Remanded

Kavita J. Thakur v. Konkan Railway Corporation Ltd. and Ors.

Bombay HC24 Aug 2009WP/3371/2009

Case brief

AI extract

What is this about?

The court convened in an appeal regarding the termination of the petitioner's employment. The petitioner argued that the termination order was issued without a reasoned decision, failing to address her detailed reply, thereby violating constitutional provisions. The court agreed, emphasizing the need for a reasoned order to demonstrate application of mind, though it reserved judgment on substantiv

What did the court decide?

The Chief Personal Officer of the respondents is directed to pass a fresh reasoned order within four weeks explaining why the petitioner's reply was rejected.

Kavita J. Thakur Vs Konkan Railway… — Pension and Retirement Benefits | Bombay HC (2009)

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mss

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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WRIT PETITION NO. 3371 OF 2009

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Mrs. KAVITA J. THAKUR .. .. PETITIONER Vs. KONKAN RAILWAY CORPORATION LTD. & ORS. .. .. RESPONDENTS

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Mr. Ramesh Ramamurthy for the petitioner Ms. Kiran Bagalia for respondents

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CORAM: SMT. RANJANA DESAI & A. A. SAYED, JJ.

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DATED: 24/8/2009

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ORAL JUDGMENT: (Per Smt. Ranjana Desai, J.)

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Rule. Respondents waive service. By consent of the parties taken up for hearing forthwith.

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In this petition filed under Article 226 of the Constitution of India

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the petitioner has inter alia prayed that the order of termination dated 26/2/2009 which is annexed at Exh.-Q to the petition be declared as bad in law, unsustainable and violative of Articles 20 (2), 21, 14, 16 of the Constitution of India.

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It is necessary to begin with the facts of the case. The case of the petitioner is that on 19/8/2002 she was appointed as ESTM grade III in the Signal and Telecommunication department of the Konkan Railway Corporation Ltd. (“KRCL” for short) on her submitting a certificate that she was a land loser i.e. that is, she was a person whose lands were acquired for the Konkan Railway Project.

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On 1/4/03 the petitioner received a letter of termination under the signature of Chief Personal Officer of KRCL. The services of the petitioner were terminated on the ground that she was not a land loser. The petitioner preferred an appeal to the Managing Director of KRCL. On 8/4/03 the Managing Director set aside the termination letter and directed that the petitioner may be taken back on service.

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It appears that PIL No. 12 of 2008 was filed in this court by one Baban Narkar inter alia making a grievance that persons whose

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lands are in fact acquired are not given employment by the KRCL. The PIL suggested that undeserving persons were appointed by KRCL. On 8/8/08 the Division Bench of this court presided over by the Chief Justice (Shri Swatanter Kumar) passed the following order:

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“In furtherance to our order passed yesterday i.e. 7^th August, 2008 Shri Anurag Mishra, Managing Director of Respondent No. 1 Corporation is present in Court. He assures the Court that he would look into all the cases referred to by the Petitioner in the Petition and take remedial measures, if needed. He further states that he would certainly look into the information given to the Petitioner in reply to a query under R.T.I. Act vide letter dated 16^th April, 2007.

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The Managing Director of Respondent No. 1 Corporation to remain present in Court tomorrow, 8^th

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August, 2008 at 3.00 p.m.

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We see no reason why the request of the Managing Director be not accepted. He further states that he would look into all the matters and would pass appropriate orders, wherever necessary and would ensure that ineligible persons are not given any benefit while the genuine applicants are given their due under the Scheme of the Government which was declared as a social welfare scheme.

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In view of the statement made by the Managing Director, nothing survives in the Public Interest Litigation and the same is disposed of. The Managing Director shall comply with the orders of the Court and shall submit a report to the Court within three months from today.

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Public Interest Litigation disposed

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of. No order as to costs.”

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It may be noted here that the petitioner was not a party to this petition. It appears that thereafter the petitioner received a show cause notice dated 25/9/08. The show cause notice stated that the land loser certificate furnished by the petitioner is not certified by the Chief Engineer of KRCL; that the land does not fall within the jurisdiction of the Konkan Railway and that the cancellation of termination notice order issued by the then Managing Director was ultra-vires and was revoked without prejudice. The petitioner was asked to show cause as to why her services should not be terminated from 10^th day of receipt of the show cause notice. Learned counsel for the petitioner informed us that on receipt of the show cause notice on 25/9/08, the petitioner addressed letter dated 3/10/08 to the Chief Personal Officer of KRCL and asked for time to file a reply. Copy of the said letter is annexed to the petition at Exhibit-J. However, the petitioner was not given time to submit a reply. On 3/10/08 the Chief Personal Officer addressed letter to the petitioner stating that request for additional time could not be considered. On 7/10/2008 KRCL terminated the petitioner’s services. Thus the services came to be terminated without there

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being any reply of the petitioner on record. The petitioner, therefore, filed Writ Petition No. 7257 of 2008 in this court. A grievance was made that KRCL did not wait for the reply of the petitioner and the order of termination was passed in undue haste. It was urged that there was a violation of the principles of natural justice. Learned counsel for KRCL made a statement on instructions from the Law Officer, who was present in the court that the petitioner would be granted one week’s time to file a reply to the show cause notice and if such a reply is filed a fresh order would be passed and until then the impugned order would be kept in abeyance. He further stated that if reply is not filed within one week from the date of the order then the order challenged in the petition shall stand revived automatically. The Division Bench, therefore, disposed of the writ petition by observing that in the event the reply to the show cause notice is found to be satisfactory by the concerned authorities, the order will stand revoked or a fresh order may be passed by the respondents, in accordance with law. The Division Bench further observed that in the event of default by the petitioner, the benefit accruing from this order shall be deemed to have been withdrawn.

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Thereafter within the time frame of one week the petitioner filed

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a detailed reply dated 11/12/2008. The reply ran into as many as 17 pages and contained 34 paragraphs. To the reply the petitioner had annexed several documents in support of her case. After considering this reply the Chief Personal Officer, KRCL vide his letter dated 26/2/09 observed as under:

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“On considering the facts on records and your

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statements during the personal hearing, the undersigned has come to the conclusion that the show cause notice issued to you on 25/09/2008 stands good and your services are terminated with immediate effect i.e. from 26/02/2009 (AN).”

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It is this letter/order which is challenged in this petition.

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We have heard at some length, learned counsel for the petitioner and learned counsel for respondent 1 KRCL.

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The basic contention of learned counsel for the petitioner is that order dated 26/2/09 does not reflect any application of mind of the Chief Personal Officer. It is a cryptic order. Learned counsel

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submitted that by order dated 5/12/08 the Division Bench had directed KRCL to pass a fresh order. He submitted that passing of fresh order was not a mere formality. He submitted that inasmuch as no reasons are given in the impugned order, it deserves to be set aside.

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Ms. Bagalia, learned counsel for respondent 1 KRCL on the other hand submitted that no interference is necessary with the impugned order. She submitted that by order dated 5/12/08 the Division Bench had not directed the KRCL to reconsider the entire issue again. She submitted that the case of the petitioner has on more than one occasion been considered by the KRCL. Her claim that land was acquired for Konkan Railway Project is totally incorrect. Learned counsel pointed out that the lands were acquired in the year 1978 when KRCL was not even born. Learned counsel pointed out that the petitioner is placing reliance on the averments made in the notice issued by Special Land Acquisition Officer under Section 4 of the Land Acquisition Act stating that a plan of the said lands is available for inspection at the office of the Special Land Acquisition Officer, Konkan Railway Project, Pen, during office hours. Learned counsel submitted that the words ‘Konkan Railway Project’ are very

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loosely used. Since KRCL was not even in existence at that time there was no question of the project being project of KRCL and, therefore, the petitioner cannot draw any support from this averment. She submitted that no case is made out for interference with the impugned order by the petitioner and the petition may be dismissed.

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We find force in the submissions of learned counsel for the petitioner. We are of the opinion that it was necessary for KRCL to pass a reasoned order. It is pertinent to note that the earlier order dated 17/10/08 was passed without giving an opportunity to the petitioner to file a reply to the show cause notice. Her request for time was rejected. At that stage no personal hearing was also given. It is against the backdrop of these facts that the First Court recorded the statement of learned counsel for KRCL that a fresh order would be passed. The circumstances under which the First Court passed the order clearly indicate that KRCL was expected to consider the petitioners reply in its proper perspective and pass a reasoned order. We have already noted that the petitioner has filed a detailed reply . There are annexures to it. Such a reply needed to be dealt with properly. Reasons indicate application of mind and introduce transparency. Looking to the nature of contentions raised by the

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petitioner it was necessary for the Chief Personal Officer to give reasons as to why he was rejecting those contentions. At least at some stage the grievance of the petitioner must be properly dealt with by KRCL after taking into account her case. That has not been done in this case.

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In the circumstances, we direct the Chief Personal Officer to pass a fresh order giving reasons as to why he has rejected the reply to the show cause notice filed by the petitioner. The entire exercise may be completed by him within a period of four weeks from the date of receipt of this order by him. It is also necessary for us to note the statement made by Ms. Bagalia that the petitioner has already handed over charge on 26/2/09.

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We make it clear that, we have not expressed any opinion on the merits of the case of either the petitioner or the respondents and, therefore, there is no question of considering the prayer of re-instatement. Needless to say that if the petitioner is aggrieved by the reasons given by the Chief Personal Officer it will be open to her to challenge the order in accordance with law. In case the Chief Personal Officer after perusing the reply and the annexures thereto

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forms an opinion in favour of the petitioner he is free to pass such order and in that event the fresh order shall supersede the earlier order dated 26/2/2009 not otherwise.

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All contentions of both sides are kept open.

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Petition is disposed of in the aforestated terms.

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(Smt. Ranjana Desai, J.)

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(A. A. Sayed, J.)

Kavita J. Thakur v. Konkan Railway Corporation Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Kavita J. Thakur v. Konkan Railway Corporation Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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