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2011 DIGILAW 807 (MP)

Mission Director, RCH/NRHM v. Ranjit Jain

2011-07-22

ALOK ARADHE, S.R.ALAM

body2011
JUDGMENT In this intra-Court appeal the appellant has assailed the validity of the order dated 11-1-2011 passed in Writ Petition No. 13272/2009 (S) by which the writ petition preferred by the respondent No. 1 has been allowed. In order to appreciate the appellant's challenge to the impugned order, relevant facts need mention which are stated infra. 2. The State Health Mission is a project which is run by the State Government. The respondent No. 1 vide order dated 13-12-2006 was appointed on the post of District Accounts Manager by the Commissioner, Health Services and Mission Director, State Health Mission on contract basis for a period of two years on a consolidated salary of Rs. 15,000/-. The services of respondent No. 1 were extended for a period of one year, i.e., upto 10-1-2010. The service conditions of the respondent No. 1 are governed by an agreement executed between the respondent No. 1 and the Chief Medical & Health Officer. The copy of the agreement dated 20-2-2009 has been placed on record as Annexure P-6. 3. It is the case of the respondent No. 1 that District Project Manager, namely, Shri Abhilash Kaushal Tripathi (respondent No. 2 herein) is a person having political connections/patronage. When the respondent No. 1 lodged protest against the irregularities committed by respondent No. 2, he got enraged and threatened the respondent No. 1 that he would ensure that the services of respondent No. 1 are dispensed with. The respondent No. 1 made a complaint dated 20-2-2009 in this regard to Chief Medical and Health Officer. It is further averred in the writ petition filed by the respondent No. 1 that respondent No. 2 got a false complaint made against him that he had issued certain bearer cheques. As soon as the respondent No. 1 came to know about the aforesaid complaint by way of abundant caution. He submitted a detailed representation to the Commissioner, Health Services. However, eventually vide order dated 4-12-2009 the services of the respondent No. 1 were dispensed with on the ground that he had issued various bearer cheques instead of account payee cheques and, therefore, his integrity is doubtful. It was further stated that the period of appointment of respondent No. 1 has already come to an end in February, 2009. 4. However, eventually vide order dated 4-12-2009 the services of the respondent No. 1 were dispensed with on the ground that he had issued various bearer cheques instead of account payee cheques and, therefore, his integrity is doubtful. It was further stated that the period of appointment of respondent No. 1 has already come to an end in February, 2009. 4. The learned Single Judge vide order dated 11-1-2011, inter alia held that when the order dated 4-12-2009 was passed, the appointment of respondent No. 1 was subsisting. By the resolution dated 4-8-2008, the State Health Committee has taken a decision to the effect that sanctioned staff employed in the scheme be continued till the period of project. No notice was given to the respondent No. 1 in terms of Clause 8 of the agreement before issuing the order terminating his services. The reason for discontinuation of employment of respondent No. 1 that he had issued bearer cheques was not found to be substantiated from the record. Accordingly, learned Single Judge quashed the order of termination of the services of respondent No. 1 and directed the appellant to issue an order of appointment within a period of two weeks and to consider the question of grant of backwages as well and to pass suitable order in this regard. 5. Shri P.K. Kaurav, learned Counsel for the appellant submitted that respondent No. 1 has no right to hold the post as the nature of appointment is contractual. The resolution of the State Health Committee dated 4-8-2008, neither culminated into passing of any order in favour of the respondent No. 1 nor in execution of the agreement. No writ can be issued to enforce the terms and conditions of the contract and the contract of service cannot be specifically enforced. If according to the respondent No. 1 his services have been terminated in breach of the terms and conditions, at the most, same entitles him to claim damages. While drawing our attention to the terms and conditions of the contract of employment it was argued by learned Counsel for the appellant that appellant under Clause 15 of the agreement was under an -obligation to file an affidavit that no criminal case is pending against him. While drawing our attention to the terms and conditions of the contract of employment it was argued by learned Counsel for the appellant that appellant under Clause 15 of the agreement was under an -obligation to file an affidavit that no criminal case is pending against him. The respondent No. I has filed an affidavit on 26-2-2009 stating that no criminal case is pending against him whereas a criminal case was pending against him which is apparent from the letter dated 13-10-2008 issued by the State Economic Offences Investigation Bureau. Thus, the respondent No. 1 is guilty of furnishing incorrect information and even otherwise in view of Clause 15 of the terms and condition of agreement the services were liable to be dispensed with. In support of his submissions,' learned Counsel for the appellant has placed reliance on the decisions reported in Bank of India Vs. O.P. Swarnakar, AIR 2003 SC 858 , Hotel Sea Gull Vs. State of W.B. and others, (2002) 4 SCC 1 , Kulchhinder Singh and others Vs. Hardayal Singh Brar and others, AIR 1976 SC 2216 and Indian Airlines Corporation Vs. Sukhdeo Rai, AIR 1971 SC 1828 . However, the learned Counsel for the appellant fairly conceded that the order dated 4-12-2009 (Annexure P-1) is punitive in nature and no notice was issued to the respondent No. 1 before passing such order. 6. On the other hand, Shri Praveen Dubey, learned Counsel for the respondent No. 1 while opposing the submission made by learned Counsel for the appellant, submitted that the Chief Medical and Health Officer is the Competent Authority to issue the cheques. The respondent No. 1 cannot be held responsible for the issuance of bearer cheques. In view of the resolution of the State Health Committee, dated 4-8-2008 the respondent No. 1 is entitled to continue till the period of project. It was further submitted that all other employees except the respondent No. 1 have been permitted to continue in the project. The order passed by the learned Single Judge is perfectly just and legal which does not call for any interference by this Court in this intra-Court appeal. 7. We have considered the submissions made on both sides. Admittedly, the respondent No. 1 was appointed on contract basis and his service conditions are governed by the terms and conditions contained in agreement dated 20-2-2009 (Annexure P-6). 7. We have considered the submissions made on both sides. Admittedly, the respondent No. 1 was appointed on contract basis and his service conditions are governed by the terms and conditions contained in agreement dated 20-2-2009 (Annexure P-6). The fact that period of contract appointment of respondent No. 1 had not expired when the order dated 4-12-2009 terminating his services was passed and the fact no notice in terms of Clause 8 of the agreement has been given to the respondent No. 1 before terminating his services is not in dispute. 8. Article 21 of the Constitution of India confers right to work and earn livelihood. Deprivation of means of livelihood must be by a just fair and reasonable procedure prescribed by law. When the employer decides to terminate the services of an employee on the ground of misconduct, an opportunity of hearing has to be afforded to the concerned employee even though his appointment may be contractual in nature. [See: Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress, (1991) Supp. (1) SCC 600] Clause 8 of the agreement provides that in case the performance of an employee is not found satisfactory, the contract of employment can be terminated by affording an opportunity of hearing to the concerned employee. The services of respondent have been dispensed during subsistence of his employment on the ground that his integrity is doubtful. The order of termination is obviously punitive in nature and, therefore, could not have been passed without affording an opportunity of hearing. It is further in violation of Clause 8 of the agreement as admittedly no opportunity of hearing was afforded before termination of the services of respondent No. 1. The impugned order is further contrary to the law laid down by the Supreme Court and thus cannot be upheld in view of the settled legal position and as such the same has rightly been set aside by the learned Single Judge. However, the learned Single Judge instead of granting liberty to the appellant to proceed against the respondent No. 1 afresh in accordance with the terms and" conditions of the agreement, has issued a direction to the appellant herein to issue the order of reinstatement which cannot be approved in the facts of the case. 9. However, the learned Single Judge instead of granting liberty to the appellant to proceed against the respondent No. 1 afresh in accordance with the terms and" conditions of the agreement, has issued a direction to the appellant herein to issue the order of reinstatement which cannot be approved in the facts of the case. 9. In our considered opinion once learned Single Judge found that order of termination of services of the respondent No, 1 is procedurally ultra vires, instead of deciding the veracity of the charge levelled against the respondent No. 1 liberty ought to have been -granted to the appellant to proceed afresh against respondent No. 1. Accordingly, we modify the order passed by the learned Single Judge to the extent it directs the appellant herein to issue an order of appointment within a period of two weeks and direct that the appellant would be liberty to take action against the respondent No. 1 after complying with the procedure prescribed in Clause 8 of the Agreement. Needless to state, the appellant shall issue notice to the respondent No. 1 and afford an opportunity of hearing and shall pass a speaking order. While passing the order the Competent Authority shall bear in mind the resolution dated 4-8-2008 passed by State Health Committee and shall deal with the case of respondent No. 1 with utmost objectivity. The aforesaid exercise shall be completed within a period of two months from the date of production/receipt of certified copy of the order. 10. Accordingly, the writ appeal is disposed of.