JUDGMENT
Sanjay Kishan Kaul, J.
1. The petitioner was employed as a Welfare Officer
with respondent No. 4 on 1.3.1993 and the services of the
petitioner were terminated. The petitioner is aggrieved by
the termination of his services.
2. The termination letter is dated 22.11.2001
(Annexure P2) which is a simpliciter termination in terms of
para 5 of the letter of appointment dated 2.3.1993. Para 5
of the letter of appointment 2.3.1993 is as under :
“After confirmation, two months’
notice on either side shall be required
for the termination of this arrangement.
The Management can, however, dispense with
your services any time by paying you two
months salary in lieu of notice.”
3. In view of the aforesaid fact there is no doubt
that termination is in terms of the appointment letter.
Learned counsel for the petitioner, however, contended that
the terms of his appointment cannot over ride the provisions
of the Factories Act 1948 and the rules made there under
being the Delhi Factories Rules 1956. Learned counsel for
the petitioner drew my attention to the provisions of Rule
76-A dealing with welfare officers. The relevant Sub-rule
4B of the said rule is as under :
“(b) The conditions of service of a
Welfare Officer shall be the same as of
other members of the staff of
corresponding status in the factory,
provided that no punishment shall be
inflicted on a Welfare Officer without
obtaining the prior approval of the Chief
Commissioner.”
4. Thus the learned counsel for the petitioner
contended that the services could not be terminated except
in accordance with the said sub-rule after obtaining the
prior approval of the Chief Commissioner.
5. Learned senior counsel for respondent on the other
hand has referred to the judgment of learned Single Judge of
this Court in CW 1396/1988 decided on 11.3.1998 S.N. Saxena
v. D.C.M. where this very question has been considered.
In the light of dictum laid down by the Supreme court in the
case of Associated Cement Companies Ltd. v. P.N. Sharma
and Anr., .
6. In S.N. Saxena case (Supra) an issue was raised
that though the order of termination was a simpliciter order
of discharge, the same was only a camouflage and on a proper
enquiry, it will be found that the dismissal amounts to a
punishment. The learned Single Judge referred to the
observations of the Supreme Court on the interpretation of
the rules and came to the conclusion that if a welfare
officer is dismissed without applying for concurrence, he
may make an appeal but only in a case where a punishment has
been imposed. If termination is in terms of the contract of
employment. then such a welfare officer cannot make any
grievance. The conclusion of the learned Single Judge in
para ‘9’ is as under :
“9. The provision in Clause 4
would empower the management to dispense
giving three months’ notice as wad done by
the employer. Therefore, when the
contract of employment provides that the
service of the employee could be dispensed
with the petitioner cannot be heard to
contend that the first respondent lacked
power to pass the order. It is on this
point the dictum laid down by the Supreme
Court would apply to the facts of this
case.”
7. It is further contended by learned counsel for the
respondent that against the said decision Letters Patent
Appeal was preferred being LPA No. 522/1998 which was
dismissed vide order dated 11.7.2001 agreeing with the
interpretation of the learned Single Judge of Sub-rule 4 B
of Rule 76-A of the Delhi Factories Rules, 1950. The
aforesaid decisions are based on the ratio laid down by the
Supreme Court in Associated Cement Companies Ltd.’s case
(supra) as under:
“Mr. Setalvad, however, is right in
contending that the appeal preferred by
respondent No. 1 before respondent No. 2 was
incompetent. Rule 6(6) no doubt enables a
Welfare Officer to make an appeal to the
State Government if punishment has been
imposed upon him contrary to the
requirements of the proviso to Rule 6(3),
without obtaining the concurrence of the
Labour Commissioner. The scheme of the
relevant Rules appears to be that if the
management applies for concurrence, and the
concurrence is not given by the Labour
Commissioner, the management can appeal
under Rule 6(5). If the concurrence is given, of
if a Welfare Officer is dismissed without
applying for concurrence, he may make an
appeal under Rule 6(6); but before such an
appeal can be competent, it must appear that
the punishment mentioned in Clause (v) of
Sub-rule (3) of Rule has been imposed upon
him. In the present case, it is difficult
to hold that any such punishment has been
imposed upon respondent No. 1 All that the
appellant has done in the respondent No. 1 by
virtue of Clause 4 of his terms of appointment.
When respondent No. 1 was appointed a Welfare
Officer by the appellant, the terms of his
fare officer by the appellant, the terms of
his employment were communicated to him by a
letter dated March 2, 1956. Clause 4 of this
communication expressly provided that during
the period of probation, the appellant could
terminated respondent No. 1’s services without
notice, and after confirmation, with one
month’s notice or one month’s salary in lieu
of notice. The order terminating his
services specifically refers to an earlier
letter addressed to him on September
23, 1961. In this letter, the appellant
expressly informed respondent No. 1 that if
he did not proceed to Kymore Cement Works
within the time allowed to him, his services
would stand terminated from september
26, 1961, and he would be paid his salary up
to the 25th September, 1961, as well as one
month’s salary in lieu of notice and other
dues as per Company’s rules. It is thus
clear that in terminating the services of
respondent No. 1, the appellant was merely
exercising its right to put an end to
respondent No. 1’s services with one month’s
salary in lieu of notice; and such an order
cannot be said to amount to any punishment
at all; it is na order of discharge served
by the employer on his employee strictly
within the terms of the employee’s
conditions of service. There is not doubt
that when Rule 6(3)(v) refers to dismissal or
termination of service in any other manner,
it takes in dismissal or termination of
service in any other manner, it takes in
dismissal or termination of service which is
in the nature of a punitive termination of
service. Rule 6(3) makes it clear that
Clauses (1) to (v) refer to punishments which
could be imposed on Welfare Officers by
which could be imposed on Welfare Officers
by the management; and so, before Rule 6(3)(v)
can be invoked by respondent No. 1, it must
be shown that the termination of his
services was in the nature of a punishment.
The termination of respondent No. 1’s
services in terms of Clause 4 of his conditions
of service is no mere than a discharge, and
as such is not a punishment; and so, it is
outside Rule 6(3) altogether. Therefore, we
are satisfied that the appeal preferred by
respondent No. 1 before respondent No. 2 was
not competent under Rule 6(6).”
8. In view of the aforesaid decisions of the learned
Single Judge, of Division Bench and of the Supreme Court,
this issue does not remain open to be agitated by the
petitioner.
9. Learned counsel for the petitioner has already made
a grievance that though initially the services of the
petitioner were dispensed with since it was claimed that
number of persons working have been reduced under 500,
Subsequently an advertisement was issued on 17th January,
2002 in the Hindustan Times (annexure P5) in which the post
of Welfare Officer has been advertised. It is also
contended that the plea of respondent No. 4 that the workers
were below 500 have been found to be false by the concerned
authorities. Assuming the contention of the petitioner is
correct that the whole process was only a ruse to get rid of
petitioner, the fact remains that eh order of termination
is only a simpliciter order of termination and in view of
the judgments discussed above, the petitioner would not be
entitled to any relief.
10. In case the respondents have incorrectly submitted
that the number of persons have been reduced to under 500,
it, is always open to respondent Nos. 1 to 3 to take
appropriate action in accordance with law.
11. In view of the aforesaid the writ petition is
dismissed leaving it open to respondents 1 to 3 to proceed
in accordance with law against respondent No. 4 in case any
violation of the Factories Act or the Factories Rule is
found.
12. Needless to say that the decision in the present
case will not affect the right of the petitioner to avail of
any remedy before the Civil Court in accordance with law.