High Court Patna High Court

The Bihar State Hydro Electric vs Yogesh Kumar Labh on 8 September, 2008

Patna High Court
The Bihar State Hydro Electric vs Yogesh Kumar Labh on 8 September, 2008
Author: Barin Ghosh
                   Letters Patent Appeal No.324 OF 2001

              Against the judgment and order dated 13th October 1998
              passed in C.W.J.C.No. 3267 of 1990

        THE BIHAR STATE HYDRO ELECTRIC-------------------Appellant.
                                           Versus
        YOGESH KUMAR LABH------------------------------------Respondents.
                                -----

For the appellant : Mr. Shyama Prasad Mukherji,
Sr. Advocate.

M/s. Shanti Pratap,Adv.

Mr.O.P.Agrawal,Adv.

For the Respondents: M/s. Sujeet Kumar Sinha
Indu Bhushan Pandey,Advs.

PRESENT
THE HON’BLE MR. JUSTICE BARIN GHOSH

THE HON’BLE MR. JUSTICE CHANDRA MOHAN PRASAD

Barin Ghosh There is no dispute that the writ-petitioner
&
C.M.Prasad,JJ respondent was not an employee of the appellant, he was a

deputanist. His parent Department was Small Industries

Service Institute, a Central Government establishment.

There is also no dispute that it was the appellant who

requested the writ-petitioner to give consent for absorption

in the appellant in the post of Assistant Manager(Accounts)

in public interest. The writ-petitioner respondent gave his

consent to the proposal, subject to counting his service as

an employee of the Central Government for the purpose of

settlement of his pension. The appellant approached the

Central Government for its consent for absorption of the
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writ-petitioner in the appellant in the post of Assistant

Manager (Accounts) in public interest. The Central

Government on the other hand asked the appellant to return

the writ-petitioner to his parent Organization. In the mean

time, the Board of Directors of the appellant approved the

proposal for absorption of the writ-petitioner in the post of

Assistant Manager (Accounts). The deputation of the writ-

petitioner expired on 7th September 1987. Despite such

expiry, the writ-petitioner was not returned to his parent

Organization. In the mean time on 14th August 1987, once

again the appellant approached the Central Government to

approve permanent absorption of the writ-petitioner in the

appellant. Ultimately on 19th July 1988 the Central

Government approved absorption of the writ-petitioner in

the appellant in public interest but in the post of Accountant.

On 21st July 1989, the writ-petitioner was informed about

his absorption in the post of Accountant. This resulted in

filing of the writ petition. The same has been allowed by the

judgment and order under appeal and, hence, the present

appeal.

It was the appellant who offered the writ-petitioner
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the post of Assistant Manager (Accounts) upon his

absorption in the appellant which offer was accepted. The

appellant at no point of time offered the post of

Accountant to the writ-petitioner, upon his absorption in the

appellant. In the result, merely on the basis of approval of

the Central Government for absorption of the writ-

petitioner as Accountant in the appellant in public interest,

the appellant could not absorb the writ petitioner in the post

of Accountant.

An employment is a contract and remains a

contract all throughout. Unless the employee agrees, he

cannot be absorbed in the post where he has been deputed.

Neither the original employer, nor the subsequent employer

can compel an employee to work in a post in which the

employee concern did not agree to work.

The appellant having had offered the post of

Assistant Manager (Accounts) to the writ-petitioner and the

same having been accepted by the writ-petitioner, there was

no just reason for the appellant not to appoint the writ

petitioner upon his absorption in the appellant in the post of

Assistant Manager (Accounts). The same having been
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declared by the judgment and order under appeal, there is no

scope of interference. The appeal fails and the same is

dismissed.

Patna High Court,                             (Barin Ghosh,J)
 Dd. 8th Sept.2008
  N.A.F.R. / Jay/
                                               (C.M.Prasad,J)