The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29013 OF 2011 (An application under Article 226 of the Constitution of India) Amarendra Mohanty … Petitioner -versus- Utkal University & another … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.S.K.Mishra, Advocate -versus- For Opposite Party Nos.1,2 & 5 : Mr.D. Mohapatra, Advocate For Opposite Party Nos.3 & 4 :Mr. B.P.Tripathy, A.G.A. -------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 26.4.2023. Sashikanta Mishra,J. The Petitioner has filed this Writ Petition seeking the following relief; Page 1 of 11 and order <It is therefore, prayed that this Hon’ble Court may be graciously pleased to admit this writ petition, issue notice to the opposite parties, call for the relevant record and after hearing the parties the impugned order dated 21.9.2011 under Annexure-10 dated 17.10.2011 under Annexure-10 and under order Annexure-15 to the writ petition be quashed and consequently the opposite parties be directed to regularize the service of the petitioner as Junior Engineer (Civil) and further grant him benefit of revised pay w.e.f. 1.9.2011 by issuing writ of certiorari/mandamus or any other appropriate writ.= 17.10.2011 dated 2. The facts of the case are that the Petitioner is a Diploma Engineer. He was included in the panel of Junior Engineer (Civil) prepared by the Chairman, Committee of Chief Engineer and Engineer-in-chief (Civil)(Opposite Party No.4). By letter dated 25th April, 2005, the Registrar, Utkal University (Opposite Party No.2) placed a requisition before Opposite Party No.4 to sponsor the name of a Junior Engineer for engagement against the available vacancy. Accordingly, the name of the Petitioner was sponsored by letter dated 30th April, 2005 and he was appointed W.P.(C) No. 29013 of 2011 Page 2 of 11 as Junior Engineer (Civil) on contractual basis on consolidated remuneration of Rs.5,000/- per month by order dated 8th June, 2005. Such appointment was initially for 89 days, which was continued from time to time with one day break. By Resolution dated 22nd September, 2008, the Government in Works Department decided that the Junior Engineer engaged in different departments on contractual basis with consolidated remuneration will be paid enhanced remuneration @ Rs.7,500/- per month on completion of three years of uninterrupted contractual service and satisfactory performance and may be considered for absorption in regular scale of pay after satisfactory completion of 6 years of uninterrupted engagement subject to availability of sanctioned post in the cadre. The Petitioner therefore, submitted representation for enhancement of his remuneration. The Syndicate in its meeting held on 5th April, 2011 resolved to pay the enhanced remuneration from Rs.5,000/- to Rs.7,500/- as per the Resolution dated 22nd September, 2009. The Government in Finance Department issued a W.P.(C) No. 29013 of 2011 Page 3 of 11 Resolution on 29th August, 2009 holding that the contractual employees in different Government offices are entitled to draw the minimum pay of corresponding regular posts in the revised scale of pay w.e.f. 1st September, 2009. The Petitioner submitted representation for sanction of revised scale of pay as also to consider his case for regularization as in the mean time he had completed 6(six) years of service. Instead of considering his claim, the Opposite Parties, vide order dated 21st September, 2011 relieved him from duty with direction to join his parent organization. The Petitioner submitted his joining report before the Opposite Party No.4 on 22nd September, 2011. However, by order dated 30th September, 2011 (copy enclosed as Annexure-13), the Opposite Party No.4 stated that Utkal University is his appointing authority and shall control all service conditions. It was categorically stated that the Office of the Engineer-in-chief is not his parent department. The Petitioner thereafter approached this Court in W.P.(C) No.26388/2011 challenging the order dated 21st W.P.(C) No. 29013 of 2011 Page 4 of 11 September, 2011 passed by Opposite Party No.2. By order dated 30th September, 2011, this Court directed the Opposite Party No.2 to dispose of the representation of the Petitioner and that he shall be allowed to continue for 15 days. The Petitioner submitted his representation on 12th October, 2011, but by order dated 17th October, 2011, the Petitioner was intimated that as per the decision of the Syndicate, his services are no more required in the University as his performance is not satisfactory. It is stated that the Petitioner has been rendering service uninterruptedly to the best satisfaction of his superiors and there is no blemish whatsoever in his career. 3. The case of the Opposite Party (University) is that the Petitioner was a contractual appointee but was engaged on 89 days basis with one day break. The Syndicate in its meeting held on 31st October, 2008 observed that the services of the Petitioner are far from satisfaction and he will be repatriated to his parent department, but to continue until a substitute is W.P.(C) No. 29013 of 2011 Page 5 of 11 provided. The Government was also moved accordingly. He was thus, relieved on 21st September, 2011. Since this Court directed for his continuance for 15 days, he was allowed to continue. It is further stated that the Petitioner9s performance was not satisfactory and that a vigilance enquiry was conducted regarding misappropriation of Government funds in execution of renovation work of toilet of quarters in the campus.
Legal Reasoning
4. Heard Mr. S.K.Mishra, learned counsel for the Petitioner, Mr. D. Mohapatra, learned counsel appearing for the Utkal University and Mr. B.P.Tripathy, learned Addl. Government Advocate for the State. 5. It is submitted by Mr. Mishra that the Petitioner is an employee of the Utkal University as clarified by the Opposite Party No.4. There is absolutely no allegation levelled or proved against him. Therefore, the resolution of the Syndicate in describing his performance as not satisfactory cannot be justified in any manner. Moreover, even assuming that there was W.P.(C) No. 29013 of 2011 Page 6 of 11 some doubt as regards his performance, the same should have been brought to his notice giving him opportunity to have his say in the matter. Since the impugned order directly affects his right to livelihood, the principles of natural justice are required to be followed, which the authorities have not done. 6. Mr. D. Mohapatra, on the other hand, submits that the Petitioner cannot be treated as an employee of the University having been sponsored by the Opposite Party No.4 from the common pool of Diploma Engineers prepared by him. In any case, he was a contractual employee and since his performance was not satisfactory, his case could not have been considered for regularization. The Syndicate therefore, rightly took the decision to relieve him from service. Since he is a contractual employee having no lien on the University, the principles of natural justice are not required to be followed. 7. There seems to be no dispute that a pool of Diploma Engineers (Civil) was prepared by Opposite W.P.(C) No. 29013 of 2011 Page 7 of 11 Party No.4. Such Engineers were sponsored to different departments on requisition. Obviously, this is not a case of deputation but a mere sponsoring of name for appointment by the Requisitioning Authority. To such extent therefore, the contention that the Petitioner being sponsored by Opposite Party No.4 is not an employee of the University is erroneous. As regards the applicability of the Resolution dated 22nd September, 2008 of the Government in Works Department to the University, it is argued by Mr. Mohapatra that the same cannot be made applicable since the resolution itself mentions the names of the Departments to which it would apply. This Court is unable to accept such contention for the reason that acting upon the representation submitted by the Petitioner for enhancement of his remuneration as per the Resolution dated 22nd September, 2008, the Syndicate took a decision to grant such enhancement basing on the resolution. This would also imply that the Petitioner would be entitled to claim regularization of W.P.(C) No. 29013 of 2011 Page 8 of 11 his services contingent upon fulfillment of the conditions laid down therein. 8. As regards the decision taken by the Syndicate to treat the performance of the Petitioner as 8far from satisfaction9, meaning thereby not satisfactory, the same comes out as entirely vague and non-specific inasmuch as not a shred of material has been placed before this Court to justify such a view being taken. Though the University has attempted to justify its decision by referring to some vigilance enquiry in its counter but in the absence of any reference whatsoever to such enquiry either in the resolution of the Syndicate or in the impugned order, the same cannot be accepted. Law is well settled that no party is permitted to improve upon its case by supplementing the reasons justifying its actions in the counter. Reference may be had to the decision of the Apex Court in this regard in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner; 1978 AIR 851. W.P.(C) No. 29013 of 2011 Page 9 of 11 9. The effect of the impugned order under Annexure- 15 is plain and simple termination of service of the Petitioner. It is contended that he being a contractual employee, the principle of natural justice are not required to be followed. This Court is of the view that even in case of contractual employee, the principles of natural justice cannot be given a go-bye before visiting him with an order of termination of his service because the right to livelihood is included within the right to life enshrined under Article 21 of the Constitution of India. It is not disputed that the Petitioner has not been informed as to the reasons for treating his performance unsatisfactory nor afforded any opportunity to have his say in the matter. Moreover, the very order clearly comes out as a stigmatic termination. Under such circumstances, the impugned order cannot be countenanced in law. 10. From the conspectus of the analysis of facts, contentions raised and law involved, this Court holds W.P.(C) No. 29013 of 2011 Page 10 of 11 that the impugned order under Annexure-15 being unsustainable in the eye of law, warrants interference. 11. In the result, the Writ Petition is allowed. The impugned order under Annexure-15 is hereby quashed. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera W.P.(C) No. 29013 of 2011 Page 11 of 11 W.P.(C) No. 29013 of 2011 Page 12 of 11 W.P.(C) No. 29013 of 2011 Page 13 of 11 W.P.(C) No. 29013 of 2011 Page 14 of 11 W.P.(C) No. 29013 of 2011 Page 15 of 11