India Tourism Development ... vs Mrs. Suman Sharma
2007 Latest Caselaw 1816 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. These two appeals are being taken up together and being disposed of by this common judgment and order as the issues raised therein are identical and similar.

2. Mrs. Suman Sharma, the respondent in LPA No. 830/2004, was appointed as a Front Office Assistant which was a Grade-V post in the India Tourism Development Corporation (ITDC for short), a company registered under the Companies Act, 1956 but controlled and managed for all practical purposes by the Union of India. Initial appointment of the respondent was a temporary appointment but the same was subsequently regularised and made permanent by issuing a letter dated 26th November, 1980. It was also indicated in the said letter issued to the respondent that she would be on probation for a period of six months and that ITDC would reserve the right to extend her probation period at its absolute discretion. Further, during the probationary period her services were liable to be terminated at any time without any notice and without assigning any reason. It was also stated that the after confirmation, her appointment might be terminated at any time by a month's notice or by payment of salary in lieu of notice. Clause 7 of the said letter stipulated that the services of the respondent would be governed by the conditions of service applicable to other staff members of the unit and would be governed by the rules and regulations of the unit of the Corporation wherever she was posted for that purpose. Clause 9 of the said letter stipulated that services of the respondent were liable to be transferred and posted to any unit/part of the Unit of the Corporation within India or abroad.

3. Therefore, respondent was an employee of the ITDC and was posted at Forest Lodge Sasangir. Subsequently, the respondent was given promotion on 24th September, 1985 and was placed in the next higher grade. It is nobody's case that the services of the respondent were not confirmed and therefore we are not required to examine the said issue nor was it urged before us.

4. On 26th August, 1985 the Government of India took a decision to entrust management and operation of the Forest Lodge at Sasangir, where the respondent was posted to the Department of Tourism, Government of Gujarat effective from 15th October, 1985. Therefore, management and operation of the Forest Lodge was being entrusted to another organisation having no relationship and/or functional unity with ITDC, which is a Government of India concern. The Government of India accorded sanction to the transfer of Forest Lodge at Sasangir to the Government of Gujarat effective from 16th October, 1985. ITDC conveyed terms of the transfer under its letter dated 18th September, 1985. The said letter also stated that all staff excluding the Manager and Superintendent (Accounts) were to be transferred to Government of Gujarat / Tourist Corporation of Gujarat Limited.

5. Legality of the order dated 18th September, 1985 was challenged by the respondent by filing a writ petition in this Court wherein it was submitted that there could not have been a unilateral transfer of the services of the respondent to the Department of Tourism, Government of Gujarat, without obtaining consent of the concerned person. The aforesaid plea taken by the respondent found favor with the learned Single Judge who held that no such transfer could be made by ITDC in favor of the Government of Gujarat, without obtaining prior approval and consent of the concerned person. For coming to the aforesaid conclusion, reliance was placed on the decision of the Supreme Court in Jawahar Lal Nehru University v. DR. K.S. Jawatkar and Ors. reported in (1989) Supp. 1 SCC 679. The following passage from the said judgment was highlighted by the learned Single Judge in his order dated 12th March, 2004, which reads as follows:

There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere.

6. Both the parties to the writ petition have challenged before this Court the order dated 12th March, 2004 passed by the learned Single Judge. ITDC challenged the said order stating the same to be bad in law whereas Mrs. Suman Sharma is aggrieved as no order with regard to her reinstatement and consequential benefits has been passed by the learned Single judge. We have heard the learned Counsel appearing for the parties on these appeals and perused the records made available to us.

7. Terms of the letter dated 18th September, 1985 are clear and explicit. At one stage it was sought to be submitted by the appellant that the order dated 18th September, 1985 was not an order of transfer of the respondent to any other organisation. The said stand taken by the appellant was found to be wrong in view of the clear wording used by the ITDC in the letter dated 18th September, 1985. In the said letter, sanction of the Government of India to transfer Forest Lodge at Sasangir to the Government of Gujarat was indicated in the first paragraph whereas in the second paragraph, Mr. Anil Malik, Manager of Hotel Aurangabad Ashok, was advised to take necessary steps to transfer the management and properties of the Forest Lodge at Sasangir to the Government of Gujarat/Tourism Corporation of Gujarat Limited, like transfer of the properties of ITDC at Ajanta and Ellora. It was also ordered that all the staff are to be transferred except the Manager and the Supdt.(Accounts). The aforesaid stipulations in the said order clearly belie the contention of the appellant that the respondent was not transferred and her services were not being placed at the disposal of the Gujarat State Government/Tourism Corporation of Gujarat Limited.

8. The respondent was an employee of ITDC and her services could be transferred to a different employer outside the control of ITDC only with her consent and approval. The learned Single Judge was therefore justified in passing the impugned order holding that the order of transfer of the respondent to a State Government organisation was bad in law.

9. The respondent was governed by the rules of the ITDC and as per the terms and conditions of her appointment, her services were liable to be transferred to any of the Units of ITDC. But under the said rules, she could not have been transferred to some other organisation or to a State Tourism Department. Had the services of the respondent were transferred to one of the units of ITDC at any other place, in that event such a transfer could not have been possibly interfered with in any manner, as the same would have been in accordance with the terms and conditions of her appointment. But the fact remains that in the present case she was not transferred to one of the units of the ITDC, but to a different employer, corporation owned by the State Government of Gujarat.

10. The learned Single Judge held that the said transfer, being without the consent of the respondent, would amount to retrenchment and the procedure for retrenchment having not been followed, the respondent would be deemed to continue to be an employee of the ITDC. However, instead of directing for reinstatement of the respondent in service, the learned Single Judge considered payment of an amount of Rs. 5 lacs to the respondent as reasonable compensation in lieu of reinstatement and back wages. So far as the findings that the aforesaid order of transfer of the respondent was without her consent and approval is concerned, we are also of the considered opinion that no such order in the manner it was issued could have been issued directing the services of the respondent to be transferred to the State Government.

11. Having arrived at the aforesaid conclusion, what remains to be considered is the relief to be granted to the respondent. In our considered opinion, the respondent having rendered only five and half years of service and being out of service of the ITDC for 19 long years, it would not be appropriate and justified to direct for her reinstatement. Direction for payment of reasonable and adequate compensation would be the appropriate relief to the respondent. The respondent had rendered five and half years of service. Her husband was also working in the said unit of the ITDC as Manager. However, he was transferred to Mysore. The respondent had also stated that she cannot stay back in Sasangir under any circumstances since her husband had been transferred to Mysore. However, in view of closure of the operations at Forest Lodge, Sasangir, Ms. Suman Sharma would have been transferred to another location and disrupt her family life. Ms. Suman Sharma could have also taken up employment. Principle of mitigation of loss is also applicable. Considering the entire facts and circumstances and taking into consideration the fact that she had served the Corporation only for five and half years, payment of compensation of an amount of Rs. 3 lacs in our considered opinion would be reasonable and appropriate. Therefore, we direct that she shall be paid a compensation of Rs. 3 lacs instead of Rs. 5 lacs as given by the learned Single Judge, which according to us would be just and appropriate. The said amount shall be paid by the appellant Corporation within a period of six weeks from today failing which the respondent shall be entitled to interest @ 9% p.a. from the date of filing of the writ petition till the date of actual payment. The judgment of the learned Single Judge is modified to the above extent. Both the appeals stand disposed of accordingly.