A.P. State Federation of Coop. Spg. Mills Ltd v. P.V. Swaminathan
Case Details
W. P. (S) No. 2328 of 2006 (In the matter of an application under Article 226 of the Constitution of India) --- Dr. Ram Badan Singh Medical Officer … … Petitioner Versus 1.The State of Jharkhand 2.The Ministry of Health and Family Welfare, Jharkhand 3.The Civil Surgeon-cum- Chief Medical Officer, Giridih ... … Respondents --- For the Petitioner For the Respondents
Legal Reasoning
: Mr. Rajesh Kumar, Advocate : Mr. Saket Upadhyay, J.C. to A.A.G. --- Present HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR --- By Court: The petitioner has approached this Court seeking quashing of order dated 25.3.2006 passed by the Civil Surgeon- cum-Chief Medical Officer, Giridih whereby the petitioner was communicated that his services would be terminated w.e.f. 25.05.2006. 2. The brief facts of the case are that, the petitioner was appointed on contractual basis as Assistant Medical Officer for a period of two years. An agreement was signed on 14th June, 2005 with the petitioner wherein it was provided that the said agreement would remain in force between the period 14.06.2005 to 13.06.2007. It was also provided in the said agreement that the appointment was purely temporary and in case, the service of the petitioner is found not satisfactory, it would be terminated by a prior notice of two months. By order dated 25th March 2006, the petitioner was intimated that the agreement would be terminated w.e.f. 25.5.2006 and consequently his services also would be terminated from the said date. It was also communicated that between the period 25.3.2006 to 25.5.2006, the petitioner would be entitled for salary etc. provided, his service/conduct would be in accordance with the rules. Challenging the communication dated 25.3.2006, the petitioner has approached this Court. -2- 3. A counter affidavit has been filed taking a plea that the service of the petitioner was purely contractual. It was provided in the agreement between the parties that the service was liable to be terminated by giving a two months' prior notice. In terms of Clause 7 of the agreement, the notice dated 25.3.2006 was given to the petitioner. Since the appointment of the petitioner was contractual, there was no need of initiating any departmental proceeding and the service of the petitioners has been terminated in terms of the agreement dated 14.6.2005. 4. Learned counsel appearing for the petitioner has relied on the decision of Hon'ble Supreme Court in “A.P. State Federation of Coop. Spg. Mills Ltd. v. P.V. Swaminathan” reported in (2001) 10 SCC 83. Learned counsel appearing for the respondents has relied on the decision of Hon'ble Supreme Court in “Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen” reported in (2007) 1 SCC 408 and “Brij Mohal Lal Vs. Union of India & Others” reported in (2012) 6 SCC 502. 5. Heard learned counsel appearing for the parties and perused the documents on record. 6. The learned counsel appearing for the petitioner has raised a plea that even though there is no requirement in law to initiate a departmental inquiry in cases of contractual appointment, the principle of natural justice requires that at least some inquiry should have been held in the matter and since this has not been done in the present case, the communication dated 25.3.2006 is bad in law as it would cast stigma on the petitioner. 7. As against this, Mr. Saket Upadhyay, learned counsel appearing for the respondents reiterated the stand taken in the counter affidavit and submitted that since the appointment of the petitioner was purely temporary and contractual, the petitioner has no vested right on the post on which he was appointed. He further submits that an inquiry was conducted as would appear from the -3- communication dated 25.3.2006 itself and thereafter, the communication dated 25.3.2006 was issued to the petitioner terminating the agreement and consequently his contractual appointment. 8. The learned counsel appearing for the petitioner has placed reliance on the judgment in “A.P. State Federation of Coop. Spg. Mills Ltd. Vs. P.V. Swaminathan” reported in (2001) 10 SCC 83, in which the Hon'ble Supreme Court has held as under: 3. “The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 of the counter-affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the -4- terms of the employment and not by way of imposing the penalty in question.” 9. In “Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen” reported in (2007) 1 SCC 408, the Hon'ble Supreme Court has held as under: 14. “The distinction between a temporary employee and a permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. It is only a permanent employee who has a right to continue in service till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation.” 10. The judgment of “Indian Drugs & Pharmaceuticals Ltd.” (supra) has been noticed by the Hon'ble Supreme Court in “Brij Mohal Lal” (supra). 11. On consideration of the materials on record and the arguments advanced on behalf of the learned counsel appearing for the parties and after having appreciated the rival contentions, I find that in the present case, the petitioner was appointed on contractual basis and a contract was signed by him on 14.6.2005. The agreement dated 14.6.2005 specifically provided that the service of the petitioner would be terminated if found not satisfactory. It does not appear from the decision rendered by the Hon'ble Supreme Court in “A.P. State Federation of Coop. Spg. Mills Ltd.” (supra) that the employee in the said case was also appointed on contractual basis and an agreement was signed by him. Perusal of the impugned communication dated 25.3.2006 would clearly indicate that by the impugned communication, the petitioner has been intimated that w.e.f. 25.5.2006, the agreement would be -5- terminated and consequently the service of the petitioner would also stand terminated. The said communication has been issued in terms of the agreement dated 14.6.2005 and therefore, I find that the decision cited by the learned counsel appearing for the petitioner is clearly distinguishable and does not apply in the present case. 12. A perusal of the impugned communication dated 25.3.2006 would also indicate that an inquiry was conducted during which it was found that the conduct of the petitioner was not in accordance with rules and thus, it was decided to terminate the contract. The communication dated 25.3.2006 was issued intimating the intention to terminate the contract/agreement dated 14.6.2005. The learned counsel appearing for the respondents has rightly contended that in cases of contractual appointments, the employee would not have any vested right over the post and in fact
Decision
in such situation, even the writ petition is not maintainable. 13. In view of the aforesaid, the writ petition is dismissed. Jharkhand High Court at Ranchi The 26th day of July 2013 R.Shekhar/NAFR/Cp.2 (Shree Chandrashekhar, J.)