The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC No.20688 of 2020 Jyostnamayee Rath …. Petitioner The State Head, (UNDP) & others …. Opposite Parties Mr. S.K. Sarangi, Advocate -versus- Mr. P.C. Das, ASC Mr. B.B. Rout, Advocate for O.P. No.5 CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 02.05.2023 10. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned Addl. Standing Counsel for the State-Opposite Parties and learned counsel for the Opposite Party No.5-Private Security Agency. Perused the writ application as well as the documents annexed thereto. 3. The present writ application has been filed by the Petitioner with a prayer to quash the impugned order/ notice dated 17.08.2020 under Annexure-5 and further for a direction to the Opposite parties to allow the Petitioner to continue in service as “call centre executive” in DRDA, Puri till 19.01.2021 as per agreement. 4. Learned counsel for the Petitioner submitted that pursuant to an advertisement for recruitment to the post of Call Centre Executive // 2 // in Puri, the Petitioner submitted her candidature and she was found eligible for appointment to such post, accordingly, she was invited to attend the personal interview which she attended at DRDA, Office on 23.12.2019. Thereafter, the Project Director-opposite Party No.3 vide letter No. 6791 dated 30.12.2019 informed Opposite Party Nos.1 & 4 pursuant to recruitment test the Petitioner was appointed as call centre executive on being duly selected with effect from 20.1.2020. 5. On perusal of letter dated 20.01.2020 under Annexure-2, it is found that the petitioner has been selected and appointed as Call centre executive in Puri district and her name finds place in serial No.31. Thereafter, the Petitioner was called upon to execute an agreement and accordingly she executed an agreement with the DRDA, Puri on 20.01.2020 as per the said agreement. The Petitioner was to get the monthly remuneration of Rs.8,000/- per month and her engagement was for a period of one year. 6. While the Petitioner was continuing as district call centre executive on being duly selected and appointed pursuant to an agreement under Annexure-3, the Petitioner was served with 14 days notice on 17.08.2020. A copy of such notice which was sent to her mobile has been annexed as Annexure-5 to the writ application. On perusal of the Annexure-5, it appears that based on the feedback from the District authority and as monitored by UNDP it was decided to terminate her contract with effect from 31.08.2020 and accordingly she was directed to handover all the documents and property in favor of the RH Project, DRDA before 31.08.2020. In the said letter it has also been indicated that following receipt of all the clearances from the concerned authority the UNDP will settle her // 3 // final payment. 7. After receiving the aforesaid notice, the Petitioner submitted a representation before the Collector, Puri on 11.08.2020 wherein she was submitted that due to an accident she took leave from 16.6.2000 to 18.6.2000. It also appears that she has submitted that she is entitled to such leave and accordingly she has taken such leave lawfully by submitting an application for leave. However, she further complained that she has not been paid her salary for the month of June and July, 2020 and along with her representation, she has also filed a copy of her leave application which was submitted before the Project Director, DRDA on 16.06.2000 wherein she has stated that due to a serious road accident she has sustained some injuries as a result of which she was unable to attend the Office. She has also annexed the copy of medical documents to such representation. It is submitted by learned counsel for the petitioner that the Collector, Puri has not taken any decision on such representation. 8. A counter affidavit has been filed on behalf of Opposite Party Nos.2 & 3 wherein they have stated that the Petitioner was engaged on contractual basis in a UNDP assisted programme of the Government of Odisha. Under such project the recruitment of call centre executive (rural housing) was felt necessary and accordingly some persons were appointed which includes the present petitioner. Further, in their counter affidavit they have admitted at the time of recruitment the Petitioner was found suitable and therefore she was recommended by the UNDP. 9. A counter affidavit has been filed by Opposite Party Nos.2 & 3 also which reveals that the engagement was purely on contractual // 4 // basis and subject to terms and condition of the agreement executed with the Petitioner. The only allegation against the Petitioner is that the Petitioner was not punctual for which she was issued with a notice pursuant to the agreement. It is further stated in the counter affidavit instead filing a reply to the show cause notice, the petitioner has approached this Court by filing the present writ application. Accordingly, the Opposite Parties have prayed for dismissal of the writ application as the same is devoid of merit. 9. Learned counsel for the Opposite Party No.5 submitted that the Opposite Party No.5-Agency has been engaged recently. Therefore, he further submitted that the Petitioner was not initially engaged by the Opposite Party No.5-Agency and the said agency came into picture in the year 2021. Learned counsel appearing for the Opposite Party No.5 submitted that the Opposite Party No.5 has not disengaged the service of the Petitioner and on query being posed by the this Court, learned counsel for the Opposite Party No.5 submitted that the Opposite Party No.5 is ready to engage the Petitioner subject to Petitioner fulfilling the eligibility conditions for such engagement. 10. Having heard the learned counsels for the parties and on a careful consideration of the factual background of the present case and materials placed before this Court, this Court observes that the Petitioner was initially engaged on contractual basis. Thereafter, her service was terminated pursuant to a notice under Annexure-5 dated 17.08.2020. The notice of termination is subject to the agreement entered into and executed by the Petitioner with UNDP. On perusal of the agreement under Annexure-3, it is seen that the tenure of engagement was for one year, that is, from 20.01.2020 to // 5 // 19.01.2021, unless the same is terminated in accordance with the terms of the agreement. On a plain reading of the agreement under Annexure-3, it is revealed that there is no such provision for termination of the contract with an individual employee although the said contract provides for termination clause in general condition of contract for individual contractors. In such view of the matter, this Court is of the considered view that the termination of contract before expiry of one year, that is, before expiry of the contractual period is illegal. Therefore, the Petitioner should have been allowed to continue in employment up to 19.01.2021 as per the agreement executed with the Petitioner. Since, this Court has come to a conclusion that the termination of contract is illegal and not supported by the conditions of the agreement that was specifically executed with the petitioner, the employer is liable to pay salary for the entire period that has been mentioned in the contract since the project was being executed by the PD, DRDA, and the PD, DRDA is liable to pay balance amount as the Petitioner is entitled to as per the agreement under Annexure-3. 11. In view of the aforesaid analysis, this Court deems it proper to dispose of the writ application by directing the Collector, Puri, Opposite Party No.2 to consider the grievance of the Petitioner as has been directed hereinabove and the Opposite Party No.3 the Puri District, DRDA is directed to pay the balance remuneration as is due and admissible to the Petitioner as per the agreement under Annexure-3. Further, the Collector, Opposite Party No.2 shall do well to consider the case of the petitioner and in the event, the project is still continuing, then the Petitioner’s case may be considered by Opposite Party No.2 for reengagement in service // 6 // within a period of four weeks from the date of communication of this order. 12. With the aforesaid observations/ directions the writ petition stands disposed of. Issue urgent certified copy of this order as per Rules. Anil ANIL KUMAR SAHOO Digitally signed by ANIL KUMAR SAHOO Date: 2023.05.03 19:02:56 +05'30' ( A.K. Mohapatra ) Judge