyay on 16 December, 1993
Equivalent citations: (1994)2CALLT377(HC)
JUDGMENT Bhagabati Prosad Banerjee, J.
1. This appeal is against the judgement and order dated 24th September, 1992 passed by the learned trial Judge by which the learned trial Judge on the basis of a letter written by the writ petitioner-opposite party addressed to the learned Chief Justice of the court dated 29th April, 1992 granted relief to the opposite party. Kumari Dipali Bnadapadhyay instead of filing a formal writ application wrote a letter to the learned Chief Justice of the Court praying for relief against the alleged illegal termination of her service as a Hindi Typist in Videsh Sanchar Nigam Limited (referred to as V.S.N.L.) and that the said letter written by the petitioner-opposite party was specially assigned by the learned Chief Justice Shri N. P. Singh (As His Lordship then was) whereupon the learned trial Judge treated the said letter as a writ application and called upon the appellant to show-cause. The appellant also filed an affidavit-in-opposition dealing with the case made out in the said letter. The applicant also filed a rejoinder to the affidavit-in-opposition and thereafter on consideration of the entire facts and circumstances of the case the learned trial Judge held that the order of termination of her service in the manner it was done was illegal.
2. The fact of this case is that Kumari Dipali Bandopadhyay was duly appointed as a Hindi Typist on probation on 27th March, 1991 in V.S.N.L, which is a Government of India Undertaking at Calcutta after complying With the usual formalities. After completion of the probationary period, she was duly confirmed by the General Manager of the appellant by the following order :
"Kumari Dipali Bandopadhyay, Hindi Typist, Videsh Sanchar Nigam Limited, Calcutta Branch, who has completed six months probation period in the grade in Videsh Sanchar Nigam Ltd., hereby confirmed in the grade of Hindi Typist."
After a few months, by the letter dt. 10th March, 1992 the service of the petitioner-opposite party was terminated by the following office order :
"Kumari Dipali Bandopadhyay was appointed as Hindi Typist in VSNL, Calcutta Centre vide this office Memo No. CA-23/17/91-EST 19 dated 27.03.1991.
As per the Clause (ii), para (6) of the terms and condition the offer of appointment letter No. CA-23/17/19-EST/325 dated 14.03.1991, I have been now directed to terminate the service of Kum. Dipali Bandopadhyay with immediate effect consequently her service as Hindi Typist is discontinued from Calcutta Centre with effect from 10.03.1992 (Afternoon).
She is paid Rs. 4856/- (rupees four thousand eight hundred fifty six only) as terminal dues equivalent to three months salary on the basis of her current pay and allowances drawn till date."
In this connection, it may be mentioned that the letter offering appointment to the petitioner-opposite party dt. 14th March, 1991 contained a clause which is relevant for this purpose. The said clause is as follows :-
"(ii) On completion of probation :
Your appointment may be terminated at any time by giving three months' notice in writing. VSNL, however, reserves the right of terminating your services forthwith or before expiration of the stipulated period of notice of 3 months by making payment to you of the period of notice or unexpired portion thereof."
3. The case of the writ petitioner-opposite party was that her service was terminated after she had served only 11 months 14 days without any complaint against her and that as her service was found to be satisfactory by the authorities concerned, her service was duly confirmed. Thereafter, there was no bona fide reason or ground to terminate her service. The writ petitioner-opposite party passed B.A. Examination from the Calcutta University in 1986 and passed the Hindi 'Prathamik' examination in 1987 and thereafter, Hindi Prabesh examination in 1987. She also passed the Hindi Parichay Examination and Hindi Typewriting Examination in 1990 from the West Bengal Rashtrabhasa Prachar Samity. She also passed English type writing examination in 1990 from a Commercial College at Calcutta. She registered her name in the Employment Exchange in Salt Lake some time in June, 1987. Her appointment was made in a regular manner. She was interviewed by an Interview Board after her name was forwarded by the Employment Exchange. She appeared before the Interview Board and on merit she was selected and her appointment was made on the basis of selection.
4. Before the learned trial Judge the appellant took a stand that as the terms and conditions contained in the letter of appointment provided termination of service by giving 3 months notice in writing, no illegality was committed by resorting to that provision for termination. The learned trial Judge relying upon the decision of Supreme Court in the case of West Bengal State Electricity Board v. Deshbandhu Ghosh, wherein the question of termination of service o a permanent employee by serving three months' notice or salary was considered and the Supreme Court struck down Regulation 34 of W.B.S.E.B. Regulation observing that the same was a naked 'hire and fire' rule. The said rule was held to be arbitrary and the law is now well settled and is concluded by the decision of the Supreme Court. The learned trial Judge held that the order of termination of her service was illegal. A further stand was taken by the appellant before the learned trial Judge that even under the Industrial Disputes Act, the service of the writ Petitioner could have been terminated following the procedure laid down by that Act. But the learned trial Judge rejected the said contention. Before the learned trial Judge the appellant had taken a preliminary objection that a letter could not be treated as a formal writ application.
5. In this appeal Mr. Partha Sarathi Sengupta appearing with Mr. Arunava Ghosh contended that the said letter could not be treated to be writ application, as the principles of public interest litigation could not be invoked in case of individual dispute and in case a person is aggrieved, in that event the aggrieved person must file a formal writ application. The learned trial Judge rejected the contention raised by the appellant relying upon the observation made by the Supreme Court in the case of S.P. Gupta and Ors. v. The President of India and Ors. wherein it was observed that "It may, therefore, now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person is by reason of poverty, helplessness or disability or social or economic disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, on writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons." The learned trial Judge also relied on the observation made by the Supreme Court in the case of People's Union for Democratic Rights and Ors. v. Union of India and Ors. wherein it was observed that "Public interest litigation was not for the purpose of enforcing the right of one individual against another as in the case of an ordinary litigation, but was intended to promote and vindicate the public interest which demanded violations of constitutional or legal rights of a large numbers of people." The learned trial Judge also relied on the observation made by the Supreme Court in case of Bandhua Mukti Morcha v. Union of India and Ors. wherein it was observed : "I see grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility, can, without anything more be attributed to the communication. There is good reason for the insistance on a document being set out in a form, or accompanied by evidence, indicating that the allegations made in it are made with a sense of responsibility by a person who has taken due care and caution to verify those allegations before making them...............while this Court has readily acted upon letters and telegrams, in the past, there is need to insist now on an appropriate verification of the petition or other communication before acting on it. As I have observed earlier, there may be exceptional circmstances which may justify a waiver of the rule. For example, when the babeas corpus jurisdiction of the Court is invoked. For in all cases of illegal detention there is no doubt that the Court must act with speed and readiness. Or when the authorship of the communication is impeccable and unquestionable that the authority or its contents may reasonably be accepted prima facie until rebutted. It will always be a matter for the Court to decide, on what petition will it require verification and when will it waive the rule."
5a. On behalf of the appellant it was contended before us that the learned trial Judge was wrong in granting relief on the basis of the letter and not on the basis of a writ petition. Secondly, it was submitted that there was irregularity in the process of appointment. With regard to the point of maintainability is concerned the letter written by the petitioner was treated by the learned Chief Justice of this Court as a writ petition and assigned the said letter treating the same as writ petition for its disposal by the learned trial Judge. In the said letter it was, inter alia, stated by the writ petitioner that "I am a helpless young girl of 27 years age and I have no income at present and my parents are too old. I have no source to move against this illegal termination order in the Court of Law for Justice."............" That I have no age to secure a Govt. service as my employment exchange registration card has already been lapsed due to appointment in Videsh Sanchar Nigam Ltd., Calcutta." The said letter was treated as a writ application and the learned trial Judge directed the VSNL. The record of the case also produced before the learned trial Judge which was examined for the purpose of proper adjudication of the subject matter in dispute.
6. Mr. Sengupta submitted that in the facts and circumstances of the case, the learned trial Judge was wrong in treating a letter as a writ application and that such a course of action was not only illegal but the same also had prejudiced the appellant inasmuch as the appellant was not in a position to know what was the case and what was the ground of challenge. Mr. Sengupta further submitted that there was serious irregularity in the appointment of the writ petitioner-opposite party, as such she was not entitled to any relief.
7. On behalf of the respondent-writ petitioner it was submitted that in the facts and circumstances of the case, the learned trial Judge was right in entertaining the letter for the purpose of granting relief under Article 226 of the Constitution of India.
7a. After Considering the rival contention of the parties and after going through the records of this case, we are of the view that normally under the rules framed under Article 226 of the Constitution of India by this Court it appears to us that the power of the High Court to grant relief has not been made dependent on filing a writ application by persons aggrieved. In this connection, if a comparision is made with regard to the position as prevailing in England, it would be evident in U.K. that the power is conferred under Order 53 rule I which provides the power with the court to issue order of Mandamus, prohibition or Certiorari. The relevant portion for Order 53 in England is summarised below :
"(i) an application for
(a) an Order of Mandamus, Prohibition or Certiorari or
(b) an injunction under Section 30 of the Act, restraining a person from acting in any office in which he is entitled to act, shall be 1 made by way of an application for judicial review in accordance with the provisions of this Order."
8. Sub-rule 2 of Order 53 provides" an application for declaration or an injunction not being an injunction as mentioned in paragraph (i) (b) may be made by way of an application for judicial review, and on such application the Court may grant the declaration or injunction claimed if it considers that, having regard to--
(a) the nature of the matters in respect of which relief may be granted by way of an order of Mandamus, prohibition or Certiorari;
(b) the nature of the persons or bodies against whom relief may be granted by way of such order and
(c) all the circumstances the case, it would be just and convenient for the declaration or injunction to be granted on an application for,, judicial. review." Supreme Court in the case of Owners and parties interested in N.V. "Vali Pero" v. Fernandeo Lopex and Ors., held that "Rules of procedure are not by themselves an end but the means to achieve the ends of justice and are not hurdles to obstruct the pathway to justice. Construction of the rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myraid situations, all of which cannot be envisaged, acting within the limits of the permissible construction must be preferred to that which is rigid and negatives the cause of justice." and also held that" Procedure is meant to subserve and not rule the cause of justice." and "This is the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system." In Chinnamal v. R. Arunmughan, (1991) 1 SCC 513. Supreme Court also held that Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The law of procedure should be so construed as to render justice wherever reasonably possible." If a party who is in a distress and who is not in a position to get assistance of a lawyer and as the legal aid system is not sufficient in our country, the court should not take a technical view of the matter but should look into the grievance of the citizen to examine whether a prima facie case has been made out which calls for an intervention by the writ court. In the instant case, Supreme Court in the case of Bandhua Mukti Morcha v. Union of India and Ors. considered this aspect of the matter and this case has an authority for the proposition that the court can readily act upon letters and telegram for the purpose of granting of extraordinary relief. In the instant case, the appellant filed a detailed affidavit-in-opposition and that the respondents placed all their cards before the court. The records were produced. The writ petitioner opposite party has also filed a rejoinder in detail and the learned trial Judge on consideration of all the aspect of the matter has disposed of the writ application and under such circumstances, it cannot be said that procedure adopted by the learned trial Judge was illegal and/or any prejudice had been caused to the appellant in the matter of understanding the case of the writ petitioner opp. party and/or defending the case of the appellant before the learned trial Judge. If no prejudice has been caused to the appellant that cannot give rise to a cause of action for making any grievance in appeal. With regard to the merits of the case, admittedly the appellant was appointed after going through a process of selection and that she was rightly or wrongly confirmed by the competent authority. Question whether service of a person who was holding a permanent post could be terminated relying upon a provision which authorised the employer to terminate the service of a permanent employee by three months' notice came up for consideration before the Supreme Court and the Supreme Court held that such provision which enables the employer to terminate service of a permanent employee by serving three months' notice or on payment of salaries of corresponding period of 3 months in lieu thereof was held to be illegal and violative of Article 14 of the Constitution of India. This principle was laid down by the Supreme Court in the case of West Bengal State Electricity Board v. Deshbandhu Ghosh, ; Central Inland Water Transport Corporation Ltd. v. Brajanath Ganguly, ; O.P. Bhadra v. Indian Tourism Development Corporation Ltd. . Delhi Transport Undertaking v. Balbir Saren Goel, AIR 1991 SC 836.
9. The law is now well settled that relying on (such provision the service of a permanent employee could not be terminated simply by giving 3 months' notice or payment in lieu thereof. Accordingly, we are of the view that the learned trial Judge has not committed any error which calls for any intervention in this appeal. With regard to the contention of the appellant that there was irregularity in the process of appointment of the writ petitioner opposite party is a matter which could not be allowed to be raised in view of the fact that the service was terminated by invoking a specific clause in the contract of service providing power for termination by giving 3 months' notice or pay. If the appellant's case is that the appointment was irregular and/or illegal in that event the only course left to them is to take different course of action and when service has been terminated by following a particular course of action, the appointment cannot come forward to defend that order on any ground as it is firmly established that the validity of a public order publicly made has to be sustained on the basis of the language used in the order and that the authorities concerned cannot be allowed to defend that order on other grounds and on other materials on the basis of which action was not originally taken. Accordingly, we cannot allow the appellant to make out a case inconsistent with and contrary to the case made out and on the basis of which the service was terminated. In support of this principles reference may be made to the decision of the Supreme Court in the case of Commissioner of Police, Bombay v. Gobardhan Das, AIR 1952 SC 18; S.L. Kapoor v. Jagmohan, . The opposite-party was not given any opportunity to know the grounds and reasons other than declared in the notice terminating the service. If the action was to be taken on the ground of illegality in the appointment process in that event, it was incumbent upon the appellant to issue a show-cause notice and hold an enquiry after giving her an opportunity of hearing, but this course of action was not followed.
Accordingly, we do not find any reason to interfere with the order passed by the learned Trial Judge and accordingly, the appeal is dismissed with costs assessed at 20 G.Ms. Asok Kumar Chakravarty, J.
10. I agree.