A.K. Tripathi, J.
1. This writ application has been filed by petitioner who was the former employee of the respondent Indian Oil Corporation (hereinafter referred to as the I.O.C.), Barauni Refinery challenging the award dated 25.9.1995 passed in Reference Case No. 80/1992. The Industrial Tribunal has upheld the termination order passed against the petitioner to be legal and valid. Petitioner is also seeking the quashing of order dated 31.8.1987 passed by respondent No. 3 by virtue of which his service was terminated with effect from 13.8.1987.
2. Petitioner was appointed as an assistant wireman on daily wage basis way back on 9.1.1960. Subsequently he was given a pay scale of Rs. 35-70/- along with other allowances vide office order dated 25.9.1960. On completion of his probation period he was appointed as a Fitter (Electrical) on 20.8.1964. Petitioner was holding the post on permanent basis as Technical Grade-II (Electrical) when on 7.5.1985 he suffered serious injury while on duty and working on high tension line in the Refinery Township of Barauni. He was taken to I.O.C. hospital and thereafter referred to Kurji Holi Family Hospital. He had to undergo surgery and was also treated by certain specialist on due reference and recommendation made in this regard. Looking at the accident, the injury and the physical condition of the petitioner he was granted various kind of leave to help him to recover and over come the trauma of the accident.
3. Vide letter dated 22.6.1987 the petitioner was advised to appear before the medical board for examination of his disability caused due to accident on duty. Petitioner who was examined by Chief Medical Officer of I.O.C. Hospital with some of his subordinates was declared permanently and totally disabled. Based on the medical opinion vide letter dated 31.8.1987 of the Deputy Manager Personnel (respondent No. 3) the service of the petitioner was terminated with effect from 13.8.1987. Letter of termination is annexure-6 to the writ application. Petitioner protested against the arbitrary decision on many grounds, including the fact that no proper medical board was constituted, no opportunity of hearing was afforded, the order of termination was from a retrospective date and even the so called provision of the Standing Order had not been properly complied. Subsequently vide a corrigendum contained in annexure-11 issued in furtherance to annexure-6 the respondents decided to pay him two months more wages of the last pay drawn and some difference in lump sum compensation.
4. Petitioner's case against arbitrary decision of the respondent corporation was taken up by the Registered Trade Union and an industrial dispute came to be raised. Reference thereafter was made to the Industrial Tribunal with a reference whether the action of the Management of IOC Barauni Oil Refinery, Barauni, in terminating the services of Rabindra Nath Mishra, Technician Grade-B with effect from 13.8.1987 is legal and justified? If not, to what relief the workman is entitled to?
5. The reference in question was registered as Reference Case No. 80/1992 and the same came to be answered vide order dated 25.9.1995 which is annexure-13 to the writ application and has been challenged in the present writ application. Industrial Tribunal came to an opinion that the action of the management in terminating the service of the petitioner was legal and justified.
6. Learned Senior counsel appearing on behalf of the petitioner submits that the award contained in annexure-13 is wholly erroneous and without application of mind to the issue in this regard.
7. Discharge and termination of service of an employee of the Corporation is guided by Standing Order 17. The same is reproduced below for ready reference:
Discharge and termination of service:
S.O. No. 17: Except as may be specifically provided in the contract of service, the Management may terminate service of an employee by assigning reasons after giving the following notice or on payment of wages in lieu of such notice:
(a) In the case of permanent
(b) In the case of temporary
having less than one year of
continuous service as defined
in Section 2(eee) of the
Industrial Dispute Act, 1947,
14 days' notice, if their
services are terminated
before the expiry of the
specified period of their
appointment or posts held by
8. There is no other provision so far as the termination is concerned, more so when the termination is not as a measure of penalty for misconduct. In fact, Standing Order No. 22 II (d) categorically lays down the following termination of service of an employee: (i) on medical grounds, or (ii) on account of retrenchment, or (iii) during or at the end of the period of his probation in accordance with the terms of his appointment, or (iv) if such employee has been employed on temporary basis.
9. Contention of the petitioner is that the provision of Standing Order 17 of giving notice of three months' or salary in lieu of notice, as the petitioner was a permanent employee, was not followed. If that is so then the authority or power given to the Management under S.O 17 had not been properly exercised. This fact would be obvious from annexures-6 and 11.
10. Learned Counsel appearing on behalf of the respondent corporation does not dispute that the power for termination against the petitioner had been exercised under S.O. 17 but he has not been able to satisfy the Court from the material available on record that the requirement of three months' notice or three months' pay was met by the respondents. Though he tried to justify the order of termination by saying that annexure-6 and annexure-11 should be read in conjunction because vide annexure-6 he was given one month wages in lieu of notice and vide annexure-11 two months' more salary was paid to the petitioner. Annexure-6 is dated 31st August, 1987 and annexure-11 is dated 7th December, 1987. He further submits that Tribunal has held that all compensation to which the petitioner was entitled to had been fairly given by the Corporation and in view of the above finding the Tribunal had rightly upheld the termination order.
11. The Court has gone through the impugned orders but it has to keep in mind the fact whether the management has followed the Standing order, which is binding on them in true letter and spirit. It is well settled by the Hon'ble Supreme Court as well as a Division bench decision of this Court that non-compliance of the period of notice or salary in lieu of notice goes to the root of the matter and the order of termination exercised has to be set aside. In this regard reference is made to the case of Rana Abhay Singh v. The Hon'ble High Court of Judicature at Patna reported in PLJR 2006 (3) 400. Paragraphs 33 to 36 of the decision are relevant for this case which are reproduced herein below:
Case Law on Statutory Notice
33. In Vijoy Narain Jha v. The State of Bihar and Ors. 2000 (1) PLJR 1016, a Division Bench of this Court while interpreting the same provision of Rule 74(b)(ii) of the Bihar Code, has held, that the said provisions are mandatory and non-observance and non-implementation of the said provisions shall violate and vitiate the order of compulsory retirement against the Government servant.
34. A detailed discussion in similar case against the Judicial Officer has been, succinctly, highlighted in the said decision in paragraph 12. The Division Bench has, also, considered and relied on the following decision of the Hon'ble Apex Court Chief General Manager, State Bank of India v. Suresh Chandra Behera : (1995)IILLJ852SC and Madan Mohan Choudhary v. State of Bihar : (1999)IILLJ229SC . This decision was rendered by the Division Bench on a similar point in a writ petition, on 14.12.1999, whereas, in Krishna Mohan Srivastava v. The State of Bihar 2000 (1) PLJR 649, was decided, on 17.12.1999, on a principle as to whether for non-compliance of the said provisions of Rule 74(b)(ii) of the Bihar Code, order of compulsory retirement shall stand vitiated or not, the Division Bench has agreed that it shall vitiate but there was difference in so as issue of substantial compliance of the said provision, in the light of the factual profile of the case on hand with them at the relevant time, was concerned, as the cheque was given which could not be realized on the date when the incumbent was sent home by virtue of the compulsory retirement.
35. In a similar matter, in the case of L.C. Bawa v. V.K. Kapoor and Anr. 1987 LAB. I.C. 1878, a Division Bench of the Delhi High Court had occasion to interpret and deal with the similar rule provision contained in the Fundamental Rules, Rule 56(j), read with Article 309 of the Constitution of India. It has been held that Rule 56(j) of the Fundamental Rules makes it clear that the order of premature-compulsory retirement of a Government servant can be passed only by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, which means that the giving of notice has to be at least three months prior to the passing of such an order or in the alternative in lieu of such notice three months' pay and allowances have to be paid to the official sought to be retired prematurely either prior to the passing of such an order or at least simultaneously with the passing of such an order and if this is not done, the order of premature compulsory retirement would be invalid. It has been further propounded that where the payment of three months' pay and allowances was made by giving the official a cheque along with the order of compulsory retirement and the cheque was dishonored by the bank on presentation for its being undated, the issue of the cheque would be tantamount to non-payment which would render the order of retirement invalid.
36. Even the subsequent rectification of the cheque by putting a date would not cure the defect because the payment of three months' pay and allowances is mandated to be made before or simultaneously with the passing of the order of premature compulsory retirement. This view has been held upon consideration of several decisions including some decisions of the Hon'ble Apex Court, as noticed by us from the observations made in paragraphs-4 and 5 of the judgment.
12. In view of the stated position in law the Court is constrained to come to the conclusion that the order of termination of the petitioner contained in annexure-6 dated 31st August, 1987 was not in consonance with the law and the decision rendered by the Industrial Tribunal contained in annexure-13 dated 25.9.1995 has not considered this aspect of the matter which goes to the root of the issue and as such they cannot be sustained. Both, annexures 6 and 13 are quashed and the writ application is allowed.