Semantic Analysis by spaCy
V. Raghuram Vs. Singareni Collieries Co. Limited
Decided On : Jan-25-1983
Court : Andhra Pradesh
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Rly', (int) 2 => 'V. Raghu Ram', (int) 3 => 'Art', (int) 4 => 'N. Yellaiah Swamy', (int) 5 => 'P. L. Dhingra v. Union', (int) 6 => 'Art', (int) 7 => 'R. M. S. v. K. V. Gopinath', (int) 8 => 'J. N. Sarkary v.' ), 'GPE' => array( (int) 0 => 'Bellampalli', (int) 1 => 'India', (int) 2 => 'Bihar v. S. B. Misra', (int) 3 => 'India', (int) 4 => 'Debesh', (int) 5 => 'Art' ), 'TIME' => array( (int) 0 => '10.45 p.m.' ), 'PRODUCT' => array( (int) 0 => 'Art 311' ), 'WORK_OF_ART' => array( (int) 0 => 'Rule 5 of the Central Service (Temporary Service', (int) 1 => 'Regulation' ), 'EVENT' => array( (int) 0 => 'Regulation 22' ) ), 'desc' => array( 'Judgement' => array( 'id' => '425720', 'acts' => 'Conduct and Disciplinary Rules - Rule 11; Central Service (Temporary Service) Rule, 1965 - Rule 5; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 311 and 311(2); Food Corporation of India (Staff) Regulations, 1976 - Regulation 22', 'appealno' => 'W.P. No. 7293 of 1982.', 'appellant' => 'V. Raghuram', 'authreffered' => '', 'casename' => 'V. Raghuram Vs. Singareni Collieries Co. Limited', 'casenote' => 'Labour and Industrial - termination - Articles 226, 311 and 311 (2) of Constitution of India, Rule 11 of Conduct and Disciplinary Rules, Rule 5 of Central Service (Temporary Service) Rule, 1965 and Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 - termination after completion of probation - nothing in appointment order which says special order necessary for permanent appointment - termination made treating such employee as permanent staff - in such circumstances termination amount to punishment - termination made without giving opportunity to such employee to defend untenable. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation Accident due to mechanical defect in the vehicle Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability - Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-. - The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. Union of India [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'.The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => 'The Singareni Collieries Company Limited Dated 4th and 5th October, 1982. Registered Office, Kothagudem Collieries - 507101. Bhadrachalam Road Station, S.C. Rly. Ref. No. C/2027, Dr. V. Raghu Ram, Medical Officer, Area Hospital, Bellampalli. Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982. 2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.) x x x for Chairman & Managing Director ', 'counselplain' => '', 'counseldef' => '', 'court' => 'Andhra Pradesh', 'court_type' => 'HC', 'decidedon' => '1983-01-25', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'Kodandaramayya, J.', 'judgement' => 'ORDER<p style="text-align: justify;">1. The writ petition is filed to quash the orders of termination issued by the respondent company on 4th October, 1982. </p><p style="text-align: justify;">2. The petitioner was selected and appointed by the respondent as Medical Officer on 18th September, 1980. As per the said order of appointment, the petitioner will be on probation for a period of one year and during the period of probation his services will be terminable by one month's notice on either side and on confirmation he will be required to enter into an agreement to serve the company for a period of five years from the date of confirmation, and the order further recites that the company reserves the right to terminate the contract by giving him three months notice or three months pay in lieu of notice without assigning any reason. On 30th October, 1981 the Personnel Officer addressed a letter to the superintendent, Area Hospital, Bellampalli where the petitioner was working proposing the confirmation and also requiring the necessary agreement to be taken on a stamp paper. The petitioner averred in the affidavit that he purchased the necessary stamp papers and submitted to the authorities on 15th November, 1981, and nothing required to be done on his part. Thereafter the impugned order was passed on 4th October, 1982 which is in these terms : </p><p style="text-align: justify;">The Singareni Collieries Company Limited Dated 4th and 5th October, 1982.Registered Office,Kothagudem Collieries - 507101.Bhadrachalam Road Station,S.C. Rly.Ref. No. C/2027,Dr. V. Raghu Ram,Medical Officer,Area Hospital,Bellampalli.Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982.2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.)x x x for Chairman & Managing Director </p><p style="text-align: justify;">3. The petitioner challenges the said order on the ground that his services were terminated by way of punishment and taking disciplinary action against him and the impugned order is violative of the principles of natural justice and also Rule 11 of the Conduct and Disciplinary Rules relating to the company which requires an opportunity to be given to the employee and consequently the impugned order is liable to be set aside. </p><p style="text-align: justify;">4. In the counter-affidavit filed by the company it is stated that by virtue of the powers given to them under the order dated 4th October, 1982 they terminated the services of the petitioner and he has not become a permanent employee as the necessary agreement was not executed between the parties. It is also averred that the conduct of the petitioner during his service was not satisfactory and he became drug addict and has been indulging in activities which are commonly expected from drug addicts. He used to take pathedrine injections and other sedatives. It is also urged that on 29th June, 1982 he attempted to commit suicide and was therefore admitted into Bellampalli Hospital at 10.45 p.m. as an inpatient. A case was also registered as MLC 374 and treatment was given to him and consequently it was averred that 'in view of the above behavior it was found that continuance of the petitioner in service is absolutely not desirable and was felt to prove dangerous to the patients attending the hospital and thus unfit to continue as Doctor and therefore his services were terminated on 4th October, 1982. It was by way of abundant caution, three months salary was paid in lieu of notice even though that was not required. </p><p style="text-align: justify;">5. No doubt the respondent is a Government Company and it cannot be disputed that this Court can exercise the powers under Art. 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. A contention was raised in the counter-affidavit that no writ petition lies against the impugned order but the respondent's counsel fairly did not press this point during his arguments. </p><p style="text-align: justify;">6. The short question to be examined is whether this order of termination is based on misconduct as a disciplinary measure or passed in exercise of the powers of terminating the service without any stigma attached to the service. </p><p style="text-align: justify;">7. In order to find out the nature of order the terms employed in the order are not final. The Court can see the surrounding circumstances to find out whether the impugned order was passed as a measure of punishment. As laid down by the Supreme Court in state of Bihar v. S. B. Misra [1970-II L.L.J. 440] the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order and the form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. </p><p style="text-align: justify;">8. The above test is not easy to apply. The Court has to examine the record and it is fairly settled that the test is whether there is any material or circumstances brought on record by the petitioner to show that the apparent state of things may not be state of things and the apparently innocent or innocuous order of termination simpliciter may in reality be by way of punishment and the Court should not hesitate to call for and delve into the official records to unveil the apparent innocuity of the order and quash if, it is found to have been made by way of punishment without complying with the rules of natural justice and if the petitioner is civil servant without complying with the provisions of Art 311 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Apart from the assertion of the petitioner and the denial of the respondent that the impugned order is by way of punishment or not we have got the statement of of the respondent in the counter-affidavit regarding the conduct of the petitioner which is already extracted in extenso. The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. </p><p style="text-align: justify;">9. In N. Yellaiah Swamy v. The Director of Industries and Commerce (1971 (2) An. W.R. 183) a Bench of this Court took into account the statement in a counter-affidavit as a point to the same conclusion' to find out whether the conduct of the party is only a motive or the foundation for the action. In Debesh Chandra v. Union of India : [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'. The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated. The finding is sufficient to dispose of this case. But the learned counsel argued the other question also and hence I have to examine it also. </p><p style="text-align: justify;">10. The petitioner completed the one year period of probation. The rule does not specifically say that orders must be issued confirming the service. No doubt the order of appointment says that on confirmation he will be required to execute an agreement to serve the company for a period of five years. One month's notice if sufficient to terminate service during the period of probation but three months notice is necessary after the probation is completed. In view of the completion of the period of probation the respondent treated the petitioner as one who has become a regular employee and issued notice directing payment of three months salary. Once the petitioner has completed his probation he gets a right to the post and his termination of service prima facie constitutes punishment and necessary procedure of giving an opportunity must be followed. </p><p style="text-align: justify;">11. Further as held by the Supreme Court in P. L. Dhingra v. Union of India [1958 - I.L.L.J. 544] 'Where a person is appointed to a temporary post for a fixed term says five years, his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2) of the Constitution. The premature termination of the service of the servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2) of the Constitution'. </p><p style="text-align: justify;">12. Even on the construction of the order of appointment which provides for premature termination which provides for premature termination before the period fixed has expired, by giving to the petitioner three months notice or three months pay in lieu of notice without assigning any reason, was not complied with and hence the proceedings are vitiated. Admittedly three months notice was not given but a direction for payment of three months salary in lieu of notice was given. Now it is fairly settled that in order to enable the management to exercise the alternative mode of termination the management must pay the salary for the three months actually on the date of termination and a mere direction to pay or receive the amount is not sufficient compliance. The Supreme Court in Senior-Superintendent, R. M. S. v. K. V. Gopinath [1972 - I.L.L.J. 486] on the construction of proviso Rule 5 of the Central Service (Temporary Service) Rule of 1965 held that 'if the Government chooses to terminate the service at any time it can do so forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate he was drawing them immediately before the termination of his services'. Again in Raj Kumar v. Union of India [1970 - I.L.L.J. 13] the same principle is reiterated holding that there is no merit in the contention that it would be impossible for the authorities to give effect to the proviso if payment was made simultaneously with the service on the employee of the order of termination and thus emphasising the need of following the method of termination by paying the amount actually into the hands of the employee if the alternative mode of termination forthwith was adopted without giving notice for the prescribed period. These cases were reviewed in J. N. Sarkary v. Zonal Manager (1978(1) SLR 471) holding that on the construction of Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 holding that for the compliance of the said regulation it is necessary that the payment of pay and allowance shall be made simultaneously with the termination. In that case the petitioner was paid only salary but not allowances and hence it is held that unless both pay and allowances are paid together there is a violation of the said Regulation and the impugned order was quashed. Following the above principle, I hold that the termination order is also contrary to the terms of appointment and consequently vitiated. The cases cited by the respondent are not close to the point now raised.</p><p style="text-align: justify;">13. For the foregoing reasons, I hold that the impugned order is liable to be set aside and I allow the writ petition. I make no order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1983)IILLJ57AP', 'ratiodecidendi' => '', 'respondent' => 'Singareni Collieries Co. Limited', 'sub' => 'Labour and Industrial', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '425720' ) ) $title_for_layout = 'V. Raghuram Vs. Singareni Collieries Co. Limited Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Rule 11', (int) 1 => 'Constitution', (int) 2 => 'Constitution' ), 'ORG' => array( (int) 0 => 'ORDER1', (int) 1 => 'Personnel', (int) 2 => 'Area Hospital', (int) 3 => 'The Singareni Collieries Company Limited Dated', (int) 4 => '1982.Registered Office', (int) 5 => 'Kothagudem Collieries - 507101.Bhadrachalam Road Station', (int) 6 => 'Area Hospital', (int) 7 => 'Bellampalli Hospital', (int) 8 => 'MLC', (int) 9 => 'Court', (int) 10 => 'Court', (int) 11 => 'the Supreme Court', (int) 12 => 'Court', (int) 13 => 'Court', (int) 14 => 'Industries and Commerce', (int) 15 => 'Court', (int) 16 => 'Chandra v. Union of India', (int) 17 => 'the Government of India'', (int) 18 => 'the Supreme Court', (int) 19 => 'The Supreme Court', (int) 20 => 'Government', (int) 21 => 'Union of India', (int) 22 => 'Food Corporation of India' ), 'ORDINAL' => array( (int) 0 => '4th', (int) 1 => '4th', (int) 2 => '4th', (int) 3 => '5th', (int) 4 => '4th', (int) 5 => '4th' ), 'DATE' => array( (int) 0 => 'October, 1982', (int) 1 => '18th September, 1980', (int) 2 => 'one year', (int) 3 => 'one month's', (int) 4 => 'five years', (int) 5 => 'three months', (int) 6 => 'three months', (int) 7 => '30th October, 1981', (int) 8 => '15th November, 1981', (int) 9 => 'October, 1982', (int) 10 => 'October', (int) 11 => '8th October', (int) 12 => '8th October, 1982', (int) 13 => 'three months', (int) 14 => '18th September, 1980', (int) 15 => 'October, 1982', (int) 16 => '29th June, 1982', (int) 17 => 'October, 1982', (int) 18 => 'three months', (int) 19 => '1970', (int) 20 => '1971', (int) 21 => 'the one year', (int) 22 => 'five years', (int) 23 => 'One month's', (int) 24 => 'three months', (int) 25 => 'three months', (int) 26 => '1958', (int) 27 => 'five years', (int) 28 => 'three months', (int) 29 => 'three months', (int) 30 => 'three months', (int) 31 => 'three months', (int) 32 => 'the three months', (int) 33 => '1972', (int) 34 => '1965', (int) 35 => '1970', (int) 36 => '1976' ), 'CARDINAL' => array( (int) 0 => '2', (int) 1 => '1982.2', (int) 2 => '4', (int) 3 => '3', (int) 4 => '3', (int) 5 => '4.', (int) 6 => '5', (int) 7 => '226', (int) 8 => '6.', (int) 9 => '440', (int) 10 => '8.', (int) 11 => '9', (int) 12 => '2', (int) 13 => '183', (int) 14 => '1970]1SCR220', (int) 15 => '10', (int) 16 => '11', (int) 17 => '544', (int) 18 => '311(2', (int) 19 => '311(2', (int) 20 => '12', (int) 21 => '486', (int) 22 => '13', (int) 23 => '1978(1', (int) 24 => '471' ), 'PERSON' => array( (int) 0 => 'Bellampalli', (int) 1 => 'S.C. Rly', (int) 2 => 'V. Raghu Ram', (int) 3 => 'Art', (int) 4 => 'N. Yellaiah Swamy', (int) 5 => 'P. L. Dhingra v. Union', (int) 6 => 'Art', (int) 7 => 'R. M. S. v. K. V. Gopinath', (int) 8 => 'J. N. Sarkary v.' ), 'GPE' => array( (int) 0 => 'Bellampalli', (int) 1 => 'India', (int) 2 => 'Bihar v. S. B. Misra', (int) 3 => 'India', (int) 4 => 'Debesh', (int) 5 => 'Art' ), 'TIME' => array( (int) 0 => '10.45 p.m.' ), 'PRODUCT' => array( (int) 0 => 'Art 311' ), 'WORK_OF_ART' => array( (int) 0 => 'Rule 5 of the Central Service (Temporary Service', (int) 1 => 'Regulation' ), 'EVENT' => array( (int) 0 => 'Regulation 22' ) ) $desc = array( 'Judgement' => array( 'id' => '425720', 'acts' => 'Conduct and Disciplinary Rules - Rule 11; Central Service (Temporary Service) Rule, 1965 - Rule 5; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 311 and 311(2); Food Corporation of India (Staff) Regulations, 1976 - Regulation 22', 'appealno' => 'W.P. No. 7293 of 1982.', 'appellant' => 'V. Raghuram', 'authreffered' => '', 'casename' => 'V. Raghuram Vs. Singareni Collieries Co. Limited', 'casenote' => 'Labour and Industrial - termination - Articles 226, 311 and 311 (2) of Constitution of India, Rule 11 of Conduct and Disciplinary Rules, Rule 5 of Central Service (Temporary Service) Rule, 1965 and Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 - termination after completion of probation - nothing in appointment order which says special order necessary for permanent appointment - termination made treating such employee as permanent staff - in such circumstances termination amount to punishment - termination made without giving opportunity to such employee to defend untenable. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation Accident due to mechanical defect in the vehicle Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability - Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-. - The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. Union of India [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'.The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => 'The Singareni Collieries Company Limited Dated 4th and 5th October, 1982. Registered Office, Kothagudem Collieries - 507101. Bhadrachalam Road Station, S.C. Rly. Ref. No. C/2027, Dr. V. Raghu Ram, Medical Officer, Area Hospital, Bellampalli. Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982. 2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.) x x x for Chairman & Managing Director ', 'counselplain' => '', 'counseldef' => '', 'court' => 'Andhra Pradesh', 'court_type' => 'HC', 'decidedon' => '1983-01-25', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'Kodandaramayya, J.', 'judgement' => 'ORDER<p style="text-align: justify;">1. The writ petition is filed to quash the orders of termination issued by the respondent company on 4th October, 1982. </p><p style="text-align: justify;">2. The petitioner was selected and appointed by the respondent as Medical Officer on 18th September, 1980. As per the said order of appointment, the petitioner will be on probation for a period of one year and during the period of probation his services will be terminable by one month's notice on either side and on confirmation he will be required to enter into an agreement to serve the company for a period of five years from the date of confirmation, and the order further recites that the company reserves the right to terminate the contract by giving him three months notice or three months pay in lieu of notice without assigning any reason. On 30th October, 1981 the Personnel Officer addressed a letter to the superintendent, Area Hospital, Bellampalli where the petitioner was working proposing the confirmation and also requiring the necessary agreement to be taken on a stamp paper. The petitioner averred in the affidavit that he purchased the necessary stamp papers and submitted to the authorities on 15th November, 1981, and nothing required to be done on his part. Thereafter the impugned order was passed on 4th October, 1982 which is in these terms : </p><p style="text-align: justify;">The Singareni Collieries Company Limited Dated 4th and 5th October, 1982.Registered Office,Kothagudem Collieries - 507101.Bhadrachalam Road Station,S.C. Rly.Ref. No. C/2027,Dr. V. Raghu Ram,Medical Officer,Area Hospital,Bellampalli.Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982.2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.)x x x for Chairman & Managing Director </p><p style="text-align: justify;">3. The petitioner challenges the said order on the ground that his services were terminated by way of punishment and taking disciplinary action against him and the impugned order is violative of the principles of natural justice and also Rule 11 of the Conduct and Disciplinary Rules relating to the company which requires an opportunity to be given to the employee and consequently the impugned order is liable to be set aside. </p><p style="text-align: justify;">4. In the counter-affidavit filed by the company it is stated that by virtue of the powers given to them under the order dated 4th October, 1982 they terminated the services of the petitioner and he has not become a permanent employee as the necessary agreement was not executed between the parties. It is also averred that the conduct of the petitioner during his service was not satisfactory and he became drug addict and has been indulging in activities which are commonly expected from drug addicts. He used to take pathedrine injections and other sedatives. It is also urged that on 29th June, 1982 he attempted to commit suicide and was therefore admitted into Bellampalli Hospital at 10.45 p.m. as an inpatient. A case was also registered as MLC 374 and treatment was given to him and consequently it was averred that 'in view of the above behavior it was found that continuance of the petitioner in service is absolutely not desirable and was felt to prove dangerous to the patients attending the hospital and thus unfit to continue as Doctor and therefore his services were terminated on 4th October, 1982. It was by way of abundant caution, three months salary was paid in lieu of notice even though that was not required. </p><p style="text-align: justify;">5. No doubt the respondent is a Government Company and it cannot be disputed that this Court can exercise the powers under Art. 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. A contention was raised in the counter-affidavit that no writ petition lies against the impugned order but the respondent's counsel fairly did not press this point during his arguments. </p><p style="text-align: justify;">6. The short question to be examined is whether this order of termination is based on misconduct as a disciplinary measure or passed in exercise of the powers of terminating the service without any stigma attached to the service. </p><p style="text-align: justify;">7. In order to find out the nature of order the terms employed in the order are not final. The Court can see the surrounding circumstances to find out whether the impugned order was passed as a measure of punishment. As laid down by the Supreme Court in state of Bihar v. S. B. Misra [1970-II L.L.J. 440] the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order and the form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. </p><p style="text-align: justify;">8. The above test is not easy to apply. The Court has to examine the record and it is fairly settled that the test is whether there is any material or circumstances brought on record by the petitioner to show that the apparent state of things may not be state of things and the apparently innocent or innocuous order of termination simpliciter may in reality be by way of punishment and the Court should not hesitate to call for and delve into the official records to unveil the apparent innocuity of the order and quash if, it is found to have been made by way of punishment without complying with the rules of natural justice and if the petitioner is civil servant without complying with the provisions of Art 311 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Apart from the assertion of the petitioner and the denial of the respondent that the impugned order is by way of punishment or not we have got the statement of of the respondent in the counter-affidavit regarding the conduct of the petitioner which is already extracted in extenso. The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. </p><p style="text-align: justify;">9. In N. Yellaiah Swamy v. The Director of Industries and Commerce (1971 (2) An. W.R. 183) a Bench of this Court took into account the statement in a counter-affidavit as a point to the same conclusion' to find out whether the conduct of the party is only a motive or the foundation for the action. In Debesh Chandra v. Union of India : [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'. The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated. The finding is sufficient to dispose of this case. But the learned counsel argued the other question also and hence I have to examine it also. </p><p style="text-align: justify;">10. The petitioner completed the one year period of probation. The rule does not specifically say that orders must be issued confirming the service. No doubt the order of appointment says that on confirmation he will be required to execute an agreement to serve the company for a period of five years. One month's notice if sufficient to terminate service during the period of probation but three months notice is necessary after the probation is completed. In view of the completion of the period of probation the respondent treated the petitioner as one who has become a regular employee and issued notice directing payment of three months salary. Once the petitioner has completed his probation he gets a right to the post and his termination of service prima facie constitutes punishment and necessary procedure of giving an opportunity must be followed. </p><p style="text-align: justify;">11. Further as held by the Supreme Court in P. L. Dhingra v. Union of India [1958 - I.L.L.J. 544] 'Where a person is appointed to a temporary post for a fixed term says five years, his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2) of the Constitution. The premature termination of the service of the servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2) of the Constitution'. </p><p style="text-align: justify;">12. Even on the construction of the order of appointment which provides for premature termination which provides for premature termination before the period fixed has expired, by giving to the petitioner three months notice or three months pay in lieu of notice without assigning any reason, was not complied with and hence the proceedings are vitiated. Admittedly three months notice was not given but a direction for payment of three months salary in lieu of notice was given. Now it is fairly settled that in order to enable the management to exercise the alternative mode of termination the management must pay the salary for the three months actually on the date of termination and a mere direction to pay or receive the amount is not sufficient compliance. The Supreme Court in Senior-Superintendent, R. M. S. v. K. V. Gopinath [1972 - I.L.L.J. 486] on the construction of proviso Rule 5 of the Central Service (Temporary Service) Rule of 1965 held that 'if the Government chooses to terminate the service at any time it can do so forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate he was drawing them immediately before the termination of his services'. Again in Raj Kumar v. Union of India [1970 - I.L.L.J. 13] the same principle is reiterated holding that there is no merit in the contention that it would be impossible for the authorities to give effect to the proviso if payment was made simultaneously with the service on the employee of the order of termination and thus emphasising the need of following the method of termination by paying the amount actually into the hands of the employee if the alternative mode of termination forthwith was adopted without giving notice for the prescribed period. These cases were reviewed in J. N. Sarkary v. Zonal Manager (1978(1) SLR 471) holding that on the construction of Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 holding that for the compliance of the said regulation it is necessary that the payment of pay and allowance shall be made simultaneously with the termination. In that case the petitioner was paid only salary but not allowances and hence it is held that unless both pay and allowances are paid together there is a violation of the said Regulation and the impugned order was quashed. Following the above principle, I hold that the termination order is also contrary to the terms of appointment and consequently vitiated. The cases cited by the respondent are not close to the point now raised.</p><p style="text-align: justify;">13. For the foregoing reasons, I hold that the impugned order is liable to be set aside and I allow the writ petition. I make no order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1983)IILLJ57AP', 'ratiodecidendi' => '', 'respondent' => 'Singareni Collieries Co. Limited', 'sub' => 'Labour and Industrial', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '425720' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Union of India', (int) 17 => 'the Government of India'', (int) 18 => 'the Supreme Court', (int) 19 => 'The Supreme Court', (int) 20 => 'Government', (int) 21 => 'Union of India', (int) 22 => 'Food Corporation of India' ), 'ORDINAL' => array( (int) 0 => '4th', (int) 1 => '4th', (int) 2 => '4th', (int) 3 => '5th', (int) 4 => '4th', (int) 5 => '4th' ), 'DATE' => array( (int) 0 => 'October, 1982', (int) 1 => '18th September, 1980', (int) 2 => 'one year', (int) 3 => 'one month's', (int) 4 => 'five years', (int) 5 => 'three months', (int) 6 => 'three months', (int) 7 => '30th October, 1981', (int) 8 => '15th November, 1981', (int) 9 => 'October, 1982', (int) 10 => 'October', (int) 11 => '8th October', (int) 12 => '8th October, 1982', (int) 13 => 'three months', (int) 14 => '18th September, 1980', (int) 15 => 'October, 1982', (int) 16 => '29th June, 1982', (int) 17 => 'October, 1982', (int) 18 => 'three months', (int) 19 => '1970', (int) 20 => '1971', (int) 21 => 'the one year', (int) 22 => 'five years', (int) 23 => 'One month's', (int) 24 => 'three months', (int) 25 => 'three months', (int) 26 => '1958', (int) 27 => 'five years', (int) 28 => 'three months', (int) 29 => 'three months', (int) 30 => 'three months', (int) 31 => 'three months', (int) 32 => 'the three months', (int) 33 => '1972', (int) 34 => '1965', (int) 35 => '1970', (int) 36 => '1976' ), 'CARDINAL' => array( (int) 0 => '2', (int) 1 => '1982.2', (int) 2 => '4', (int) 3 => '3', (int) 4 => '3', (int) 5 => '4.', (int) 6 => '5', (int) 7 => '226', (int) 8 => '6.', (int) 9 => '440', (int) 10 => '8.', (int) 11 => '9', (int) 12 => '2', (int) 13 => '183', (int) 14 => '1970]1SCR220', (int) 15 => '10', (int) 16 => '11', (int) 17 => '544', (int) 18 => '311(2', (int) 19 => '311(2', (int) 20 => '12', (int) 21 => '486', (int) 22 => '13', (int) 23 => '1978(1', (int) 24 => '471' ), 'PERSON' => array( (int) 0 => 'Bellampalli', (int) 1 => 'S.C. Rly', (int) 2 => 'V. Raghu Ram', (int) 3 => 'Art', (int) 4 => 'N. Yellaiah Swamy', (int) 5 => 'P. L. Dhingra v. Union', (int) 6 => 'Art', (int) 7 => 'R. M. S. v. K. V. Gopinath', (int) 8 => 'J. N. Sarkary v.' ), 'GPE' => array( (int) 0 => 'Bellampalli', (int) 1 => 'India', (int) 2 => 'Bihar v. S. B. Misra', (int) 3 => 'India', (int) 4 => 'Debesh', (int) 5 => 'Art' ), 'TIME' => array( (int) 0 => '10.45 p.m.' ), 'PRODUCT' => array( (int) 0 => 'Art 311' ), 'WORK_OF_ART' => array( (int) 0 => 'Rule 5 of the Central Service (Temporary Service', (int) 1 => 'Regulation' ), 'EVENT' => array( (int) 0 => 'Regulation 22' ) ), 'desc' => array( 'Judgement' => array( 'id' => '425720', 'acts' => 'Conduct and Disciplinary Rules - Rule 11; Central Service (Temporary Service) Rule, 1965 - Rule 5; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 311 and 311(2); Food Corporation of India (Staff) Regulations, 1976 - Regulation 22', 'appealno' => 'W.P. No. 7293 of 1982.', 'appellant' => 'V. Raghuram', 'authreffered' => '', 'casename' => 'V. Raghuram Vs. Singareni Collieries Co. Limited', 'casenote' => 'Labour and Industrial - termination - Articles 226, 311 and 311 (2) of Constitution of India, Rule 11 of Conduct and Disciplinary Rules, Rule 5 of Central Service (Temporary Service) Rule, 1965 and Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 - termination after completion of probation - nothing in appointment order which says special order necessary for permanent appointment - termination made treating such employee as permanent staff - in such circumstances termination amount to punishment - termination made without giving opportunity to such employee to defend untenable. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation Accident due to mechanical defect in the vehicle Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability - Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-. - The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. Union of India [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'.The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => 'The Singareni Collieries Company Limited Dated 4th and 5th October, 1982. Registered Office, Kothagudem Collieries - 507101. Bhadrachalam Road Station, S.C. Rly. Ref. No. C/2027, Dr. V. Raghu Ram, Medical Officer, Area Hospital, Bellampalli. Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982. 2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.) x x x for Chairman & Managing Director ', 'counselplain' => '', 'counseldef' => '', 'court' => 'Andhra Pradesh', 'court_type' => 'HC', 'decidedon' => '1983-01-25', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'Kodandaramayya, J.', 'judgement' => 'ORDER<p style="text-align: justify;">1. The writ petition is filed to quash the orders of termination issued by the respondent company on 4th October, 1982. </p><p style="text-align: justify;">2. The petitioner was selected and appointed by the respondent as Medical Officer on 18th September, 1980. As per the said order of appointment, the petitioner will be on probation for a period of one year and during the period of probation his services will be terminable by one month's notice on either side and on confirmation he will be required to enter into an agreement to serve the company for a period of five years from the date of confirmation, and the order further recites that the company reserves the right to terminate the contract by giving him three months notice or three months pay in lieu of notice without assigning any reason. On 30th October, 1981 the Personnel Officer addressed a letter to the superintendent, Area Hospital, Bellampalli where the petitioner was working proposing the confirmation and also requiring the necessary agreement to be taken on a stamp paper. The petitioner averred in the affidavit that he purchased the necessary stamp papers and submitted to the authorities on 15th November, 1981, and nothing required to be done on his part. Thereafter the impugned order was passed on 4th October, 1982 which is in these terms : </p><p style="text-align: justify;">The Singareni Collieries Company Limited Dated 4th and 5th October, 1982.Registered Office,Kothagudem Collieries - 507101.Bhadrachalam Road Station,S.C. Rly.Ref. No. C/2027,Dr. V. Raghu Ram,Medical Officer,Area Hospital,Bellampalli.Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982.2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.)x x x for Chairman & Managing Director </p><p style="text-align: justify;">3. The petitioner challenges the said order on the ground that his services were terminated by way of punishment and taking disciplinary action against him and the impugned order is violative of the principles of natural justice and also Rule 11 of the Conduct and Disciplinary Rules relating to the company which requires an opportunity to be given to the employee and consequently the impugned order is liable to be set aside. </p><p style="text-align: justify;">4. In the counter-affidavit filed by the company it is stated that by virtue of the powers given to them under the order dated 4th October, 1982 they terminated the services of the petitioner and he has not become a permanent employee as the necessary agreement was not executed between the parties. It is also averred that the conduct of the petitioner during his service was not satisfactory and he became drug addict and has been indulging in activities which are commonly expected from drug addicts. He used to take pathedrine injections and other sedatives. It is also urged that on 29th June, 1982 he attempted to commit suicide and was therefore admitted into Bellampalli Hospital at 10.45 p.m. as an inpatient. A case was also registered as MLC 374 and treatment was given to him and consequently it was averred that 'in view of the above behavior it was found that continuance of the petitioner in service is absolutely not desirable and was felt to prove dangerous to the patients attending the hospital and thus unfit to continue as Doctor and therefore his services were terminated on 4th October, 1982. It was by way of abundant caution, three months salary was paid in lieu of notice even though that was not required. </p><p style="text-align: justify;">5. No doubt the respondent is a Government Company and it cannot be disputed that this Court can exercise the powers under Art. 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. A contention was raised in the counter-affidavit that no writ petition lies against the impugned order but the respondent's counsel fairly did not press this point during his arguments. </p><p style="text-align: justify;">6. The short question to be examined is whether this order of termination is based on misconduct as a disciplinary measure or passed in exercise of the powers of terminating the service without any stigma attached to the service. </p><p style="text-align: justify;">7. In order to find out the nature of order the terms employed in the order are not final. The Court can see the surrounding circumstances to find out whether the impugned order was passed as a measure of punishment. As laid down by the Supreme Court in state of Bihar v. S. B. Misra [1970-II L.L.J. 440] the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order and the form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. </p><p style="text-align: justify;">8. The above test is not easy to apply. The Court has to examine the record and it is fairly settled that the test is whether there is any material or circumstances brought on record by the petitioner to show that the apparent state of things may not be state of things and the apparently innocent or innocuous order of termination simpliciter may in reality be by way of punishment and the Court should not hesitate to call for and delve into the official records to unveil the apparent innocuity of the order and quash if, it is found to have been made by way of punishment without complying with the rules of natural justice and if the petitioner is civil servant without complying with the provisions of Art 311 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Apart from the assertion of the petitioner and the denial of the respondent that the impugned order is by way of punishment or not we have got the statement of of the respondent in the counter-affidavit regarding the conduct of the petitioner which is already extracted in extenso. The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. </p><p style="text-align: justify;">9. In N. Yellaiah Swamy v. The Director of Industries and Commerce (1971 (2) An. W.R. 183) a Bench of this Court took into account the statement in a counter-affidavit as a point to the same conclusion' to find out whether the conduct of the party is only a motive or the foundation for the action. In Debesh Chandra v. Union of India : [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'. The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated. The finding is sufficient to dispose of this case. But the learned counsel argued the other question also and hence I have to examine it also. </p><p style="text-align: justify;">10. The petitioner completed the one year period of probation. The rule does not specifically say that orders must be issued confirming the service. No doubt the order of appointment says that on confirmation he will be required to execute an agreement to serve the company for a period of five years. One month's notice if sufficient to terminate service during the period of probation but three months notice is necessary after the probation is completed. In view of the completion of the period of probation the respondent treated the petitioner as one who has become a regular employee and issued notice directing payment of three months salary. Once the petitioner has completed his probation he gets a right to the post and his termination of service prima facie constitutes punishment and necessary procedure of giving an opportunity must be followed. </p><p style="text-align: justify;">11. Further as held by the Supreme Court in P. L. Dhingra v. Union of India [1958 - I.L.L.J. 544] 'Where a person is appointed to a temporary post for a fixed term says five years, his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2) of the Constitution. The premature termination of the service of the servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2) of the Constitution'. </p><p style="text-align: justify;">12. Even on the construction of the order of appointment which provides for premature termination which provides for premature termination before the period fixed has expired, by giving to the petitioner three months notice or three months pay in lieu of notice without assigning any reason, was not complied with and hence the proceedings are vitiated. Admittedly three months notice was not given but a direction for payment of three months salary in lieu of notice was given. Now it is fairly settled that in order to enable the management to exercise the alternative mode of termination the management must pay the salary for the three months actually on the date of termination and a mere direction to pay or receive the amount is not sufficient compliance. The Supreme Court in Senior-Superintendent, R. M. S. v. K. V. Gopinath [1972 - I.L.L.J. 486] on the construction of proviso Rule 5 of the Central Service (Temporary Service) Rule of 1965 held that 'if the Government chooses to terminate the service at any time it can do so forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate he was drawing them immediately before the termination of his services'. Again in Raj Kumar v. Union of India [1970 - I.L.L.J. 13] the same principle is reiterated holding that there is no merit in the contention that it would be impossible for the authorities to give effect to the proviso if payment was made simultaneously with the service on the employee of the order of termination and thus emphasising the need of following the method of termination by paying the amount actually into the hands of the employee if the alternative mode of termination forthwith was adopted without giving notice for the prescribed period. These cases were reviewed in J. N. Sarkary v. Zonal Manager (1978(1) SLR 471) holding that on the construction of Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 holding that for the compliance of the said regulation it is necessary that the payment of pay and allowance shall be made simultaneously with the termination. In that case the petitioner was paid only salary but not allowances and hence it is held that unless both pay and allowances are paid together there is a violation of the said Regulation and the impugned order was quashed. Following the above principle, I hold that the termination order is also contrary to the terms of appointment and consequently vitiated. The cases cited by the respondent are not close to the point now raised.</p><p style="text-align: justify;">13. For the foregoing reasons, I hold that the impugned order is liable to be set aside and I allow the writ petition. I make no order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1983)IILLJ57AP', 'ratiodecidendi' => '', 'respondent' => 'Singareni Collieries Co. Limited', 'sub' => 'Labour and Industrial', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '425720' ) ) $title_for_layout = 'V. Raghuram Vs. Singareni Collieries Co. Limited Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Rule 11', (int) 1 => 'Constitution', (int) 2 => 'Constitution' ), 'ORG' => array( (int) 0 => 'ORDER1', (int) 1 => 'Personnel', (int) 2 => 'Area Hospital', (int) 3 => 'The Singareni Collieries Company Limited Dated', (int) 4 => '1982.Registered Office', (int) 5 => 'Kothagudem Collieries - 507101.Bhadrachalam Road Station', (int) 6 => 'Area Hospital', (int) 7 => 'Bellampalli Hospital', (int) 8 => 'MLC', (int) 9 => 'Court', (int) 10 => 'Court', (int) 11 => 'the Supreme Court', (int) 12 => 'Court', (int) 13 => 'Court', (int) 14 => 'Industries and Commerce', (int) 15 => 'Court', (int) 16 => 'Chandra v. Union of India', (int) 17 => 'the Government of India'', (int) 18 => 'the Supreme Court', (int) 19 => 'The Supreme Court', (int) 20 => 'Government', (int) 21 => 'Union of India', (int) 22 => 'Food Corporation of India' ), 'ORDINAL' => array( (int) 0 => '4th', (int) 1 => '4th', (int) 2 => '4th', (int) 3 => '5th', (int) 4 => '4th', (int) 5 => '4th' ), 'DATE' => array( (int) 0 => 'October, 1982', (int) 1 => '18th September, 1980', (int) 2 => 'one year', (int) 3 => 'one month's', (int) 4 => 'five years', (int) 5 => 'three months', (int) 6 => 'three months', (int) 7 => '30th October, 1981', (int) 8 => '15th November, 1981', (int) 9 => 'October, 1982', (int) 10 => 'October', (int) 11 => '8th October', (int) 12 => '8th October, 1982', (int) 13 => 'three months', (int) 14 => '18th September, 1980', (int) 15 => 'October, 1982', (int) 16 => '29th June, 1982', (int) 17 => 'October, 1982', (int) 18 => 'three months', (int) 19 => '1970', (int) 20 => '1971', (int) 21 => 'the one year', (int) 22 => 'five years', (int) 23 => 'One month's', (int) 24 => 'three months', (int) 25 => 'three months', (int) 26 => '1958', (int) 27 => 'five years', (int) 28 => 'three months', (int) 29 => 'three months', (int) 30 => 'three months', (int) 31 => 'three months', (int) 32 => 'the three months', (int) 33 => '1972', (int) 34 => '1965', (int) 35 => '1970', (int) 36 => '1976' ), 'CARDINAL' => array( (int) 0 => '2', (int) 1 => '1982.2', (int) 2 => '4', (int) 3 => '3', (int) 4 => '3', (int) 5 => '4.', (int) 6 => '5', (int) 7 => '226', (int) 8 => '6.', (int) 9 => '440', (int) 10 => '8.', (int) 11 => '9', (int) 12 => '2', (int) 13 => '183', (int) 14 => '1970]1SCR220', (int) 15 => '10', (int) 16 => '11', (int) 17 => '544', (int) 18 => '311(2', (int) 19 => '311(2', (int) 20 => '12', (int) 21 => '486', (int) 22 => '13', (int) 23 => '1978(1', (int) 24 => '471' ), 'PERSON' => array( (int) 0 => 'Bellampalli', (int) 1 => 'S.C. Rly', (int) 2 => 'V. Raghu Ram', (int) 3 => 'Art', (int) 4 => 'N. Yellaiah Swamy', (int) 5 => 'P. L. Dhingra v. Union', (int) 6 => 'Art', (int) 7 => 'R. M. S. v. K. V. Gopinath', (int) 8 => 'J. N. Sarkary v.' ), 'GPE' => array( (int) 0 => 'Bellampalli', (int) 1 => 'India', (int) 2 => 'Bihar v. S. B. Misra', (int) 3 => 'India', (int) 4 => 'Debesh', (int) 5 => 'Art' ), 'TIME' => array( (int) 0 => '10.45 p.m.' ), 'PRODUCT' => array( (int) 0 => 'Art 311' ), 'WORK_OF_ART' => array( (int) 0 => 'Rule 5 of the Central Service (Temporary Service', (int) 1 => 'Regulation' ), 'EVENT' => array( (int) 0 => 'Regulation 22' ) ) $desc = array( 'Judgement' => array( 'id' => '425720', 'acts' => 'Conduct and Disciplinary Rules - Rule 11; Central Service (Temporary Service) Rule, 1965 - Rule 5; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226, 311 and 311(2); Food Corporation of India (Staff) Regulations, 1976 - Regulation 22', 'appealno' => 'W.P. No. 7293 of 1982.', 'appellant' => 'V. Raghuram', 'authreffered' => '', 'casename' => 'V. Raghuram Vs. Singareni Collieries Co. Limited', 'casenote' => 'Labour and Industrial - termination - Articles 226, 311 and 311 (2) of Constitution of India, Rule 11 of Conduct and Disciplinary Rules, Rule 5 of Central Service (Temporary Service) Rule, 1965 and Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 - termination after completion of probation - nothing in appointment order which says special order necessary for permanent appointment - termination made treating such employee as permanent staff - in such circumstances termination amount to punishment - termination made without giving opportunity to such employee to defend untenable. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation Accident due to mechanical defect in the vehicle Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability - Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-. - The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. Union of India [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'.The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => 'The Singareni Collieries Company Limited Dated 4th and 5th October, 1982. Registered Office, Kothagudem Collieries - 507101. Bhadrachalam Road Station, S.C. Rly. Ref. No. C/2027, Dr. V. Raghu Ram, Medical Officer, Area Hospital, Bellampalli. Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982. 2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.) x x x for Chairman & Managing Director ', 'counselplain' => '', 'counseldef' => '', 'court' => 'Andhra Pradesh', 'court_type' => 'HC', 'decidedon' => '1983-01-25', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'Kodandaramayya, J.', 'judgement' => 'ORDER<p style="text-align: justify;">1. The writ petition is filed to quash the orders of termination issued by the respondent company on 4th October, 1982. </p><p style="text-align: justify;">2. The petitioner was selected and appointed by the respondent as Medical Officer on 18th September, 1980. As per the said order of appointment, the petitioner will be on probation for a period of one year and during the period of probation his services will be terminable by one month's notice on either side and on confirmation he will be required to enter into an agreement to serve the company for a period of five years from the date of confirmation, and the order further recites that the company reserves the right to terminate the contract by giving him three months notice or three months pay in lieu of notice without assigning any reason. On 30th October, 1981 the Personnel Officer addressed a letter to the superintendent, Area Hospital, Bellampalli where the petitioner was working proposing the confirmation and also requiring the necessary agreement to be taken on a stamp paper. The petitioner averred in the affidavit that he purchased the necessary stamp papers and submitted to the authorities on 15th November, 1981, and nothing required to be done on his part. Thereafter the impugned order was passed on 4th October, 1982 which is in these terms : </p><p style="text-align: justify;">The Singareni Collieries Company Limited Dated 4th and 5th October, 1982.Registered Office,Kothagudem Collieries - 507101.Bhadrachalam Road Station,S.C. Rly.Ref. No. C/2027,Dr. V. Raghu Ram,Medical Officer,Area Hospital,Bellampalli.Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982.2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.)x x x for Chairman & Managing Director </p><p style="text-align: justify;">3. The petitioner challenges the said order on the ground that his services were terminated by way of punishment and taking disciplinary action against him and the impugned order is violative of the principles of natural justice and also Rule 11 of the Conduct and Disciplinary Rules relating to the company which requires an opportunity to be given to the employee and consequently the impugned order is liable to be set aside. </p><p style="text-align: justify;">4. In the counter-affidavit filed by the company it is stated that by virtue of the powers given to them under the order dated 4th October, 1982 they terminated the services of the petitioner and he has not become a permanent employee as the necessary agreement was not executed between the parties. It is also averred that the conduct of the petitioner during his service was not satisfactory and he became drug addict and has been indulging in activities which are commonly expected from drug addicts. He used to take pathedrine injections and other sedatives. It is also urged that on 29th June, 1982 he attempted to commit suicide and was therefore admitted into Bellampalli Hospital at 10.45 p.m. as an inpatient. A case was also registered as MLC 374 and treatment was given to him and consequently it was averred that 'in view of the above behavior it was found that continuance of the petitioner in service is absolutely not desirable and was felt to prove dangerous to the patients attending the hospital and thus unfit to continue as Doctor and therefore his services were terminated on 4th October, 1982. It was by way of abundant caution, three months salary was paid in lieu of notice even though that was not required. </p><p style="text-align: justify;">5. No doubt the respondent is a Government Company and it cannot be disputed that this Court can exercise the powers under Art. 226 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. A contention was raised in the counter-affidavit that no writ petition lies against the impugned order but the respondent's counsel fairly did not press this point during his arguments. </p><p style="text-align: justify;">6. The short question to be examined is whether this order of termination is based on misconduct as a disciplinary measure or passed in exercise of the powers of terminating the service without any stigma attached to the service. </p><p style="text-align: justify;">7. In order to find out the nature of order the terms employed in the order are not final. The Court can see the surrounding circumstances to find out whether the impugned order was passed as a measure of punishment. As laid down by the Supreme Court in state of Bihar v. S. B. Misra [1970-II L.L.J. 440] the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order and the form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. </p><p style="text-align: justify;">8. The above test is not easy to apply. The Court has to examine the record and it is fairly settled that the test is whether there is any material or circumstances brought on record by the petitioner to show that the apparent state of things may not be state of things and the apparently innocent or innocuous order of termination simpliciter may in reality be by way of punishment and the Court should not hesitate to call for and delve into the official records to unveil the apparent innocuity of the order and quash if, it is found to have been made by way of punishment without complying with the rules of natural justice and if the petitioner is civil servant without complying with the provisions of Art 311 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. Apart from the assertion of the petitioner and the denial of the respondent that the impugned order is by way of punishment or not we have got the statement of of the respondent in the counter-affidavit regarding the conduct of the petitioner which is already extracted in extenso. The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order. </p><p style="text-align: justify;">9. In N. Yellaiah Swamy v. The Director of Industries and Commerce (1971 (2) An. W.R. 183) a Bench of this Court took into account the statement in a counter-affidavit as a point to the same conclusion' to find out whether the conduct of the party is only a motive or the foundation for the action. In Debesh Chandra v. Union of India : [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'. The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated. The finding is sufficient to dispose of this case. But the learned counsel argued the other question also and hence I have to examine it also. </p><p style="text-align: justify;">10. The petitioner completed the one year period of probation. The rule does not specifically say that orders must be issued confirming the service. No doubt the order of appointment says that on confirmation he will be required to execute an agreement to serve the company for a period of five years. One month's notice if sufficient to terminate service during the period of probation but three months notice is necessary after the probation is completed. In view of the completion of the period of probation the respondent treated the petitioner as one who has become a regular employee and issued notice directing payment of three months salary. Once the petitioner has completed his probation he gets a right to the post and his termination of service prima facie constitutes punishment and necessary procedure of giving an opportunity must be followed. </p><p style="text-align: justify;">11. Further as held by the Supreme Court in P. L. Dhingra v. Union of India [1958 - I.L.L.J. 544] 'Where a person is appointed to a temporary post for a fixed term says five years, his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2) of the Constitution. The premature termination of the service of the servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2) of the Constitution'. </p><p style="text-align: justify;">12. Even on the construction of the order of appointment which provides for premature termination which provides for premature termination before the period fixed has expired, by giving to the petitioner three months notice or three months pay in lieu of notice without assigning any reason, was not complied with and hence the proceedings are vitiated. Admittedly three months notice was not given but a direction for payment of three months salary in lieu of notice was given. Now it is fairly settled that in order to enable the management to exercise the alternative mode of termination the management must pay the salary for the three months actually on the date of termination and a mere direction to pay or receive the amount is not sufficient compliance. The Supreme Court in Senior-Superintendent, R. M. S. v. K. V. Gopinath [1972 - I.L.L.J. 486] on the construction of proviso Rule 5 of the Central Service (Temporary Service) Rule of 1965 held that 'if the Government chooses to terminate the service at any time it can do so forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate he was drawing them immediately before the termination of his services'. Again in Raj Kumar v. Union of India [1970 - I.L.L.J. 13] the same principle is reiterated holding that there is no merit in the contention that it would be impossible for the authorities to give effect to the proviso if payment was made simultaneously with the service on the employee of the order of termination and thus emphasising the need of following the method of termination by paying the amount actually into the hands of the employee if the alternative mode of termination forthwith was adopted without giving notice for the prescribed period. These cases were reviewed in J. N. Sarkary v. Zonal Manager (1978(1) SLR 471) holding that on the construction of Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 holding that for the compliance of the said regulation it is necessary that the payment of pay and allowance shall be made simultaneously with the termination. In that case the petitioner was paid only salary but not allowances and hence it is held that unless both pay and allowances are paid together there is a violation of the said Regulation and the impugned order was quashed. Following the above principle, I hold that the termination order is also contrary to the terms of appointment and consequently vitiated. The cases cited by the respondent are not close to the point now raised.</p><p style="text-align: justify;">13. For the foregoing reasons, I hold that the impugned order is liable to be set aside and I allow the writ petition. I make no order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1983)IILLJ57AP', 'ratiodecidendi' => '', 'respondent' => 'Singareni Collieries Co. Limited', 'sub' => 'Labour and Industrial', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '425720' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Rule 11, Constitution, Constitution
ORG: ORDER1, Personnel, Area Hospital, The Singareni Collieries Company Limited Dated, 1982.Registered Office, Kothagudem Collieries - 507101.Bhadrachalam Road Station, Area Hospital, Bellampalli Hospital, MLC, Court, Court, the Supreme Court, Court, Court, Industries and Commerce, Court, Chandra v. Union of India, the Government of India', the Supreme Court, The Supreme Court, Government, Union of India, Food Corporation of India
ORDINAL: 4th, 4th, 4th, 5th, 4th, 4th
DATE: October, 1982, 18th September, 1980, one year, one month's, five years, three months, three months, 30th October, 1981, 15th November, 1981, October, 1982, October, 8th October, 8th October, 1982, three months, 18th September, 1980, October, 1982, 29th June, 1982, October, 1982, three months, 1970, 1971, the one year, five years, One month's, three months, three months, 1958, five years, three months, three months, three months, three months, the three months, 1972, 1965, 1970, 1976
CARDINAL: 2, 1982.2, 4, 3, 3, 4., 5, 226, 6., 440, 8., 9, 2, 183, 1970]1SCR220, 10, 11, 544, 311(2, 311(2, 12, 486, 13, 1978(1, 471
PERSON: Bellampalli, S.C. Rly, V. Raghu Ram, Art, N. Yellaiah Swamy, P. L. Dhingra v. Union, Art, R. M. S. v. K. V. Gopinath, J. N. Sarkary v.
GPE: Bellampalli, India, Bihar v. S. B. Misra, India, Debesh, Art
TIME: 10.45 p.m.
PRODUCT: Art 311
WORK_OF_ART: Rule 5 of the Central Service (Temporary Service, Regulation
EVENT: Regulation 22