Food Corporation of India Vs. J.S. Sirohi - Court Judgment

Sibghat Ullah Khan, J.

1. Heard Sri Satya Prakash, learned counsel for the appellant. No one appeared on behalf of respondents even though the case was taken up in the revised list.

Orders passed on 22.12.2011 and 18.5.2012 on the order sheet are quoted below:

"22.12.2011

This Second Appeal was earlier allowed on 15.2.2010 without framing any substantial questions of law. The said judgment has been set aside on 18.4.2011 by the Supreme Court in Civil Appeal No.3331 of 2011 only on the ground that appeal had been allowed without framing substantial question of law.

Accordingly it is directed that the appeal shall be heard on the following substantial question of law:-

1. Whether Civil Court has got jurisdiction to decide the suit filed by a workman against his termination order regarding which he could also raise an industrial dispute under Industrial Disputes Act.

List for hearing on 10.1.2012."

"18.5.2012

This appeal was initially allowed without framing any substantial question of law. Thereafter Supreme Court after setting aside the said judgment of this court remanded the matter for deciding the appeal after framing substantial question of law. On 22.12.2011 I framed the following substantial question of law:

Whether Civil Court has got jurisdiction to decide the suit filed by a workman against his termination order regarding which he could also raise an industrial dispute under Industrial Disputes Act.

Thereafter on 17.1.2012 arguments of learned counsel for the appellant were heard. No one had appeared on behalf of the respondent on the said date. Judgment was reserved.

However, while preparing the judgment it transpired that some more substantial questions of law were also involved. Accordingly, the following substantial questions of law are also framed:

2. Whether original plaintiff was workman as defined by Industrial Disputes Act.

3. Whether original plaintiff had been confirmed/deemed conformed on his post

4. Whether Regulation 19 of Food Corporation of India Staff Regulations 1971 has rightly been interpreted by the courts below.

5. Whether Regulation 19 of Food Corporation of India Staff Regulations 1971 was applicable to the original plaintiff regard being had to his nature status of employment at the time of its termination

6. Whether Regulation 19 of Food Corporation of India Staff Regulations 1971 is constitutionally valid or is violative of Article 14 and 16 of the Constitution of India?

7. What relief if any, can be granted to the Legal Representatives of original plaintiff who has died and substituted by Legal Representatives.

List for further hearing in the second week of July, 2012.

“This second appeal arises out of O.S. no.644 of 1974 instituted by J.S. Sirohi, original respondent in the Second appeal (since deceased and survived by legal representatives against Food Corporation of India, appellant in this appeal. The relief claimed in the suit was for declaration that termination of plaintiff who was an employee of Food Corporation of India was null and void. Relief of mandatory injunction directing the appellant to pay salary with increment to the plaintiff was also sought.

Plaintiff was appointed as Assistant Grade-III in the year 1972. He was promoted to the post of Assistant Grade 2(M) in 1973. However, on 7.11.1973 he was reverted back and on 27.12.1973 disciplinary proceedings were initiated against him by serving a charge sheet. However, without completion of domestic inquiry services were terminated on 23.1.1974 and the termination order was upheld in departmental appeal.

The case of the plaintiff was that services had wrongly been terminated without opportunity of hearing.

The case of the defendant appellant was that termination was not on the basis of misconduct or pursuant to finding of guilt in departmental proceedings but it was in accordance with the regulation 19 of the relevant regulations which provided for termination of services of an employee by giving him 90 days notice or pay in lieu thereof.

Trial court/XIII Additional Munsif Agra decreed the suit holding that plaintiff was deemed confirmed employee and suit was not barred by Specific Relief Act and it was maintainable before the Civil court. It was held that order of termination dated 23.1.1974 was void and inoperative. Defendant appellant was further directed to pay salary to the plaintiff with all benefits and increment from 21.1.1974 till date of the decree and allow the plaintiff to take charge of his original post with his due seniority. Against the said decree defendant appellant filed Civil Appeal no.212 of 1981. XIV A.D.J. Agra dismissed the appeal on 26.9.1991 hence this Second Appeal.

Substantial question of law no.1:-

As far as the first substantial question of law is concerned, in this regard reference may be made to the following authorities:

1.The Premier Automobiles Ltd. Vs. K.S. Wadke of Bombay A.I.R. 1975 SC 2238

2.Rajasthan State Road Transport Corporation Vs. Krishankant AIR 1995 SC 1715

3.Rajasthan State Road Transport Corporation Vs. Jakir Husain AIR 2005 (7) SCC 447

4.Rajasthan State Road Transport Corporation Vs. Khadarmal 2006(1) SCC 59 (three Judges Bench).

5.Chief engineer Hydel Project Vs. Ravindranath and others 2008(116) FLR 790 (SC)

6.Rajasthan State Road Transport Corporation Vs. Mohar Singh AIR 2008 SC 2553

7.Rajasthan State Road Transport Corporation Vs. Balmukund Bairwa 2009(4) SCC 299 by three Judges Bench constituted for resolving the conflict between AIR 1995 SC 1715 and 2007(14) SCC 41

8. Rajasthan State Road Transport Corporation Vs. Deendayal Sharma AIR 2010 SC 2662

9. Bihar State Electricity Board Vs. Ramdev Prasad Singh AIR 2011 SC 3423

In the authority of Chief engineer Hydel Project (Sr. no.5) mainly reliance was placed upon Rajasthan State Road Transport Corporation Vs. Zakir Husain (Sr. no.3).

In Rajasthan State Road Transport Corporation Vs. Deendayal Sharma AIR 2010 SC 2662(Sr. no.8) several authorities of the Supreme Court were considered particularly the three Judges Bench authority of Rajasthan State Road Transport Corporation Vs. Balmukund Bairwa 2009(4) SCC 299 Sr. no.7 which had been constituted to resolve apparent conflict between two earlier authorities. In the authority of Bihar State Electricity Board Vs. Ramdev Prasad Singh AIR 2011 SC 3423 apart from Supreme Court authority of The Premier Automobiles Ltd. Vs. K.S. Wadke of Bombay A.I.R. 1975 SC 2238 no other authority was considered. In the authority of Rajasthan State Road Transport Corporation Vs. Deendayal Sharma AIR 2010 SC 2662 after referring to earlier authorities of Road Transport Corporation Vs. Khadarmal and Rajasthan State Road Transport Corporation Vs. Jakir Husain and Rajasthan State Road Transport Corporation Vs. Balmukund Bairwa it was held that this plea had to be understood in the backdrop of workman's pleadings that dismissal order had been passed contrary to standing order without holding departmental inquiry. In the instant case also the plea taken by the workman was that his services were wrongly terminated without providing opportunity of hearing and he was a deemed confirmed employee.

Substantial question of law no.3:-

Learned counsel for the appellant has also cited the authority of Supreme Court reported in Headmaster Lawrence School Vs. Jayant Rajan 2012(133) FLR 3459(S.C.) holding that after expiry of period of probation an employee does not automatically become confirmed unless order of confirmation is passed.

As plaintiff had not specifically been confirmed hence he was not entitled to relief of reinstatement on the ground that his services were terminated without domestic inquiry.

The courts below held that after three days of submission of reply by the respondent to the charge sheet his services were terminated which was wrong. The Supreme Court in Oil and Natural Gas Commission and others Vs. Dr. Mohd. S. Iskander Ali, AIR 1980 SC 1242 has held that even if disciplinary proceedings are initiated against a temporary employee or probationer still dropping the same in between, services may be dispensed with.

In view of the above I decide question no. 1 and 3 in favour of the appellant. In view of decision of these two questions (1 and 3) there is no need to decide other substantial questions of law.

Second appeal is, therefore, allowed.

Decree passed by the lower appellate court confirming the decree of the trial court is set aside. Suit is dismissed.

Under Order VII Rule 7 C.P.C. the relief which is not asked for may be granted by the Court if circumstances warrant. In labour matters this principle has specifically been made applicable by the Supreme Court in U.P. State Brass Ware Corporation Vs. Udai Narain Pandey, A.I.R. A.I.R. 2006 SC 586. In view of peculiar facts and circumstances particularly the fact that bar of jurisdiction of Civil Court on the ground that matter was cognizable by labour court was not specifically raised by the petitioner employer before the courts below I consider it appropriate to award some reasonable damages/ compensation to the workman. Supreme Court in Haryana Urban Development Authority v. Om Pal, AIR 2008 SC 475 has held that even if employer is not at fault still some damages may be awarded to the workman. In the instant Second appeal on 18.4.1995 an interim order was passed staying the execution of the decree on the condition that entire salary due to respondent plaintiff was deposited before the trial court.

Accordingly, even though appeal is allowed but it is directed that legal representatives of the plaintiff respondent should be paid Rs. 1/- lac by the appellant. If any amount has been paid or deposited after the decree passed by the trial court the same shall be adjusted in this amount of Rs. 1/- lac. The deposited amount if any shall be paid to the legal representatives of the plaintiff respondent.