Delhi High Court
Arun Kumar Bali vs Government Of National Capital ... on 24 January, 2002
Equivalent citations: 2002VAD(DELHI)475, 96(2002)DLT699, [2002(93)FLR625], 2003(1)SLJ54(DELHI)
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner was employed as a Welfare Officer with respondent No. 4 on 1.3.1993 and the services of the petitioner were terminated. The petitioner is aggrieved by the termination of his services.
2. The termination letter is dated 22.11.2001 (Annexure P2) which is a simpliciter termination in terms of para 5 of the letter of appointment dated 2.3.1993. Para 5 of the letter of appointment 2.3.1993 is as under :
"After confirmation, two months' notice on either side shall be required for the termination of this arrangement. The Management can, however, dispense with your services any time by paying you two months salary in lieu of notice."
3. In view of the aforesaid fact there is no doubt that termination is in terms of the appointment letter. Learned counsel for the petitioner, however, contended that the terms of his appointment cannot over ride the provisions of the Factories Act 1948 and the rules made there under being the Delhi Factories Rules 1956. Learned counsel for the petitioner drew my attention to the provisions of Rule 76-A dealing with welfare officers. The relevant Sub-rule 4B of the said rule is as under :
"(b) The conditions of service of a Welfare Officer shall be the same as of other members of the staff of corresponding status in the factory, provided that no punishment shall be inflicted on a Welfare Officer without obtaining the prior approval of the Chief Commissioner."
4. Thus the learned counsel for the petitioner contended that the services could not be terminated except in accordance with the said sub-rule after obtaining the prior approval of the Chief Commissioner.
5. Learned senior counsel for respondent on the other hand has referred to the judgment of learned Single Judge of this Court in CW 1396/1988 decided on 11.3.1998 S.N. Saxena v. D.C.M. where this very question has been considered. In the light of dictum laid down by the Supreme court in the case of Associated Cement Companies Ltd. v. P.N. Sharma and Anr., .
6. In S.N. Saxena case (Supra) an issue was raised that though the order of termination was a simpliciter order of discharge, the same was only a camouflage and on a proper enquiry, it will be found that the dismissal amounts to a punishment. The learned Single Judge referred to the observations of the Supreme Court on the interpretation of the rules and came to the conclusion that if a welfare officer is dismissed without applying for concurrence, he may make an appeal but only in a case where a punishment has been imposed. If termination is in terms of the contract of employment. then such a welfare officer cannot make any grievance. The conclusion of the learned Single Judge in para '9' is as under :
"9. The provision in Clause 4 would empower the management to dispense giving three months' notice as wad done by the employer. Therefore, when the contract of employment provides that the service of the employee could be dispensed with the petitioner cannot be heard to contend that the first respondent lacked power to pass the order. It is on this point the dictum laid down by the Supreme Court would apply to the facts of this case."
7. It is further contended by learned counsel for the respondent that against the said decision Letters Patent Appeal was preferred being LPA No. 522/1998 which was dismissed vide order dated 11.7.2001 agreeing with the interpretation of the learned Single Judge of Sub-rule 4 B of Rule 76-A of the Delhi Factories Rules, 1950. The aforesaid decisions are based on the ratio laid down by the Supreme Court in Associated Cement Companies Ltd.'s case (supra) as under:
"Mr. Setalvad, however, is right in contending that the appeal preferred by respondent No. 1 before respondent No. 2 was incompetent. Rule 6(6) no doubt enables a Welfare Officer to make an appeal to the State Government if punishment has been imposed upon him contrary to the requirements of the proviso to Rule 6(3), without obtaining the concurrence of the Labour Commissioner. The scheme of the relevant Rules appears to be that if the management applies for concurrence, and the concurrence is not given by the Labour Commissioner, the management can appeal under Rule 6(5). If the concurrence is given, of if a Welfare Officer is dismissed without applying for concurrence, he may make an appeal under Rule 6(6); but before such an appeal can be competent, it must appear that the punishment mentioned in Clause (v) of Sub-rule (3) of Rule has been imposed upon him. In the present case, it is difficult to hold that any such punishment has been imposed upon respondent No. 1 All that the appellant has done in the respondent No. 1 by virtue of Clause 4 of his terms of appointment. When respondent No. 1 was appointed a Welfare Officer by the appellant, the terms of his fare officer by the appellant, the terms of his employment were communicated to him by a letter dated March 2, 1956. Clause 4 of this communication expressly provided that during the period of probation, the appellant could terminated respondent No. 1's services without notice, and after confirmation, with one month's notice or one month's salary in lieu of notice. The order terminating his services specifically refers to an earlier letter addressed to him on September 23, 1961. In this letter, the appellant expressly informed respondent No. 1 that if he did not proceed to Kymore Cement Works within the time allowed to him, his services would stand terminated from september 26, 1961, and he would be paid his salary up to the 25th September, 1961, as well as one month's salary in lieu of notice and other dues as per Company's rules. It is thus clear that in terminating the services of respondent No. 1, the appellant was merely exercising its right to put an end to respondent No. 1's services with one month's salary in lieu of notice; and such an order cannot be said to amount to any punishment at all; it is na order of discharge served by the employer on his employee strictly within the terms of the employee's conditions of service. There is not doubt that when Rule 6(3)(v) refers to dismissal or termination of service in any other manner, it takes in dismissal or termination of service in any other manner, it takes in dismissal or termination of service which is in the nature of a punitive termination of service. Rule 6(3) makes it clear that Clauses (1) to (v) refer to punishments which could be imposed on Welfare Officers by which could be imposed on Welfare Officers by the management; and so, before Rule 6(3)(v) can be invoked by respondent No. 1, it must be shown that the termination of his services was in the nature of a punishment. The termination of respondent No. 1's services in terms of Clause 4 of his conditions of service is no mere than a discharge, and as such is not a punishment; and so, it is outside Rule 6(3) altogether. Therefore, we are satisfied that the appeal preferred by respondent No. 1 before respondent No. 2 was not competent under Rule 6(6)."
8. In view of the aforesaid decisions of the learned Single Judge, of Division Bench and of the Supreme Court, this issue does not remain open to be agitated by the petitioner.
9. Learned counsel for the petitioner has already made a grievance that though initially the services of the petitioner were dispensed with since it was claimed that number of persons working have been reduced under 500, Subsequently an advertisement was issued on 17th January, 2002 in the Hindustan Times (annexure P5) in which the post of Welfare Officer has been advertised. It is also contended that the plea of respondent No. 4 that the workers were below 500 have been found to be false by the concerned authorities. Assuming the contention of the petitioner is correct that the whole process was only a ruse to get rid of petitioner, the fact remains that eh order of termination is only a simpliciter order of termination and in view of the judgments discussed above, the petitioner would not be entitled to any relief.
10. In case the respondents have incorrectly submitted that the number of persons have been reduced to under 500, it, is always open to respondent Nos. 1 to 3 to take appropriate action in accordance with law.
11. In view of the aforesaid the writ petition is dismissed leaving it open to respondents 1 to 3 to proceed in accordance with law against respondent No. 4 in case any violation of the Factories Act or the Factories Rule is found.
12. Needless to say that the decision in the present case will not affect the right of the petitioner to avail of any remedy before the Civil Court in accordance with law.