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Rajasthan High Court · body

2010 DIGILAW 1292 (RAJ)

Chandra Prakash Sharma v. State of Rajasthan

2010-07-26

VINEET KOTHARI

body2010
JUDGMENT 1. - Heard the learned counsel. 2. By the impugned order dated 15.7.2010. the services of the petitioner, a Junior Technical Assistant under the NREGA Scheme have been terminated by the respondent - authority in terms of the contract executed for his services while appointing the petitioner as such vide Annex. 1 dated 22.3.2010 as Junior Technical Assistant in Panchayat Samiti, Kotri. 3. The learned counsel for the petitioner urged that said termination of services is illegal and contrary to law laid down by the Hon'ble Supreme Court in the case of Parshotam Lal Dhingra v. Union of India, reported in AIR 1958 (SC) 36 . The relevant extract of Para 12 is quoted below: "In the absence of any special contract the substantive appointment to a permanent post give the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or its compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him or proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure cannot be put to an end during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases, the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service." 4. Having heard the learned counsel, this Court is of the view that this writ petition cannot be entertained for the following reasons. 5. The said termination order Annex. 3 dated 15.7.2010 clearly stipulates that the services of the petitioner are being terminated as he has been found to be negligent in performance of his duties in accordance with Clause 6 of the said contract. The said Clause 6 of the contract is reproduced hereinunder: "6. 5. The said termination order Annex. 3 dated 15.7.2010 clearly stipulates that the services of the petitioner are being terminated as he has been found to be negligent in performance of his duties in accordance with Clause 6 of the said contract. The said Clause 6 of the contract is reproduced hereinunder: "6. STANDARDS OF SERVICE : The first party shall carry out the assignment in accordance with the highest standards of professional and ethical competence and integrity, having due regards to the nature and purpose of the assignment and will conduct itself in a manner consistent herewith otherwise will be liable to be debarred from further contract agreement or service anywhere in the State Government or its Corporation and liable to punitive action under the law. The second party will be free to terminate contract if the first party does not perform duties as mentioned above." 6. The relevant clause-4(i) and (ii) and clause 5 relating to termination of contract are also reproduced hereunder for ready reference : "4. ACTION AGAINST FIRST PARTY: (i) Any misconduct on the part of the first party, shall entitle second party to terminate contact of service of the first party. (ii) Work not done upto to the satisfaction of the second party will also be treated as misconduct. 5. TERMINATION OF CONTRACT: (i) The Contract can be terminated with notice of one month on either side or by depositing/paying one month's package/contract amount in lieu of notice. (ii) Second party or any authority approving contractual appointment with first party or any officer superior to the second party shall be competent authority for termination of contract (iii) The agreement/contract period shall stand terminated automatically on expiry of above stipulated period if not extended prior to stipulated date. First party will not be entitled for any claim for services rendered after expiry of stipulated date of contract. (iv) Any unauthorised or willful absence from duty for a period of seven days would entitle second party to terminate contract without any notice." 7. From a closer scrutiny of the aforesaid clauses of contract, it is clear that the work not done upto the satisfaction of second party i.e. the employer can also be treated as misconduct. No clause in the said contract envisage holding of any enquiry as such prior to termination of contract. From a closer scrutiny of the aforesaid clauses of contract, it is clear that the work not done upto the satisfaction of second party i.e. the employer can also be treated as misconduct. No clause in the said contract envisage holding of any enquiry as such prior to termination of contract. Such contract employee for a short period are not regular civil servants and are, therefore, not entitled to protection as regular civil servants under Article 311 of the Constitution of India. -The recent trend of employment of these types of employees on contractual basis for implementation of NREGA schemes funded by the Central Government have given rise to several these kind of cases where such employees are found to be indulging in corrupt activities and not performing upto standard expected of the. Since the contract signed by the petitioner clearly stipulates that the work not done upto the satisfaction of second party can also be treated as misconduct and that can be ground for removal of the petitioner or contract of service being terminated by the second party i.e. the employer, at best, according to the petitioner, even if it amounts to breach of contract, the remedy does not lie in invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The requirement of holding enquiry in order to establish the misconduct of the contracted employee is neither envisaged In the contract nor directed by the Hon'ble Apex Court as aforesaid in the judgment relied upon by the learned counsel for the petitioner in such cases. The writ jurisdiction cannot be invoked to make a roving and fishing enquiry at the instance of a short period contracted employee, even if there is any breach of contract, which can only be established with proper evidence in a civil suit. 8. Consequently, this writ petition Is found to be devoid of merit and the same-Is accordingly dismissed. No order as to costs. A copy of this order be sent to the opposite party.Writ Petition Dismissed. *******