Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12307 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Abhimanyu Sahu …. Petitioner(s) -versus- State of Odisha and others …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Mr. Srikar Kumar Rath, Adv. For Opposite Party (s) : Mr. D. Mund, AGA Mr. S. K. Padhy , Adv. (for O.P.6) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-22.07.2024 DATE OF JUDGMENT: -24.09.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner has filed the present Writ Petition challenging the order dated 09.01.2020 passed by the Opposite Party No. 4, whereby the Petitioner was disengaged from the position of Data Entry Operator, alleging that the said action was taken without serving a show cause notice or providing an opportunity to be heard. I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case as narrated by the Petitioner: Page 1 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (i) (ii) The petitioner was initially appointed to the post of Computer Assistant on a contractual basis with a monthly remuneration of Rs. 3000/- pursuant to Office Order dated 15.05.2007 issued by Opposite Party No. 6. Subsequently, Opposite Party No. 1 issued a letter directing Opposite Party No. 6 to provide information on DLR/NMR category employees engaged after 12.04.1993. In compliance, Opposite Party No. 6 submitted the required information vide Letter No. 1194/NAC dated 22.08.2015/ wherein the petitioner’s name was listed at Serial No. 1. (iii) The petitioner was directed to receive applications for the selection of beneficiaries under the Pradhan Mantri Awas Yojana (PMAY). It is submitted that such selections are conducted by the District Urban Development Agency (DUDA). After three phases of DPR under PMAY were completed by one Anil Kumar Satpathy, and the responsibility for the fourth phase was assigned to the petitioner. (iv) The petitioner further submits that upon taking over charge from Anil Kumar Satpathy, and while overseeing the fourth phase of the PMAY project, certain beneficiaries were not selected, which led to aggrieved individuals submitting a grievance petition before the Collector, Rayagada. (v) Acting on Grievance Petition No. 6 dated 06.01.2020, Opposite Party No. 5, along with DUDA officials, Opposite Party No. 6, and staff, conducted verification on 07.01.2020. It was concluded that the petitioner be removed from his position, and a show cause notice was issued to Opposite Party No. 6 for alleged negligence. Page 2 of 13
Facts
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (vi) He was issued an order dated 09.01.2020 by Opposite Party No. 4, directing his disengagement from service. II. 3. SUBMISSIONS ON BEHALF OF THE PETITIONER: Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) While the petitioner continued as a Computer Assistant, Opposite Party No. 1 issued a letter to Opposite Party No. 6 on 05.04.2014, directing the submission of a detailed report regarding the engagement of Data Entry Operators/Computer Operators in Urban Local Bodies (ULBs). In compliance with the aforementioned letter, Opposite Party No. 6 submitted a detailed report on the engagement of Data Entry Operators/Computer Operators in ULBs vide Letter No. 628/NAC dated 05.04.2014, in which the petitioner was acknowledged as an "outstanding worker" in the remarks column. (vii) Then, despite having no role in the selection of PMAY beneficiaries, he was issued an order dated 09.01.2020 by Opposite Party No. 4, directing his disengagement from service. (viii) After the petitioner was scapegoated, he was never served with a show cause notice before the issuance of the impugned disengagement order, nor was he in any way responsible for the selection of PMAY beneficiaries, which is under the purview of DUDA officials and Opposite Party No. 6. Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (ix) (x) Consequently, the petitioner submitted a representation to Opposite Party No. 3, expressing his grievance and requesting a detailed inquiry into the matter, along with a prayer for reinstatement. As a Data Entry Operator, his primary responsibility was to manage data, and the additional task of receiving applications under PMAY was undertaken at the instruction of Opposite Party No. 6. The petitioner complied with these instructions while maintaining his duties as a Data Entry Operator. (xi) The petitioner, having no authority or responsibility for the actual selection of PMAY beneficiaries, cannot be held liable for any lapses in this process, and the impugned order dismissing him from service is therefore illegal, being contrary to the principles of natural justice and violative of Articles 14 and 21 of the Constitution of India. (xii) No show cause notice was issued prior to the petitioner’s disengagement, and no inquiry was conducted into the allegations against him. Having diligently served as a Data Entry Operator for 13 years, the petitioner has never neglected his duties, and the impugned orders are therefore baseless and contrary to law. (xiii) The approval of the DPR for PMAY beneficiaries involved multiple government officers, including the Collector, DUDA officials, and others, and the petitioner had no involvement in these decisions. The allegation of responsibility for the improper selection of PMAY beneficiaries is unfounded, and the impugned orders are therefore liable to be quashed. Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. (i). (ii).
Legal Reasoning
“6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or 1 (2018) 3 SCC 218 Page 8 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner. 7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner.” 10. The Supreme Court in the case of Secretary. State Of Karnataka v. Umadevi2 held that: “In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others; a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere." 2 Page 9 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 .... 38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” 11. In Umadevi (supra), the Supreme Court has thoroughly examined the observations of the Court in Piara Singh (supra) and concluded that there cannot be any absolute rule or principle that one ad hoc or temporary appointee can never be replaced by another ad hoc or temporary appointee. 12. What is sought for by the petitioner is for this court to nullify the termination and direct their reinstatement. In this context, the question arises whether a mandamus could be issued in favour of such persons. Now, it is trite in law that in order that a mandamus may be issued to Page 10 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 compel the authorities to do something, it must be shown that the a statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the employer to re-appoint or make them permanent, since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. 13. In the case of Oshiar Prasad and others vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., Dhanbad, Jharkhand,3 the Apex Court has observed as under: “25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.” 14. On the basis of the terms and conditions visible on record coupled with the honorary status having been accepted throughout by the petitioner, in the considered opinion of this Court, it is not open for the petitioner now to approach the Court with a request to reinstate him to the concerned post irrespective of the fact as to whether he is continued for 3 (2015) 4 SCC 71 Page 11 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 quite some time. Mere continuance in service as a contractual employee would not give any leverage to the petitioner to claim as if he is a permanent employee. 15. Contractual workers, by the nature of their employment, do not typically enjoy the same protections as permanent employees when it comes to termination or layoffs. As a result, no formal departmental proceeding is required for their dismissal or removal from service. The terms of their employment are often governed by the contract itself, which generally allows for termination without the need for an elaborate inquiry or procedural safeguards, as would be required in the case of regular employees especially in case of any serious omissions or commissions. 16. However, in recent years, Courts have increasingly stressed the importance of providing at least a basic level of protection to contractual workers in the form of notice prior to termination. This shift emphasizes the need for fair treatment, ensuring that workers are not abruptly or unjustly removed from their positions. While the Courts stop short of mandating formal proceedings, they have highlighted the necessity of transparency and giving workers sufficient notice to safeguard their dignity and allow for reasonable preparation for their exit. 17. In this case, the Petitioner’s involvement in the field visit and verification process effectively served as an informal notice. By actively participating in the procedure, the Petitioner was made aware that any irregularities or discrepancies discovered during the verification could Page 12 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 result in potential action being taken against him. His engagement in the process implied that he had the opportunity to understand the consequences of any lapses in his duties. Even though no formal Departmental Proceeding or explicit notice was issued, his direct involvement in the verification process placed him on notice that his performance and conduct were under scrutiny, thereby diminishing the argument of complete surprise or unjust dismissal. 18. On a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent. That being the position, it appears to this Court that hardly any case is made out by the Petitioner to call for any interference to grant any relief as prayed for. V. CONCLUSION 19. In light of the facts and circumstances of the present case, this Court finds no merit in the current Writ Petition. The Petitioner has not succeeded in establishing grounds for interference with the impugned order. 20.
Arguments
Per contra, learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: The averment of the petitioner pertaining to violation of principles of natural justice is completely false and not on the basis of any cogent document rather it is an absurd allegation without any reasonable basis. The petitioner was initially engaged as Computer Assistant with contractual pay of Rs.3,000/- P.M. vide order dated 15.05.2007. O.P. No.1 issued a letter to the O.P. No.6 to submit information on DLR/NMR category employees who were appointed after 12.04.1993 that too on DLR/NMR status. As such, his subsequent claim with respect to protection as a regular/contractual employee while admitting his status to be DLR/NMR category is not sustainable in the eye of law. (iii). The period for which the petitioner was entrusted to receive the applicant under PMAY grievance petition from the local public were received and in order to ascertain the truth behind such allegation a field visit for fact finding was conducted in presence of the petitioner where he was also examined and it was found that the petitioner was involved in the irregularities not only that he misbehaved the team deployed for inquiry about the allegations. This was completely derogatory and un-becoming on the part of an employee irrespective of the position where NMR / DLR / Contractual or Regular. Accordingly, a suggestion of the fact finding enquiry report, the P.D., DRDA-cum- DUDA, Rayagada vide his letter No.63 dated 08.01.2020 under Annexure-6 while submitting his field visit report suggested that the Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 petitioner may be immediately removed from his job. Simultaneously show cause notice was to be issued in respect of O.P. No.6, the Executive Officer, Gudari for his gross negligence and lack of supervision. (iv). In the present case the irregularities committed by the petitioner was established during the field visit in presence of the petitioner and accordingly he was removed from service as per order dated 09.01.2020. In this way the authorities have not committed any error or wrong in taking a decision to disengage the petitioner on the basis of the irregularities committed by him were established in front of him. (v). It is a fact that no show cause notice has been issued to the petitioner before disengaged him. However, such action cannot be treated as illegal or irregular as taking into consideration the nature of employment of the petitioner and the field visit report where the petitioner had himself participated, the necessity to issue show cause notice was not desirable before taking any action thereon. IV. COURT’S REASONING AND ANALYSIS: 5. Having heard learned advocates appearing for the sides and having gone through the material on record, it appears that before dealing with the central issue raised in the petition, following few facts are worth taking note of:› a. From the record, it is clear that the petitioner was contractually appointed on purely temporary basis and terminable at any time. Therein, it was explicitly mentioned that the order of engagement Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 does not construe a basis for claiming any regular or permanent appointment in future. b. The letter of appointment further indicates that the petitioner(s) had been appointed for a specific term; extendable on term-to-term basis. c. It is indicated that the petitioner was paid a consolidated remuneration of against his appointment. It is pertinent to note that the petitioner was not paid wages or salary but a fixed honorarium every month for the period of work. d. At the time of extension of the concerned period of appointment, it was reiterated that the petitioner’s services were contractual only and that extension of contract does not construe a basis for claiming any regular or permanent appointment in future. 6. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract. In fact, the terms of the contract make it clear that it is one for temporary service, and that with effect from the date on which the contract ends, the service of the petitioner shall be terminable provided it is not regularized first. Secondly, the remuneration is described as honorarium, and consistent with the position that the petitioner is a contractual employee working in the Institute in his own right. Thirdly, his services cannot be terminated in the usual manner as the other regular employees of the Institute but are terminable anytime. The fact Page 7 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 that the petitioner has done his job with utmost honesty and would not necessarily lead to the conclusion that, de hors all other factors, the contract is one of contractual service. 7. The petitioner does not have any vested right to continue in the said post. Since the appointment was purely on contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post specially, when there is a clear breach of his official duties by engaging himself in many omission and commission. 8. 9. The relevant observations contained in the following decisions of the Apex Court with regard to the status of a contractual employment, I would like to incorporate hereunder some of the relevant observations. In the case of Yogesh Mahajan vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences,1 the Apex Court has observed as under:›
Decision
In light of the foregoing, this Writ Petition is dismissed and disposed of in terms of the aforesaid observations. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 24th Sept., 2024/ Page 13 of 13