Daya Ram Yadav vs State Of U.P.Through Its ...
2017 Latest Caselaw 2053 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 15.05.2017
 
Delivered on 07.07.2017
 

 

 

 
Case :- SERVICE SINGLE No. - 896 of 2001
 

 
Petitioner :- Daya Ram Yadav
 
Respondent :- State Of U.P.Through Its Secy.Small Scale And 4 Ors
 
Counsel for Petitioner :- Pradeep Raje
 
Counsel for Respondent :- C.S.C.,Shobhit Mohan Shukla
 

 
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Hon'ble Vivek Chaudhary, J.

Heard learned counsel for petitioners, learned Standing Counsel for the State and Mr. Shobhit Mohan Shukla for other opposite parties.

The present writ petition is filed by four petitioners for mandamus commanding the opposite parties to allow the petitioners to continue to work on their post as Centre Incharge at Carpet Division, Bhadohi and pay their salaries month to month and not to give effect to order dated 15.11.2000 whereby their applications for Voluntary Retirement Scheme (here-in-after referred to as ''VRS') have been accepted by opposite party no.2.

Facts of the case relevant for the purposes of deciding the present controversy are that U.P. Export Corporation Ltd. is a Corporation of State of U.P. The said Corporation feeling that it is having employees in excess to its requirement, initiated retrenchment proceedings which were rejected by orders dated 07.04.1999 and 22.04.1999. A second proceedings for retrenchment were again initiated on 24.01.2000 and permission of Section 25 (1) (c) of Industrial Disputes Act, 1947 was sought from the Additional Labour Commissioner. The said proceedings were heard and decided by the Additional Labour Commissioner by his order dated 10.04.2000. Before the Additional Labour Commissioner, a preliminary objection was raised by employees that since the second application has been filed within a period of one year from the decision on the earlier application, hence, the same is legally not maintainable. While hearing the matter, it was submitted by the employers that they have already floated the VRS which has not been accepted by the employees sought to be retrenched and in case VRS scheme is accepted by the employees, there would be no requirement of any retrenchment. Employees submitted that in case they are offered the benefits of Vth Pay Commission with effect from 01.01.1996 while calculating their VRS benefits, they would be willing to accept the VRS. Additional Labour Commissioner in his order specifically noted that at the time of hearing the Management representative consented that if the employees will apply for revision of their benefits under Vth Pay Commission w.e.f. 01.01.1996, the Board of Directors shall, with the consent of the State Government, accept the same. The employees also agreed, hence, the Additional Labour Commissioner directed the Management to grant VRS to the petitioners taking decision on granting benefits of Vth Pay Commission w.e.f. 01.01.1996.

It appears that no decision was taken by the Management relating to grant of benefits of Vth Pay Commission and petitioners were made to submit applications under VRS, which they made on 12.10.2000, 31.10.2000 and 08.11.2000. The said applications thus contained a condition that they should be paid the benefits of Vth Pay Commission w.e.f. 01.01.1996 as per orders of Additional Labour Commissioner. The said VRS applications were accepted by letter dated 09.11.2000 and it was further directed that petitioners will be treated as relieved with effect from 15.11.2000. On 14.11.2000, petitioners faxed letters to the Managing Director specifically stating that in the VRS their benefits have not been specifically calculated and further informed that VRS is not acceptable without the benefits of Vth Pay Commission given to the petitioners. On 15.11.2000 petitioners were relieved ignoring their conditions and without calculating their benefits as per recommendations of Vth Pay Commission.

Respondents claim that thereafter in the Board of Directors meeting dated 16.11.2000 the request of employees for applying Vth Pay Commission was rejected and the same was communicated to the petitioners by letters dated 17.11.2000 and 22.11.2000. A copy of the letter dated 22.11.2000 is filed by the respondents as Annexure No.CA-1 to the counter affidavit dated 17.08.2006. Thus, admittedly till the time VRS was offered, accepted and petitioners were relieved the Management, despite order of Additional Labour Commissioner had not taken decision regarding application of Vth Pay Commission and petitioners were kept in dark and doubt by the Corporation.

The State is expected to act in an open and transparent manner with all including its employees. It is not expected that the State would play mischief with its employees. The law is well settled in this regard. A reference may be made to the following cases.

In the case of Keshav Mills Co. Ltd. vs. Union of India reported in 1973 (1) SCC 380, the Court in para-8 has held as under:-

"8.......Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in In re H. K. (a infant) (1). It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge Baldwin(2) as "in susceptible of exact definition but what reasonable man would regard as a fair procedure in particular circumstances". However, even the application of the concept of fair play requires real flexibility. Every thing will depend the actual facts and circumstances of a case."

In the case of K. I. Shephard v. Union of India reported in 1987 (4) SCC 431, the Court in para-11 has held as under:-

''11. In Re (H) K (an infant), [1967] 1 AER 226 Lord Parker, CJ, found that the immigration officer was not acting in a judicial or quasi-judicial capacity. Yet, the learned Chief Justice held that he still had to act fairly. In that case it meant giving K an opportunity of satisfying the officer as to his age, and for that purpose he had to let K know what his immediate impression was so that K could disabuse him of it. Lord Parker observed:-'

"I appreciate that in saying that, it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially".

The obligation to act fairly even in administrative decision making has since been widely followed.

12. Mulla in 'Fairness: The New Natural Justice' has stated:-

"Natural justice co-exists with, or reflected, a wider principle of fairness in decision-making and that all judicial and administrative decision-making and that all judicial and administrative decision-makers had a duty to act fairly. "

ln  A.K Kraipak & ors. v. Union of India & ors., reported in (1996) 2 SCC 262, a Constitution Bench referring to earlier judgments in para-12 held:-

"On the basis of these authorities it must be held that even when a State agency acts administratively, rules of natural justice would apply. As stated, natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed........"

"Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilization and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities."

Following the said judgment, in the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant reported in (2001) 1 SCC 182, the Court in para-2 held as under:-

"2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Straight jacket formula cannot be made applicable but compliance of the doctrine is solely dependant upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance of the doctrine, the law courts in that event ought to set right the wrong inflicted upon the concerned person and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action."

In the case of State of Tamil Nadu v. K. Shyam Sundar reported in (2011) 8 SCC 737, after referring to the judgment in State of Punjab & Anr. v. Gurdial Singh & Ors., (1980) 2 SCC 471, the Court held that:-

"when power is exercised in bad faith to attain ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal, it is called colourable exercise of power. The action becomes bad where the true object is to reach an end different from the one for which the power is entrusted, guided by an extraneous consideration, whether good or bad  but irrelevant to the entrustment. When the custodian of power is influenced in exercise of its power by considerations outside those for promotion of which the power is vested, the action becomes bad for the reason that power has not been exercised bonafide for the end design."

In view of aforesaid law settled it was incumbent upon the Corporation to come out with a VRS containing clear terms and conditions, specifically informing its employees the benefits which they would get under the VRS. It can neither be expected nor permitted of the Corporation to first obtain an acceptance from employees on the VRS forms and then decide the conditions of VRS to their detriment.

In the present case, acceptance to VRS from employees was obtained in the month of October and in the beginning of November, 2000. The said forms were accepted and orders were passed relieving the employees with effect from 15.11.2000. Admittedly, till that date i.e. 15.11.2000 when the employees were being relieved, neither Corporation had taken decision nor the employees were made aware as to what benefits they would get under the VRS. Admittedly, the decision in the Managing Committee meeting for the first time was taken on 16.11.2000. This cannot be called an honest and transparent approach by the Corporation. If the decision was taken on 16.11.2000, it was incumbent upon the Corporation to make fresh offers to the employees and ask them and if they would be willing for VRS in the given situation. However in a grossly arbitrary manner, the Corporation first relieved the employees and thereafter took decision to their detriment. The said conduct of respondents is violative to the spirit of Article 14 of the Constitution of India. Hence, the writ petition deserves to be allowed.

It is submitted on behalf of the Corporation that the Corporation is suffering huge loss and that long back respondents relieved the petitioners, therefore, they cannot be taken back again. The counsel for petitioners states that due to arbitrary conduct of respondents petitioners have lost many years of salary, they would have got till their regular retirement.

Looking to the facts and circumstances of the case, it would be appropriate to modify the relief of reinstatement to directing that the respondents will pay a lump-sump compensation of Rs.5,00,000/- (five lacs) to each of the petitioners within a period of one month from the date a certified copy of this order is served upon the respondent-2, Managing Director, U.P. Export Corporation Ltd., Lucknow.

With aforesaid observations and directions, the writ petition is allowed.

Order Date :-07.07.2017

Suresh/

(Vivek Chaudhary, J.)