Punjab-Haryana High Court
Smt. Kamlesh Kumari vs State Of Haryana on 7 March, 2001
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT Mehtab S. Gill, J.
1. Learned counsel for the petitioner has prayed for issuing of a writ in the nature of mandamus to set aside the order dated November 4, 2000 (Annexure P-10) passed by the Managing Director, the Meham Co-operative Sugar Mills Ltd., Meham District Rohtak (respondent No. 2) (hereinafter referred to as "the Sugar Mill").
2. The petitioner has averred that the management and control of the Sugar Mill is through its Managing Director, who is a H.C.S. officer of the Government of Haryana. The petitioner has averred that she was ap-
pointed as a Cook on a class IV post in the pay scale of Rs. 1050-1600 vide order dated February 11, 1993. The appointment order is annexed with the writ peti-tion as Annexure P-1. The petitioner states that her services are governed by the Haryana Co-operative Department Head Office and Sub-offices (Group-D) Service Rules 1991. She had completed more than 6 years of service in July, 2000. After completion of 6 years of service, she requested the management to promote her to the post of Clerk as she belongs to Scheduled Caste category and has passed B.A. (Part II) examination and as such is eligible to be promoted as a Clerk as per the reservation policy of the Government of Haryana. A copy of the certificate of examination of B.A. (Part-II) and a copy of the certificate that she belongs to reserved category are attached with the writ petition as Annexures P-2 and P-3. The petitioner was denied promotion to the post of Clerk and thus, she filed a Civil Writ Petition No. 9099 of 2000 in this court. The following orders were passed in the said writ petition :
"Without going into the merits of this case, we dispose of this writ petition by directing respondent No. 1 to take a decision on the representations dated January 27, 2000 and dated February 23, 2000 (copies Annexures P-2 and P-7 respectively) made by the petitioner within a period of two months of the receipt of this order from this Court or production of a certified copy thereof by the petitioner, whichever is earlier. Respondent No. 1 is also directed to pass a speaking order on the representation and convey the same to the petitioner as early as possible. Dated July 19, 2000 Sd/-
S.S. Sudhalkar, J.
Sd/-
Mehtab S. Gill, J.
3. In the writ petition No. 9099 of 2000 the Managing Director of the Sugar Mill (respondent No. 2) was directed to pass a speaking order on the representation of the petitioner. A certified copy of the order passed in the above said writ petition was delivered on July 31, 2000 in the office of Managing Director (respondent No. 2). But instead of passing a speaking order, the said respondent No. 2 requested the Registrar of this Court as well as the petitioner to submit copies of the representation dated January 27, 2000 ana February 23, 2000 which were attached with Civil Writ Petition No. 9099 of 2000 as Annexures P-2 and P-7. The petitioner, on receiving copy of the letter, submitted copies of the representations on August 30, 2000, a copy of which is annexed with the writ petition as Annexure P-6. The Managing Director of the Sugar Mill (respondent No. 2) instead of deciding the representations issued show cause notice to the petitioner on September 12, 2000 slating therein that the experience certificate submitted by her in 1993 at the time of her initial appointment was found to be false. A copy of the show cause notice is attached With the writ petition as An-
nexure P-7. The petitioner replied to the show cause notice on September 15, 2000 mentioning therein that the experience certificate issued by Jangir Hotel is absolutely correct and a genuine one and further stating that the verification made by the management is from a hotel where the petitioner never worked. She rather had worked with Shri Jangir at his house. This certificate also showed that she had worked at the residence of the owner of Jangir Hotel, i.e., Shri Jangir himself. She further averred that the verification made by the officials of Sugar Mill was totally wrong and made from wrong quarters. Copies of the reply and the experience certificate are attached with the writ petition as Annexures P-8 and P-9. Another letter dated September 27, 2000 was received from respondent No. 2 in which the petitioner was informed that she should appear in person before the Managing Director as the explanation submitted by her to the show cause notice was not satisfactory. The petitioner appeared before the Managing Director on November 2, 2000 and again submitted a reply wherein it had been reiterated that the verification done by the office of the Managing Director was wrong and they had, instead of enquiring from Shri Jangir," the owner of Jangir Hotel, opposite Old Bus Stand, Hansi, rather enquired about her from Jangir Meat Corner Amrtisaria, Mochian Wali Gali. Again she reiterated that she had worked at the residence of one Jangir, who was running a hotel in the name of Jangir Hotel near Old Bus Stand Hansi. Further she stated that this hotel has now been closed and that in its place, a shop in the name of "Ram Kishan and Sons" is in existence. The experience certificate was issued under the signatures of Jangira and this certificate is original and signed by the owner of the Jangir Hotel. The petitioner received another letter dated November 4, 2000 from the office of respondent No. 2 whereby it was Intimated that the petitioner's service has been terminated, as she failed to establish the genuineness of the experience certificate. The termination letter dated November 4, 2000 is attached with the writ petition as Annexure P-10. It is this order which is under challenge.
4. Notice of motion was issued.
5. Written statement was field by the respondents wherein they have reiterated that the verification was done properly and the experience certificate submitted by the petitioner was a false document.
6. I have heard learned counsel for the petitioner and the respondents.
7. Learned counsel for the respondents at the very outset pleaded that this Court does not have any jurisdiction as the respondents do not come within the definition of State and thus, the writ jurisdiction does not lie against them. 1 do not agree with this proposition as the Apex Court has already decided the point in issue in the case of Shri Anadi Mukta Sadguru Shree Muk-tajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, A.I.R. 1989 Supreme Court 1607, wherein it has been held as under :-
"Constitution of India, Articles 226 - Mandamus - Issue of - Not confined to statutory authorities and instrumentalities of State - Can be issued to any other person or authority performing public duty - Duty need not be imposed by statute - University revising pay scale - Public trust running college can be directed to pay it."
8. Learned counsel for the respondents has laid a lot of stress that the petitioner should have availed an alternative remedy of approaching the Labour Court first and then she should have come to this Court. In Malik Singh, Chairman, Karukshetra Central Cooperative Bank Ltd. v. The State of Haryana, 1989(5) S.L.R. 455, a Division Bench of this Court has held as under :-
"Constitution of India, Article 226 - Alternative remedy - Termination of service - Violation of Common Cadre Rules - Alternative remedy to approach the Labour Court in order to seek relief against the termination of services available - Petitioners have a right to seek protection under Industrial Disputes Act and also compaign of violation of common Cadre Rules when the Government order nullifying the selections made by Administrative Committee is upheld - Neither just nor proper to relegate the petitioner to the alternative remedy to approach the Labour Court for seeking relief."
9. Learned counsel for the petitioner has stated that the order passed terminating the services of the petitioner is mala fide and has been done with bias as she had asked respondent No. 2 that she be promoted to the post of Clerk. Learned counsel for the respondents rebutted this argument of the petitioner's counsel and has reiterated that the experience certificate submitted by the petitioner was a false and fake one and verification could have been done at this belated stage.
10. It is an admitted fact that the petitioner was appointed as a Class IV employee with the Sugar Mill. It has been further admitted that she belonged to Scheduled Caste category and had passed B.A. (Part-II) examination in April 1980. She was appointed as a Cook in February, 1993. It has been further admitted that the petitioner wanted to be appointed as a Clerk as she belongs to Scheduled Caste category and has passed B.A. (Part-II) examination and thus, is eligible to be pro-motedjassuch.
11. While appointing the petitioner in the year 1993 as a Cook, the experience certificate submitted is attached with the writ petition as Annexure P-9 which is dated January 31, 1993 and is signed by one Jangir, the owner of Jangir Hotel, Old Bus Stand, Hansi District Hisar. It is stated in the certificate that Smt. Kamlesh Kumari wife of Om Parkash was working in the house of Shri Jangir from June 26, 1988 to January 31, 1993 as a Cook. She had full knowledge of preparing every kind of dishes. She is very honest and she was being paid at the salary of Rs. 900/- per month. In Annexure P-8 dated September 15, 2000 and Annexure P-8/A dated October 11, 2000, the petitioner has stated that the enquiry made by the officials of Sugar Mill was from Jangir Hotel Amritsaria, Mochian wait Gali and not from the address given in experience certificate. This enquiry is made by the Sugar Mill (respondent No. 2) vide order dated September 8,2000 (Annexure R-3) where the Sub Divisional Officer (Civil)-cum-Managing Director has written a letter to the Manager, Jangir Hotel Hansi District Hisar, and deputed office Superintendent of the Sugar Mill to go to and make an enquiry. The said officer, aftermaking an enquiry submitted a report on September 9, 2000 (Annexure R-4 which is signed by the Cane Marketing Officer and the office Assistant, but it is not signed by the officer, who was directed to make an enquiry by the Sub Divisional Officer (Civil).
12. In the advertisement (Annexure R-2), which was issued for the post of a Cook, the words written therein are that "cooking experience is needed". The advertisement is reproduced as under :-"The Meham Cooperative Sugar Mills Ltd., Meham (Rothak) invites applications on plain paper giving details of bio-data for the following posts so as to reach the office of the Managing Director upto 15.11.1992. Incomplete application will not be entertained. 1. Purchase Clerk. Qualification : Graduation with five years experience of a reputed concern. 2. Cook, Qualification Middle with cooking experience. Salary as per Sugar Wage Board Age would be between 18 to 35 years. Reservation of Post will be as per Haryana Govt. rules preference will be given to persons having working experience and background of Sugar industries, Managing Director."
13. It is very difficult to believe that a woman will not have cooking experience and where is the need for her to submit a certificate to that effect and this especially applies to the petitioner, who was a labourer woman, and had qualification of B.A. Part II. She could not have had a servant at her home and had the cooking done from that servant for the other members of her family, as she could not afforded a servant.
14. Learned counsel for the petitioner has cited the case of Dewan Singh v. State of Haryana and another, AIR 1976 Supreme Court 1921, wherein it has been held as under :-
"(A) Punjab Panchayat Samities and Zila Parishads Act (3 of 1961), Section 124(2) - Order of dismissal passed without affording reasonable opportunity for making effective representation -Order, held, vitiated C.W. No. 197 of 1968 Dt/-21.5.1970 (Punj. & Har,)., Reversed."
15. It is clear that no enquiry was held against the petitioner nor was she given an opportunity to adduce any evidence before the Enquiry Authority which is in clear violation of principles of natural justice.
16. With the above observations, this writ petition is allowed. The order (Annexure P-10) passed by the Managing Director of the Sugar Mill (respondent No. 2) is quasned. The Managing Director (respondent No. 2) is directed to take the petitioner back in service with all consequential benefits from the date of termination of her service within a period of one month from the date of receiving a certified copy of this judgment.
C.M. No. 27899 of 2000 for the vacation of ad interim stay order granted in favour of the petitioner moved by respondent No. 2 stands dismissed accordingly.
17. Writ Petition allowed.