Decided on August 19,2013



Sudhanshu Dhulia, J. - (1.) HEARD Mr. Bhagwat Mehra, Advocate for the petitioner, Mr. Subhash Upadhyay, Standing Counsel for the State of Uttarakhand and Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. D.C.S. Rawat, Advocate for respondent No. 6.
(2.) THE petitioner was initially appointed as an Accounts Assistant Grade -B in a Government Company known as Kumaon Television Limited which was a subsidiary company of Kumaon Mandal Vikas Nigam. This company was wounded up in the year 1995 and vide order dated 30.12.1995 it was decided to absorb the retrenched employees of this Company in other Government departments. On 12.3.1996, the petitioner was absorbed as Junior Clerk in U.P. Sugar Department. Subsequently, by an Act of Parliament the new State of Uttarakhand was created and the petitioner gave his option for Uttarakhand and he was thereafter allotted to the Sugar Department of Uttarakhand. The services of the petitioner were subsequently confirmed in the year 2004 w.e.f. 1999 vide order dated 4.6.2003. The petitioner subsequently moved an application before the concerned authorities of Uttarakhand for his pay protection. His plea was that the pay he was getting in the Kumaon Television Limited should be protected in the new department. Ultimately the petitioner filed a writ petition No. 1133 (S/S) of 2004 which was disposed of with the direction to the authorities to consider giving him pay protection and pass appropriate orders. In the year 2011, when nothing happened, the petitioner filed another Writ petition No. 1157 (S/S) of 2011. Subsequently notices were issued by the Court to the Sugar Department of Uttarakhand. The petitioner subsequently received a notice dated 18.2.2012 from the respondent department as to why his services be not terminated in terms of Hon'ble Supreme Court decision in State of Uttaranchal v. Alok Sharma and others. On 29.2.2012, the petitioner sought further 15 days time to give his reply and also sought copy of the said judgment of Hon'ble Apex Court on which reliance was being placed by the Sugar Department. Instead of giving time, the services of the petitioner were terminated by the respondent authority vide order dated 15.3.2012. At this stage we need to go to the background of the matter. Like petitioner there are many other employees who were absorbed in other departments of State Government after 1995 - 96 from time to time. Some of the employees, however, were not absorbed and who had filed a writ petition before this Court and in one of these writ petitions i.e. Writ Petition No. 942 of 2001 (S/S) Alok Sharma and an -other v. State of Uttaranchal and others an order was passed not only directing the State Authorities to absorb the petitioners within three months but giving the entire back wages from 1996 onwards, i.e. the time since they were retrenched. This order was challenged by the State of Uttaranchal (as it was called then) before the Division Bench in Special Appeal. The Division Bench came to the conclusion that in other similar matters pertaining to such absorption wherein an appeal has been filed before the Hon'ble Apex Court, the Hon'ble Apex Court has issued notices on limited grounds of back wages and since no interference has been done as to the absorption, and therefore the special appeal was disposed of with direction that appointment be given to the petitioners. Aggrieved, the State filed a Special Leave to Appeal which was finally allowed and the Hon'ble Apex Court came to the conclusion that the entire absorption exercise was in violation of the absorption Rules which were made in the year 1991 known as the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Services Rules, 1991. This was said as in the absorption Rules itself there was a cut off date which was given as 1.10.1986 and only such employees who were appointed in the company on or before 1.10.1986 could have been reemployed or absorbed, elsewhere. Since the petitioners in those writ petitions were appointed after 1.10.1986, the Hon'ble Apex Court came to the conclusion that the learned Single Judge as well as Division Bench have committed an error in directing the absorption of such persons and the order of the learned Single Judge as well as Division Bench were set aside. In effect what has happened by the said judgment of the Hon'ble Apex Court is that the persons who were seeking absorption have been denied absorption.
(3.) THE petitioner's case is somewhat different from the aforesaid employees. Firstly, the petitioner was not a party in the above writ petitions or a party before the Hon'ble Apex Court. The petitioner was not a person seeking absorption. He had already been absorbed way back in the year 1996 without any intervention of the Hon'ble Court. In the writ petition filed before this Court all he was seeking was a pay protection! Instead of giving him pay protection, his services have been dispensed with unceremoniously which is totally in violation of principle of natural justice and fair play as he was never given a copy of the judgment of the Hon'ble Apex Court which was sought by the petitioner, and on the basis of which his services have been terminated. As far as giving fresh absorption is concerned, the same cannot be given in terms of Hon'ble Apex Court judgment in State of Uttaranchal v. Alok Sharma and others : (2009) 7 SCC 647. Even if the respondents chose to follow the judgment of Hon'ble Apex Court in case of the petitioner and thereby dispense with his services they can do so, but only in accordance with law which means that a prior notice or show cause must be given to the petitioner. It is primarily on the non compliance of the principles of natural justice and fair play that the validity of the impugned order dated 15.03.2012 cannot be sustained.;

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