Mahesh Kumar Sarate v. M. P. Adivasi Vitta Evam Vikas Nigam
2006-03-21
A.K.SHRIVASTAVA
body2006
DigiLaw.ai
ORDER 1. By this petition under Article 226 of the Constitution of India, the petitioner is challenging the validity of impugned order Annexure P-2 dated 16.12.1998 by which his services have been terminated by respondent No.1. 2. In brief the case of petitioner is that vide order dated 7.8.1998 he was appointed on the post of LDC in the pay-scale of Rs. 1,800/- per month. The services were contractual in nature and he was appointed for one year and a contract was also executed in that regard. However, all of a sudden, vide impugned order dated 16.12.1998 his services have been terminated on the ground that they are no longer required. The contention of learned counsel for the petitioner is that the action of respondent No.1 terminating the services of petitioner runs dehors to the guarantee provided to the citizen under Articles 14 and 16 of the Constitution of India. By inviting my attention to certain documents, it has been submitted that the employees who are junior to the petitioner have been retained in service and after terminating the services of petitioner, certain new persons have been appointed. Thus, the action of respondent No.1 is not only arbitrary in nature but is putting a dent on the fundamental rights of the petitioner enshrined under Articles 14 and 16 of the Constitution of India. In support of her submission, learned counsel has placed heavy reliance on the following decisions: (i) Om Prakash Goel v. The Himachal Pradesh Tourism Development Corporation Ltd. Shimla and another [ AIR 1991 SC 1490 ]. (ii) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others [( 1989) 2 SCC 691]. (iii) Jarnail Singh and others v. State of Punjab and others [ AIR 1986 SC 1626 ]. (iv) ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others [ (2004) 3 SCC 553 ]. On the basis of aforesaid premised submissions, it has been argued by learned counsel for the petitioner that the impugned order AnnexureP-2 be quashed and respondents be directed to reinstate the petitioner. 3. Per contra Shri Ganguli, learned counsel for the respondents No.1 and 2 has submitted that admittedly the petitioner was appointed un contractual basis and admittedly there are no statutory rules governing the service conditions of the petitioner.
3. Per contra Shri Ganguli, learned counsel for the respondents No.1 and 2 has submitted that admittedly the petitioner was appointed un contractual basis and admittedly there are no statutory rules governing the service conditions of the petitioner. Since the appointment was made purely on contractual basis, and admittedly a contract was arrived at between the parties in which it has been specifically mentioned that in case the services are terminated prior to contractual period, one month notice is required to be sent or in lieu thereof a salary of one month would be paid. Since in lieu of notice the salary has been paid to the petitioner, therefore, the petitioner has no case and at the most he can sue for damages. In support of his contention, learned counsel has placed reliance on the decision of Supreme Court Ahmedabad Education Society v. Gilbert B. Shah and others [ (2004) 1 SCC 612 ] and single Bench decision of this Court Brahamdutta Gupta v. State of Madhya Pradesh and others [ 2004 (2) MPHT 510 ]. 4. After having heard learned counsel for the parties, I am of the view that this petition deserves to be dismissed. 5. It is no more in dispute that there are no statutory rules governing the service conditions of the employees who are serving under respondent No.1. Admittedly the petitioner was appointed on contractual basis for a period of one year and in the contract there is a clause that at any time during the period of the contract the service can be terminated by giving one month's notice or in lieu thereof salary of one month. Since the services of the petitioner were not governed by any statutory rules and they were purely on contractual basis, therefore, no fault can be carved out from the impugned order Annexure P-2 terminating the services of the petitioner. 6. In the case of Gilbert B. Shah (supra), the apex Court has categorically held that the civil Court as well as High Court held that the respondent to be a contractual employee and hence entitled to retire at the age of 60 years in accordance with Rule 29 of the Leave Rules and it was further held that if the service conditions of the employee are contractual in nature the contract would govern the service conditions.
In para 4 of the Judgment the apex Court while dealing with the Leave Rules in terms they were found to be contractual in nature and thereafter in para 10 it has been held that the terms of contract would determine the terms of service of the employees and the apex Court refrained itself from examining the other issues advanced before it. 7. The decision of Brahamdutta Gupta (supra) is also applicable in the present case. The single bench of this Court in para 9 has held as under: "9. The question of applying the theory of lifting of the veil and stigma being caused in terminating the appointment is prima facie not applicable in such cases of contract appointment. The' petitioner was only entitled to a month notice or salary in lieu thereof and nothing more. The judgments referred to by learned counsel with regard to casting of stigma and lifting of veil are all cases pertaining to terminating the service of an employee, who has not completed tenure of his service or they are cases pertaining to terminating the servi0c or probationer and temporary employee. None of these cases relate to termination of a pure contractual appointment as per the contract." In the present case also since the services are contractual in nature, therefore, the theory of lifting of the veil and stigma will not be applicable in the present case. 9. The decisions placed reliance by learned counsel for the petitioner are tangentially off the point. The decision of Om Prakash Goel (supra) is not applicable in the present case for the simple reason that the services of the employee were governed by the Industrial Law. The decision of V.R. Rudani (supra) is also not applicable for the simple reason that it docs not pertain to the termination of service. The facts of that case are altogether different. The teachers were affiliated with the University and the salary was being recommended on the basis of the recommendation of the University Grant Commission. 10. The decision of Jarnail Singh (supra) is also not applicable in the present factual scenario for the simple reason in the said decision the employee was Government employee and similarly the decision of ABL International Ltd. (supra) is also not applicable in the present case because it has nothing to do with the termination of the service. 11.
10. The decision of Jarnail Singh (supra) is also not applicable in the present factual scenario for the simple reason in the said decision the employee was Government employee and similarly the decision of ABL International Ltd. (supra) is also not applicable in the present case because it has nothing to do with the termination of the service. 11. For the reasons stated hereinabove, I do not find any merit in this petition and the same is dismissed with no order as to costs. However, the petitioner, if so advised, is free to file suit for damages.