V.K. Bali, J.1. The Haryana Bureau of Public Enterprises (hereinafter referred to as 'HBPE'), arrayed as respondent No. 2 in the original lis, has filed this appeal under Clause X of the Letters Patent against judgment of learned Single Judge, dated 29.1.1999, recorded in Civil Writ Petition No. 442 of 1995, whereby the petition filed on behalf of petitioner Navneet Verma, Accounts Executive, Haryana Bureau of Public Administration, was allowed, setting aside order, Annexure P12, dated 30.12.1994, abolishing the posts of Accounts Executives, consequently terminating services of the petitioner. It was further ordered that the petitioner shall be reinstated in service forthwith with all consequential benefits, even though it was open to the authorities, if so advised, to take any such disciplinary action against the petitioner for any misconduct and proceed against him, in accordance with law and the rules.2. Brief facts of the case, constraining the petitioner to challenge the impugned order, Annexure P12, would reveal that Smt. Kiran Lekha Walia, the 3rd respondent arrayed in the original lis, applied for the post of Financial Adviser. It has been the case of the petitioner that she did not fulfil the prescribed requirement of 3 years experience after doing Chartered Accountancy. However, she had been appointed as Financial Adviser, whereas the petitioner, who was already working on the post of Accounts Executive, was required to report to the 3rd respondent but he was disillusioned to find that her only interest was in regard to her personal errands much more than official work. In fact, she wanted the petitioner to take him as her personal staff. The petitioner, after carrying out a few petty errands, made no secret of his resentment about the treatment meted out to him. When he brought the facts to the notice of respondent No. 2 - the Members Secretary, HBPE, he rather wanted to petitioner to resign from his job. On account of the complaint made by the petitioner, the 3rd respondent, it was the case of the petitioner, hardened her attitude, which was of insult and humiliation even in the presence of his subordinates. The petitioner received a communication, Annexure P5, casting serious aspersion even on his professional competence. The same also contained a veiled threat of disciplinary action against him. It was the case of the petitioner that on account of his complaint against respondent No. 3, respondents 2 and 3 got annoyed with him and planned to eliminate and relieve him from the service. The petitioner, having no option, made a representation to the Chief Minister, Haryana, vide Annexure P6. The 3rd respondent, thereafter lodged a totally false and baseless complaint against the petitioner to the Member Secretary, upon which one Shri S.S. Malhotra, Personal Secretary to the Chairman, was appointed to conduct a preliminary enquiry into the allegations made by the 3rd respondent in her complaint. By an office order dated 3.8.1994, petitioner was made to report to the Management Consultant instead of respondent No. 3. In the note aforesaid, it was stated that in discharge of her function, the 3rd respondent was to be assisted by another Accounts Executive, to be posted. The petitioner made a request to the Investigating Officer, who was asked to make a preliminary inquiry, to furnish a copy of the complaint said to have been made by the 3rd respondent, but he was advised to approach the 2nd respondent in this regard. The 2nd respondent, however, declined to supply the material required by the petitioner, vide Annexure P10. It was the case of the petitioner that thereafter no action was taken against the petitioner on the basis of the report of the Inquiry Officer. But instead of taking any action, the services of the petitioner had been dispensed with, consequent upon the abolition of the post of the Accounts Executive vide Annexure P12, which, as mentioned above, was challenged, with the result already indicated above.3. Primarily, it has been the case of the petitioner that the entire exercise, leading to abolishing his post, was a colourable exercise, simply with a view to ease him out on account of animosity with respondent No. 3, on account of a complaint, having been made by him against misbehavious of respondent No. 3 from the Job which came to be occupied by him on 16.7.1993.4. Respondents 1 to 3 entered defence and contested the cause of the petitioner by inter alia, pleading that in January, 1994, it was felt that the work of Bureau was not being performed as per official requirements and it required restructuring of the staff vis-a-vis the work load of the Bureau and it was observed that the contribution of two posts of Accounts Executives, especially when there are two posts of Accountants, were not result-oriented and the work could smoothly be carried out even without the two posts of Accounts Executives as these were creating mismanagement and overlapping as they required the same work and their individual contribution on official files had become redundant due to overlapping. It was further stated that the Accountants can sent their cases directly to the Financial Adviser, who was the head of the financial wing in giving advice regarding financial affairs. It was in consequence thereof that two posts of Accounts Executives were abolished and the services of the petitioner were terminated as they were no longer required. The other allegations with regard to the effect of the complaint made by the petitioner against the 3rd respondent and an attitude towards the petitioner, as alleged in the petition, were denied.5. Learned Single Judge, before whom the matter came up for final disposal, after examining the pleadings of the parties as also the record of the case, returned a finding that "it is a clear case of colourable exercise of the power. Except saying that the work of HBPE does not require any post of Accounts Executive, no material has been placed before me. This Court has to see what was the work which the Department wanted to assign to the Accounts Executives when the advertisement was issued. The HBPE came into existence by a notification dated 1st February, 1988 and thereafter the HBPE created the posts of Financial Adviser, Management Consultant, Personal Adviser, Accounts Executive, Senior Research Officer, Accounts and Asstt. Research Officer etc. and accordingly issued a notification for filling up these posts. At the time of creation of these posts, the Department must have assessed the work in the HBPE. What necessitated the respondents to abolish the posts of Accounts Executive was not mentioned. Therefore, it cannot be said that the abolition of the posts was done in good faith." Learned Single Judge relied upon the judgment of Hon'ble Supreme Court in N. Rama Natha Pillai v. State of Kerala and another, AIR 1973 Supreme Court 2641, wherein it has been observed as follows :"A post may be abolished in goods faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide, or as a mark of some penal action within the meaning of article 311(2)."Learned Single Judge also relied upon the Judgment of Supreme Court in State of Haryana v. Des Raj Sangar and another, 1976(1) S.L.R. 191, wherein it has been observed as under :-"Whether a post should be retained or abolished is essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the Court. It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the service of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Article 311."Learned Single Judge further observed as under :-"Thus it is clear that the Court can lift the veil and see whether the abolition of the spot has been done in good faith or whether it is a camouflage to cover up and conceal the real intention of weeding out the petitioner from service.On a consideration of the facts narrated above, I have no manner of doubt that the abolition of post of Accounts Executives has not been done in good faith. But only intended to get rid of the petitioner."6. Earlier while discussing the facts of the case on the basis of the pleadings, documents and the record, a finding was returned by learned Single Judge that no material had been placed before the Court that there was no work for Accounts Executives. Learned Single Judge also called for the files and on reading of the files, learned Single Judge returned a finding that "the files produced before me clearly show that both the petitioner and the 3rd respondent made allegations against each other. Right from the beginning the relations between them were not cordial. It appears that both the petitioner and the 3rd respondent possessed almost equal qualifications. The third respondent did not fulfil the requisite experience for the post of Financial Adviser. Initially, she was offered the post of Accounts Executive, but she refused to accept the said post and insisted that she should be taken as Financial Adviser by relaxing the qualification as to experience. Accordingly, she was appointed as Financial Adviser whereas the petitioner was appointed as Accounts Executive, who was also an aspirant for the post of Financial Adviser. That appears to be the main cause for the rift between the petitioner and the 3rd respondent. From the record, it is clear that in the month of July, 1994, both the petitioner and the 3rd respondent made allegations against each other. Shri S.S. Malhotra, Secretary to Chairman, HBPE, was deputed to hold a preliminary inquiry into the allegations made by the Financial Adviser against the petitioner, Accounts Executive. Though the petitioner made a request to him to supply certain documents, the same were denied to him on the ground that it is only a fact finding inquiry and at that stage the petitioner need not to be associated with. The files also indicate that the Inquiry Officer examined some witnesses behind his back and submitted his report on 22.8.1994 holding that Shri Verma, the petitioner, may have misbehaved with his boss Smt. Walia, Financial Adviser on 28.7.1994 at 3.00 P.M., but the actual manner of using indecent language/words cannot be adjudged on the basis of the evidence produced before him. But no action has been taken against the petitioner on the basis of the said preliminary report. Instead of that, a note was circulated on 17.10.1994 that the Chairman observed that there was no requirement for two posts of Accounts Executives and they can be abolished without affecting the work of Bureau. The said note was circulated to the Personal Adviser by the Research Officer, HBPE." Learned Single Judge also referred to the distribution of the work among the Management Consultant, Personal Adviser, Financial Adviser and Accounts Executive by an office order dated 5.8.1994. It was further observed that only thereafter and after the Inquiry Officer submitted his report, the steps for abolition of posts have been geared up and the Chief Secretary was requested to abolish two posts of Accounts Executive in HBPE by a letter written by the Member Secretary on 9.11.1994. It was further observed by learned Single Judge that there was no separate order abolishing the post, but Annexure P12 had been issued according sanction to abolition of two temporary posts of Accounts Executives and consequently terminating the services of the petitioner.7. The findings to the effect aforesaid have since been recorded, as mentioned above, on the basis of pleadings, documents and record that was summoned by learned Single Judge. There does not appear to be any other conclusion available that may be drawn on the established facts of this case.8. Mr. Raghubir Chaudhary, learned Senior Deputy Advocate General, Haryana, however, on the basis of office orders, Annexures R1, R2 and R3, contends that the abolition of post held by the petitioner was wholly justified and proceedings in the regard had commenced in January, 1994. Learned counsel states that if office notes, Annexures R1 to R3 might have been taken into consideration, the conclusion drawn by learned Single Judge may have been entirely different.9. We have given thoughtful consideration to the aforesaid contention of learned counsel but find no merit therein, whatsoever.10. It is significant to mention here that complaint, Annexure P4 was made by the petitioner and addressed to the 2nd respondent on 15.9.1993 and by the time Annexure R1, dated 12.1.1994 came into being, there was a full-fledged rift going on between the petitioner and the 3rd respondent. Office note, Annexure R1, pertains to Officers' meeting for assessing the work load/sanctioned staff for the HBPE. It has been mentioned in the office note aforesaid that a meeting of the officers of the Bureau was held by the Chairman on 11.1.1994. In the aforesaid meeting, the Chairman had felt that the work of the Bureau was not being performed as per its mandate and suggested some restructuring for staff vis-a-vis the work load of the Bureau. He further observed that when there are three professional posts to handle the financial affairs, Management affairs and personnel affairs of all the State Public Enterprises then what was the necessity of having two posts of Accounts Executives having the similar qualifications and experience as the Financial Adviser have. He also suggested that in the next officers level meeting the complete restructuring of staff vis-a-vis officers oriented nature of work of the Bureau and sanctioned staff may be put up with details. Office note, Annexure R2 pertains to officers' level meeting for assessing the work load/sanctioned staff for the HBPE. In the aforesaid meeting held on 11.1.1994, it was observed that while assessing the work load and staff in the Financial wing, it was observed that the contribution of 2 posts of Accounts Executives (one in position and one lying vacant) especially when there are 2 posts of Accountants was not result oriented and the work can smoothly be carried on even without the 2 posts of Accounts Executives. The Chairman desired that MS/HBPE should assess the work load and the staff strength of Finance and Accounts Wing and discuss in detail in the next officers level meeting. Office note, Annexure R3, dated 7.10.1994, pertains to office level meeting for assessing the work load/sanctioned staff for the HBPE. The following note was recorded on the date aforesaid :-"While assessing the performance of Finance and Accounts Wing, MS/HBPE has explained that there are 5 sanctioned posts in this wing namely : 1. Financial Adviser (one), 2. Accounts Executive (2), 3. Accountants (2), besides the other personal staff. One post of Accounts Executive remained vacant since its creation and the work assigned to other Accounts Executive was similar as that of Financial Adviser as the qualification and experience of both these posts were equal in all respects. It was also observed that in case 2 posts of Accounts Executives were abolished there will be no effect on the working of the Bureau."11. We have already mentioned that all these office notes came into being after the petitioner had already made a complaint against the 3rd respondent. The animosity between the petitioner and respondent No. 3 had come by the time office notes, Annexures R1 to R3 came into being. Further reading of three notes, as mentioned above, in the context of the facts of this case cannot be said as to be supporting the stand taken by the respondent-State, rather it is in consonance with the stand taken by the petitioner. It is significant to note that the Bureau came into being in 1988. The first incumbent on the post of Accounts Executive was one Mr. Ramesh Narang, who was appointed on 2.8.1989. He resigned on 28.2.1991. The second incumbent was Mr. Gulshan Mehta, who was appointed on 5.4.1990, but he did not join. His appointment was, thus, cancelled vide order dated 19.2.1991. Mr. A.K. Aggarwal was then appointed on the post on 29.4.1993 but he resigned from the said post, which was accepted on 10.6.1993. It is thereafter that on 16.7.1993, the petitioner had taken over the post of Accounts Executive. It would, thus, transpire that ever since the advent or coming into being of the Bureau, the respondents always thought it necessary to have, at least, one post of Accounts Executive occupied, out of the two posts. Insofar as, the post of Financial Adviser, on which respondent No. 3 was appointed is concerned, it would appear that on Mr. R.C. Aggarwal was appointed on 17.11.1989 but he did not join the same and, therefore, vide order dated 9.1.1991, his appointment was cancelled. It is the respondent-Department, which took about a year and a month in cancelling the order of appointment of Mr. R.C. Aggarwal and thereafter took another more than two years to app
Please Login To View The Full Judgment!
oint respondent No. 3 on the said post. We may mention here once again that respondent No. 3 was appointed on 7.4.1993 on the post of Financial Adviser. The post of Financial Adviser, thus, remained vacant ever- since the advent of the Bureau upto 1993. It rather shows that the respondents were not keen on filling up the post of Financial Adviser. What we have observed is also clear from reading of Annexures R1 to R3. In office note, Annexure R1, it has clearly been mentioned that Accounts Executives have similar qualifications and experience as that of Financial Adviser. Likewise, it has been mentioned in Annexure R3 as well that qualifications and experience for both these posts were equal in all respect. If the position be as has been mentioned with regard to qualifications and experience of the two posts, it is not understandable as to why the post held by the petitioner was declared surplus and not the one held by respondent No. 3, particularly when the Bureau had to pay her more than that of the petitioner. It is once again interesting to note that in office note, Annexures R1 to R3, it has been mentioned that one post of Accounts Executive had remained vacant since its creation and the work assigned to other Accounts Executives was similar as that of Financial Adviser; why then it was considered expedient to convert the post of Financial Adviser to that of Accounts Executive ? Nothing has been shown from the record as to why the post of Financial Adviser was not abolished, when the same remained vacant till 1993 and when the said post carried higher pay then that of Accounts Executive.12. The only contention that has been raised by Mr. Raghbir Chaudhary, learned Seniority Deputy Advocate General, Haryana, in support of this appeal, in fact, turns against it and rather fortifies the case of the petitioner.13. Finding no merit in this appeal, were dismiss the same, leaving, however, the parties to bear their own costs.