K.P. Bhandari, J.@mdashRespondent Devi Ram was working as Godown Attendant-cum-Watchman in the Haryana Warehousing Corporation, Gharaonda. His services were dispensed with by the Managing Director vide order dated February 24, 1987. After exhausting the administrative remedies, the plaintiff filed a civil suit in the Court of Sub Judge 1st Class, Karnal for a declaration that the order of termination of his service is illegal, ultra vires and null and void. The Subordinate Judge vide judgment and decree dated June 15, 1990 dismissed the suit.
2. Aggrieved against the aforesaid judgment and decree dated June 15, 1990, the plaintiff filed an appeal in the Court of District Judge Karnal. The District Judge vide judgment and decree dated April 15, 1991 accepted the appeal and declared the order of termination as illegal ultra vires and null and void and directed the reinstatement of the plaintiff. However, the District Judge directed that plaintiff will not be entitled to any back wages as he was gainfully employed during the period he remained out of service.
3. Aggrieved against the aforesaid judgment and decree dated April 15, 1991 passed by the District Judge, Karnal, the Corporation filed an appeal in this Court. Counsel for the Corporation strongly contended that the plaintiff was an employee of a public sector undertaking and fell within the category of a workman. The remedy of the plaintiff, if any, was to a reference to the Labour Court. The counsel for the respondent submitted that the appellant Corporation is a Government undertaking and is a State for the purposes of Article 12 of the Constitution and therefore, it can get a declaratory relief and can get the arbitrary order of termination of service set aside through a Civil Court.
4. I have heard the learned counsel for the parties in great detail.
5. Haryana Ware Housing Corporation is an authority constituted under the Ware Housing Corporation Act of 1962 and the Corporation is constituted by a notification of the Haryana Government and majority of the Directors are also appointed by the Government but of course they are also representative of the Central Government and representative of the Central Ware Housing Corporation. The funds of the Corporation are also substantially supplied by the Government. The Corporation is performing statutory functions and therefore, it is a public sector undertaking and therefore falls within the definition of State for the purposes of Article 12 of the Constitution of India. Normally, the services of a temporary government servant ac-cording to the practice in the Corporation are terminable by one month''s notice but it is stated that at the time of employment according to the terms and conditions mentioned in the letter of appointment (Ex. P.1) the respondent did not disclose that he was previously convicted by a Criminal Court and for non-disclosure of this information his services were dispensed with and he was not even given one month''s salary. It may be seen that respondent was convicted for rash and negligent driving under Sections 279 and 337 of the Indian Penal Code and was released on probation under the Probation of Offenders Act. There is no statutory rule framed by the Corporation that a person who is convicted for such an offence cannot seek employment in the Corporation and nor there was any such thing mentioned in the advertisement when the respondent was taken in the service. On the other hand, according to the instruction of the Haryana Government contained in Manual of Insturctions. of Haryana Government, Part I, at pages 56 and 57, the Government has clarified that in order to rehabilitate the ex-convicts the Government will provide employment in the Government service. In this view of the matter, the termination of services of the petitioner was plainly illegal, unreasonable and capricious and was hit by the provisions of Articles 14 and 16 of the Constitution . The termination of service on such a ground also could not be ordered without affording to the petitioner an opportunity of being heard according to the principles of natural justice. The petitioner admittedly was appointed on October 10, 1985 and his services were terminated on February 24, 1987. He became regular employee after completion of 240 days of service. If his services were to be terminated even by the order dispensing with his services it was necessary to give him retrenchment benefit as provided in Section 25F of the Industrial Disputes Act. In the instant case neither any notice of retrenchment was given nor any retrenchment compensation was given to the respondent. It is well settled by the decision of the Supreme Court that retrenchment compensation if not complied with the provisions of Section 25F of the Industrial Disputes Act, 1947 is void ab initio.
6. In the present case, the respondent is not seeking only enforcement of right under the Industrial Disputes Act, and in substance he is enforcing his right under the common law as well as under Article 14 of the Constitution of India. He also happens to be a workman and as such he is entitled to the benefit of the rights conferred by Section 25F of the Industrial Disputes Act. In a situation like this where the petitioner is entitled to the right under common law or industrial law it is the choice of the employee either to approach the Civil Court or the Industrial Court. This proposition of law is firmly settled by the Full Bench of this Court in
7. With the above order and directions, the Regular Second appeal as well as the Civil Misc. application stand disposed of with no order as to costs.
