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Judgment
Sandeep Sharma, J.
1.Being aggrieved and dissatisfied with the impugned order dated 24.5.2017 (Annexure P-13), passed by the Sub Divisional Magistrate, Chamba,
District Chamba, Himachal Pradesh (for short ‘SDM’), whereby learned ‘SDM’ while dealing with the application having been filed by
respondent No.2, ordered petitioner-Company to engage respondent No.2 against any vacant post within a period of 10 days from the date of passing
of the order, petitioner-Company has approached this Court by way of instant proceedings filed under Section 227 of the Constitution of India, praying
therein to set-aside and quash the impugned order passed by the learned ‘SDM’.
Necessary facts, as emerge from the record are that respondent No.2, filed an application before the learned ‘SDM’ Chamba, District
Chamba, Himachal Pradesh on 31.3.2015, seeking therein, directions to the petitioner-Company to provide him employment in lieu of the land acquired
by the petitioner-Company for the construction of power project. Learned ‘SDM’ having taken note of the averments contained in the
application, directed the petitioner-Company to offer appointment to the applicant against any vacant post. In the aforesaid background, petitioner-
Company has approached this Court.
Mr. K.D.Shreedhar, learned Senior Advocate, duly assisted by the Mr. Sameer Thakur, Advocate, representing the petitioner- Company, while
inviting attention of this Court to Memorandum of Understanding/ implementation agreement (Annexure P-2), arrived inter se petitioner-Company and
State of Himachal Pradesh, contended that in terms of clause 10.2, of the agreement, Company is/was under obligation to provide employment to one
member of each of the displaced families or adversely affected persons on account of the acquisition of land for the construction of project. He
further stated that after completion of the construction of project, petitioner-Company in terms of clause 10.2, is/was only required to give preference
in employment to members of displaced families for operation and maintenance of the project and not to the persons or families whose some part of
the land was acquired and they were not wholly displaced. It would be profitable to reproduce clause 10.2 of the agreement hereinbelow:- “ The
Company shall provide employment to one member of each of the displaced families or adversely affected as a result of the acquisition of land for the
project, as covered in the Rehabilitation Plan referred to in paragraph 10.1 above, during the construction of the Project. During the Operation &
Maintenance stage the Company shall give preference in employment to members of displaced families.â€
Mr. Shreedhar, further contended that learned ‘SDM’ had no authority, whatsoever to entertain the application made by respondent No.2,
because in terms of Memorandum of Understanding/ Implementation Agreement (Annexure P-2), learned ‘SDM’ has no authority to
adjudicate/decide the contravene, if any, of the terms and conditions by either of the parties, rather in this regard matter is required to be referred to
the Arbitration in terms of clause 19.1 of the Memorandum of Understanding/ Implementation Agreement. It would be profitable to reproduce clause
19.1 hereinbelow:- “ Any dispute or difference whatsoever arising between the parties to the agreement out of or relating to the construction,
meaning, scope, operation or effect of this contract or the validity of the breach thereof shall be settled by arbitrator in accordance with the provisions
of the Arbitration and Conciliation Act, 1996 and the award thereunder shall be final and binding upon the parties, subject to legal remedies available
under the law.â€
Mr. K.D.Shreedhar, further submitted that as per clause 12 of the Memorandum of Understanding/ Implementation Agreement, employment is
required to be offered to Himachalis subject to availability and suitability and at present majority of staff is from Himachal, as is evident from
Proforma for Inspection of Hydro Electric Project and Industrial Unit ( available at page 58). Mr. Shreedhar, further contended that
findings/observations made by learned ‘SDM’ that no record was made available is contrary to the factual position because entire record
suggestive of the fact that only Himachalis are being employed in the project was made available to the learned ‘SDM’ during the proceedings
initiated at the behest of respondent No.2. While inviting attention of this Court to communication, dated 20.11.2007 (Annexure P-5), Mr. Shreedhar,
contended that the applicant/respondent No.2 was offered appointment on account of acquisition of his land and he was discharging his duties till
commissioning of project in the year, 2008 and as such, findings to the contrary recorded by the learned ‘SDM’, is not sustainable and deserves
to be quashed and set-aside. While inviting attention of this Court to the material placed on record, Mr. Shreedhar, contended that as per periodical
report submitted by the authority concerned, it is quite apparent that conditions contained in clause 12.1 of the implementation agreement, employment
is being given to Himachalis not to the outsiders.
Ms. Shama Khan, learned counsel representing respondent No.2, while refuting aforesaid submissions having been made by learned counsel
representing the petitioner-Company, contended that the petitioner-Company taking undue advantage of ignorance of respondent No.2, exploited him
by not giving him appointment in terms of Memorandum of Understanding. She further contended that respondent No.2 is a poor man and has a family
to support and in case he is not provided employment, great prejudice would be caused to him. She further contended that it is apparent from the
order, passed by the learned ‘SDM’ that terms and conditions contained in Memorandum of Understanding, are being flouted with all impunity
and outsiders are being given preference in the employment by the petitioner-Company and as such, there is no illegality and infirmity in the impugned
order passed by the learned ‘SDM’.
Having heard learned counsel for the parties and perused the record, this Court finds from the record that clause 10.2 i.e.
Rehabilitation/Resettlement provides for offering employment to one member of each of the displaced families or adversely affected on account of the
acquisition of land for the project, but careful perusal of clause 10.2, which is reproduced hereinabove, suggests that such employment shall be
provided during the construction of the project, whereafter during operation and maintenance stage Company shall give preference in employment to
the members of wholly displaced families. Bare reading of clause 10.2, suggests that members of displaced families or adversely affected on account
of acquisition of land would be provided work/employment during the construction of project not beyond that. Clause 10.2 further suggests that during
operation and maintenance, Company is only under obligation to give preference to the members of the displaced families. In the case at hand, as is
evident from the record, land measuring 00-14-00 biswa of respondent No.2 came to be acquired for construction of power project. It is not in dispute
that respondent No.2 received compensation on account of acquisition of his aforesaid land. Mr. Shreedhar, stated that in case entire land of
respondent No.2 is/was acquired, recommendation from the Deputy Commissioner for offering him permanent employment is required, but in the case
at hand, no such recommendation ever came from Deputy Commissioner, meaning thereby, his total land was not acquired, rather partial land came to
be acquired for construction of project. Material available on record i.e. jamabandi filed by the respondent No.2 alongwith the reply further suggest
that some land had come to the share of father of respondent No.2, but that may not be sufficient to conclude that entire land belonging to respondent
No.2 or his father was acquired by the petitioner for construction of power project, making petitioner eligible for permanent employment in terms of
clause 10.2 of Memorandum of Understanding.
Another question which needs to be determined in the instant proceedings is whether learned ‘SDM’, Chamba in terms of Memorandum of
Understanding arrived inter se the petitioner and State of Himachal Pradesh, is/was competent to order/direct the Company to engage the applicant
against any vacant post or not? Though, there is no specific authority defined/prescribed under the Implementation agreement, where the aggrieved
party can lodge/initiate complaint for violation of the conditions, especially clause 10, but if agreement is read in its entirety it can be concluded that
complaint, if any, for violation of the terms and conditions contained in the implementation agreement can be made to State of Himachal Pradesh or
Him Urja, who can refer the matter to arbitration in terms of clause 19.1 of implementation agreement. In the case at hand, ‘SDM’ simply
having received complaint proceeded to issue directions to the petitioner Company to offer appointment to respondent No.2, who admittedly remained
on the rolls of the petitioner-Company till the commissioning of the project. It is not understood that on what basis learned ‘SDM’ arrived at a
conclusion that petitioner Company has violated the terms and conditions of ‘MOU’ by not providing 70% employment to Himachalis because
as has been taken not above, periodical inspection report placed on record suggests that more than 90% employees of the petitioner Company are
from Himachal Pradesh.
Consequently, in view of the detailed discussion made hereinabove, this court has no hesitation to conclude that learned ‘SDM’ by
entertaining the application filed on behalf of respondent No.2 not only exceeded its jurisdiction, rather without any authority issued directions to the
petitioner-Company to offer appointment to respondent No.2, who in fact was provided employment, as is evident from the record in terms of clause
10.2, which only talks about employment during the construction work. Had learned ‘SDM’ bothered to peruse the implementation agreement in
its entirety, probably he would not proceeded to pass the impugned order. Accordingly, the impugned order is quashed and set-aside.
Before parting, this Court wish to observe that in case any post is lying vacant in the petitioner Company, first preference shall be given to
respondent No.2. Accordingly, the present petition stands disposed of alongwith pending application(s), if any.