Navneet Verma, Accounts Executive, Haryana Bureau of Public Administration, Chandigarh vs State of Haryana and others

T.H.B. Chalapathi, J.—The petitioner was interviewed, selected and appointed as Accounts Executive in the Haryana Bureau of Public Enterprises (hereinafter referred to as "HBPE") on 16.7.1993. While so, his service were terminated on 31.12.1994 on the ground that the post of Accounts Executive has been abolished.

Invoking the jurisdiction of this court under Article 226 of the Constitution of India, the petitioner filed this writ petition challenging the order of termination. According to him, the abolition of post of Accounts Executive is not done in good faith and it was done only for the purpose of terminating his services because of certain allegations and counter-allegations made by the petitioner and Financial Adviser of the Bureau (who was arrayed as 3rd respondent in the writ petition) against each other.

The only point to be considered in this writ petition is whether the abolition of the post is done in good faith. Before taking up this matter, it is useful to refer to the averments made in the writ petition which according to the petitioner led to the abolition of the post and the consequential termination of his services. According to the petitioner, the 3rd respondent applied for the post of Financial Adviser. Even though she did not fulfil the prescribed requirement of 3 years experience after doing Chartered Accountancy, she had been appointed as Financial Adviser and the petitioner who was appointed as Accounts Executive was required to report to the 3rd respondent and according to the petitioner, he was completely disillusioned to find that her only interest was in regard to her personal errands much more than official work and she wanted the petitioner to undertake the same as her personal staff. He further averred that the petitioner did carry out a few such petty errands and he made no secret of his resentment about the treatment meted out to him. When the petitioner brought these facts to the notice of the 2nd respondents, the Member Secretary, HBPE, he wanted the petitioner to resign the job. Further the 3rd respondent hardened and she was insulting and humiliating the petitioner even in the presence of his own subordinates and the petitioner was finding it hard to discharge his public duties efficiently and effectively. The petitioner received a communication which is enclosed as Annexure P-5 casting serious aspersion even on his professional competence and it also contained a veil threat of disciplinary action against the petitioner. Respondents 2 and 3 seemed to have different attitude and started planning to eliminate the petitioner. The petitioner, having no option made a representation on 26.7.1994 to the Chief Minister of Haryana vide Annexure P.6. The 3rd respondent lodged a totally false and baseless complaint against the petitioner to the Member Secretary. The 2nd respondent appointed Shri S. S. Malhotra, Personal Secretary to the Chairman to conduct a preliminary inquiry into the allegations made by the 3rd respondent in her complaint. Thereafter, by an office order dated 3.8.1994, the petitioner was made to report to the Management Consultant instead of respondent No. 3. it has been further stipulated in the said office order that in the discharge of her functions, 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 the Inquiry Officer advised the petitioner to approach the 2nd respondent in this regard. But the 2nd respondent declined to supply the material required by the petitioner vide Annexure P.10. 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 have been dispensed with consequent upon the abolition of the post of the Accounts Executives vide Annexure P-12.

According to the petitioner, there is no justification for abolition of the posts of Accounts Executives and it was done with a malafide intention to dispense with the services of the petitioner without any basis. There is no material to show that the post of Accounts Executive is not required. In fact, two posts of Accounts Executives were advertised, but only one post was filled up by appointing the petitioner. Thus according to the petitioner the post was not abolished in good faith, but this is a device to weed out the petitioner from service. Therefore, the order of termination of services of the petitioner on the ground of abolition of post is liable to be set aside.

In the written statement filed by respondents 1 to 3, it is averred that the abolition of posts of Accounts Executives was not done with malafide intention or extraneous reasons. It is further averred 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 viz-a-viz 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 on even without the two posts of Accounts Executives and 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. Moreover, the Accountants can send their case directly to the Financial Adviser, who was the head of the financial wing in giving advice regarding financial affairs. Consequently, two posts of Accounts Executives were abolished and the services of the petitioner were terminated as they are no longer required.

It is also denied that the Member Secretary, HBPE was pressing the petitioner to leave his job. It is further averred that the petitioner is requesting for his appointment to the post of Financial Adviser in place of 3rd respondent. That itself shows that the petitioner was not interested in working on the post of Accounts Executive and he made unfounded allegations against respondents 2 and 3. It is also admitted that a complaint was received from the 3rd respondent regarding misbehaviour by the petitioner. A preliminary inquiry was conducted into the allegations made in the complaint by the 3rd respondent. However, giving benefit of doubt to the petitioner, no action was taken and the preliminary inquiry has no relevance with regard the decision taken on the abolition of the posts. The matter regarding the retention of the post of Accounts Executive was considered at the meeting of HBPE and a decision was taken to abolish the said post after obtaining permission of the Government. Consequently, the services of the petitioner were terminated and there are no ground warranting interference with the same. Though some personal allegations were made against the Financial Adviser and she has been impleaded as 3rd respondent in the writ petition, no separate written statement has been filed by her.

Thus it is clear from the averments made in the writ petition that according to the petitioner the post of Account Executive was abolished only to terminate his services, whereas it is the case of the respondents that the post was abolished not because a complaint was made against the petitioner but because that the same was not required. No material has been placed before the Court that there was no work for Accounts Executives. I called for the files and have gone through them. The files produced before me clearly show that both the petitioner and the 3rd respondents 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 3rd 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 Advisor 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 mis-behaved with his boss Smt. Walia, Financial Adviser on 28.7.1994 at 3 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 Executive and they can be abolished without affecting the work of Bureau. The said note was circulated to the Personal Advisor by the Research Officer, HBPE.

It may be mentioned here that the work of the Bureau was distributed among the Management Consultant, Personal Advisor, Financial Adviser and Accounts Executive by an office order dated 5th August, 1994. It was 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 Executives in HBPE by a letter written by the Member Secretary on 9th November, 1994. There was no separate order abolishing the post, but Annexure P-12 has been issued according sanction to abolition of two temporary posts of Accounts Executive and consequently terminating the services of the petitioner.

It is also pertinent to note that the petitioner made a representation to the Chief Minister on 26.7.1994 i.e. two days prior to the complaint made by the 3rd respondent. On that, the Principal Secretary to Chief Minister called for the report. It is also worthwhile to note that the Personal Advisor put up a note to the Member Secretary HBPE on 29.7.1994 immediately after the Financial Adviser gave a complaint on 28.7.1994. It is interesting to note that the Personal Advisor did not suggest the abolition of the posts on 29.7.1994. In fact, in his note the Personal Advisor felt that it was advisable that the conduct of both the officers should be probed into by appointing an Inquiry Officer. He also suggested that the work of both the officers should be distributed in such a way that there should not be any controversy and problem of egoism in between them. From his note, it is clear that there are 49 Public Enterprises on review for monitoring work and these Public Enterprises can be divided between these officers and the work of the Accounts Executive can be routed through the Management Consultant and finally to the Member Secretary of HBPE. It is in pursuance of this note, the work was distributed by an Office Memorandum dated 5th August, 1994. In a letter dated 16th August, 1994 to the Principal Secretary to Chief Minister, the Member Secretary referred his suggestion to the petitioner to join Private Sector if he is not able to cope up with the environment of Govt. Department and undue high expectations expected from the Government job by using his own discretion/choice. He further stated in that letter that "as a matter of fact being a temporary employee, his services could have been terminated at any time without assigning any reason. However, sincere endeavours have been made to change his (petitioner''s) temperament so that he continues to work in a State Government set up in a smooth manner without any insubordination. His abnormal behaviour could be ascertained from the Chairman, HBPE with whom there has been interaction during a couple of review meetings of various Boards and Corporations". If the behaviour of the petitioner is such that it was not possible to continue in the services, his services could have been terminated either by passing an order of termination simplicitor or holding a departmental inquiry against the allegations levelled against him and further action against the petitioner has been dropped on the basis of the fact-finding inquiry conducted by the Personal Secretary to Chairman and the steps for abolition of the posts of Accounts Executives had seen the light of the day much later and ultimately resulted in passing the order Annexure P-12.

This, 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, Accountant 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 Executives was not mentioned. Therefore, it cannot be said that the abolition of the posts was done in good faith. In this context, it is useful to refer to the decision of the Apex Court in M. Ramanatha Pillai Vs. The State of Kerala and Another, , wherein it has been observed as follows :-

"A post may be abolished in good 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)."

The Supreme Court in State of Haryana v. Des Raj Sangar and Anr. 1976(1) S.L.R. 191 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 presence 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."

Thus it is clear that the Court can lift the veil and see whether the abolition of the post 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 posts of Accounts Executives has not been in good faith. But only intended to get rid of the petitioner.

In view of the above discussion, I am of the opinion that the writ petition deserves to be allowed. Accordingly, I allow the writ petition. The order Annexure P-12 dated 30.12.1994 abolishing the posts of Accounts Executives and consequential termination of services of the petitioner is hereby set aside. The petitioner shall be reinstated in service forthwith with all consequential benefits. However, it is 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 a law and the rules. There will however, be no order as to costs.

Petition allowed.