The State of Punjab Through the Secretary to Government Punjab Irrigation and Power Department and ors. Vs. Varinder Raj Kapporia and ors. - Court Judgment

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- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 1995(2) sc 410. keeping in view the factual position as emerging from the pleadings of the parties, it is clear that the workman had been warned well in time.jawahar lal gupta, j.1. this order will dispose of the five letters patent appeals nos. 1045 to 1049 of 1992.2. the learned single judge had disposed of five writ petitions in terms of the directions given by the bench in l.p.a. no. 740 of 1986. aggrieved by the direction, the state of punjab had filed these appeals. a few facts may be noticed.3. the respondents in these appeals were employed on work charge basis on different posts at the anandpur sahib hydel project. these appointments were made after the year 1975. the services of the respondents were terminated on the completion of the project in the year 1985-86. aggrieved by the action of the authorities in terminating their services, the employees filed the writ petitions in this court. it was inter-alia alleged that the state government had issued policy instructions for regularisation of the services of the persons who had been recruited on workcharge basis. in accordance with the instructions, the employees were entitled to be considered for regularisation. inspite of that, the respondents had deliberately and ar bitrarily retrenched the petitioners and also numerous other persons who were similarly situated. it was also alleged that an assurance had been given that the ser vices of the employees 'will not be terminated on the completion of the anandpur hydel project. it was categorically assured that the petitioners and persons similarly situated would be transferred to mukerian hydel project'. claiming that they were entitled to be regularised, the employees prayed for the issue of a writ of mandamus directing the department to reinstate them and to regularise their services.4. the department contested the claim. a written statement was filed on their behalf. it was averred that the 'termination of workcharge staff was effected in a phased manner after june 30, 1986 including the petitioners as per clause 20(1) read with clause 3 of certified standing orders for workcharged staff of anandpur sahib hydel project governing their service conditions........the services of the surplus workcharged (staff) were terminated and were given terminal benefits for the period they had rendered service on the anandpur sahib hydel project.....'. it was also averred that the surplus workcharged (staff) had been instructed even before the termination of their services to 'get their names registered at thein dam project and mukerian hydel project where the priority is being given for their employment against the available posts. most of the workmen who got their names registered had already been adjusted by the authorities against the available posts'. on these premises, it was claimed that the writ petition should be dismissed.5. the learned single judge disposed of the petition in terms of the directions given by the bench in l.p.a. no. 740 of 1986. these directions were in the following terms :-'we direct the respondents to take the retrenched employees in other projects or in service of the government according to the qualifications of each of the employees and their fitness. such absorption of the retrenched employee shall be done within a period of six months from this day. if any relaxation of the age limit is necessary, that shall also have to be done before appointments. the retrenched employees also will be entitled to take into account the service rendered in the anandpur sahib hydel project/mukerian hydel project (in) case they are appointed in pensionable jobs for the purpose of pension and other retirement benefits. however, it is made clear that any appointment made under this order shall be treated as new appointment for the purpose of seniority among the employees. this relief given is also without prejudice to the retrenchment and any other compensation they may be entitled to under the provisions of the industrial disputes act, 1947.'6. it has been urged on behalf of the appellants that the respondent-employees had been recruited for a specific project. on the completion of the work, they were rightly retrenched. now they cannot be absorhea as no posts are available. consequently, it is prayed that the appeals be accepted and the directions given by the learned single judge be set aside. on behalf of the respondent-employees, it has been urged that the retrenchment was illegal and consequently the directions given by the learned single judge should be implemented.7. it is not disputed that the appointments had been made for the execution of a work. the appointments were co-terminus with the project. on the completion of the work, the employees had no right to continue in service. still further, it has been categorically averred in the written statement filed on behalf of the present appellants that the employees had been asked to get their names registered at the thein dam project and mukerian hydel project for their employment against the available posts. most of the workmen who had got their names registered were actually adjusted. taken in totality, the action of the department was absolutely just and fair. the recruitment had been made for a project. on the completion of the work, the workmen had to be retrenched. this was done in conformity with the provisions of the certified standing orders. such amongst them as could be adjusted, were given jobs. it cannot be said that the appellants in retrenching the employees or terminating their services has not been shown to be violative of any provisions of law or instructions. consequently, it cannot be said that they were arbitrarily thrown out of service or that the action suffered from any illegality.8. inspite of this factual position, a direction has been given that the retrenched employees shall be appointed either on projects or in departments on available posts. it has been represented on behalf of the appellants that the retrenched employees in these cases were not entitled to such a relief. reliance in support of this claim has been placed on the decision in hindustan steel works construction limited etc. etc. v. hindustan steel works construction limited employees' union hyderabad, and anr. etc. etc., j.t. 1995(2) sc 410. keeping in view the factual position as emerging from the pleadings of the parties, it is clear that the workman had been warned well in time. they were asked to get their names registered. such amongst them as were careful enough to heed to the advise and had got their names registered were duly adjusted. however, those who chose to take their chance and did not get their names registered cannot have any legitimate cause for complaint. in any event, inspite of being asked, learned counsel for the respondent-workman is unable to indicate that any person junior to them had been adjusted or that such a per son had been retained in service while they were retrenched. if no one junior to the present respondents has been given a preferential treatment by the appellants, there is no basis for any complaint on behalf of the present respondents. it is also relevant to mention that once the services of the workmen had been terminated in conformity with the standing orders, they had no legal right to claim appointment to the post on another project which was to be run by different authorities. moreover, the appellants cannot be expected to keep on creating jobs even without any need merely for accommodating the retrenched employees. it has been repeatedly stated on behalf of the appellants that the jobs are not available. learned counsel for the respondents has not been able to refer to anything on the record to show that any of the respondent-workman was denied adjustment inspite of the availability of job.9. mr. bajwa states that no seniority list had been prepared by the appellants before ordering retrenchment. learned counsel concedes that no such plea was raised either at the time of the filing of petition or before the learned single judge. it cannot be allowed to be raised for the first time in the letters patent appeal as the department had got no chance to state the factual position in this behalf. consequently, this contention is rejected.10. a fact which needs to be noticed is that the motion bench while admitting the appeal had stayed the operation of the judgment of the learned single judge vide its order dated november 12, 1992. more than five years have elapsed since then. confirmation of the directions given by the learned single judge would place a wholly unreasonable burden on the appellants.11. taking the totality of circumstances into consideration, we are unable to uphold the directions given by the learned single judge. consequently, the appeals are allowed. the directions given by the learned single judge are reversed. since, it has not been shown that the action of the department in terminating the services of the workman was contrary to any provision of law, we find that there is no merit in the writ petitions. these are accordingly dismissed. however, there will be no order as to costs.