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2014 DIGILAW 691 (CAL)

Vivekananda College for Women v. Sikha Tapaswi

2014-07-28

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Judgment Jyotirmay Bhattacharya, J. This mandamus appeal is directed against the judgment and/or order passed by a Learned Single Judge of this Court on 24th January, 2014 in W.P. No. 1644(W) of 2009 by which the impugned order of termination of service of the writ petitioner dated 24th December, 2008 issued by the College authority was set aside and the concerned authority was directed to take appropriate steps against the writ petitioner in terms of the show-cause notice issued by the College authority and the reply given by the writ petitioner thereto. The Learned Trial Judge held that the writ petitioner would be entitled to get her salary continuously. Direction was given upon the College authority to pay the arrear salary to the writ petitioner within four months from the date of communication of His Lordship’s said order. The legality and/or correctness of the said order is under challenge in this mandamus appeal at the instance of the College authority. Let us now consider the merit of the instant appeal in the facts of the instant case. Admittedly the writ petitioner/respondent no.1 was appointed as a temporary part-time employee in the Morning Section of Vivekananda College for Women with effect from 26th September, 2003 to 22nd December, 2003. It was stipulated in the appointment letter issued by the College authority that the writ petitioner/respondent no.1 was required to abide by the terms and conditions stipulated by the College authority. The terms and conditions which the writ petitioner/respondent no.1 was required to comply with are as follows :- “(i) Strict punctuality should be maintained and (ii) 3 days absent means deduction of 1 day salary.” Such contractual engagement of the writ petitioner/respondent no.1 was extended by the College authority from time to time till 16th March, 2005. Thereafter though no formal extension was given for renewing such contract, but, in fact, the writ petitioner was allowed to continue till 1st January, 2009. The College authority was not satisfied with the service which the writ petitioner/respondent no.1 was rendering to the College authority for various reasons such as want of punctuality, irregularity in attendance, not performing her duties to the satisfaction of the College authority etc. Accordingly, a show-cause notice was issued by the College authority on 17th July, 2008. The College authority was not satisfied with the service which the writ petitioner/respondent no.1 was rendering to the College authority for various reasons such as want of punctuality, irregularity in attendance, not performing her duties to the satisfaction of the College authority etc. Accordingly, a show-cause notice was issued by the College authority on 17th July, 2008. By the said show-cause notice, the writ petitioner/respondent no.1 was called upon to submit her explanation in writing within seven days from the date of issue of the notice as to why no disciplinary proceedings should not be initiated against the writ petitioner/respondent no.1 for her prolonged willful and deliberate misconduct, dereliction of duty, negligence in her duty and work and unauthorized frequent absence from duty. The writ petitioner/respondent no.1 submitted her reply to the said show-cause notice to the College authority vide her letter dated 27th July, 2008. Subsequently the Governing Body of the said College in its meeting held on 20th December, 2008 unanimously resolved not to proceed with the show-cause since the writ petitioner/respondent no.1 was engaged as a temporary employee and she was not appointed in any sanctioned post in the Morning Section of the College. Considering the workload of the Morning Section of the said College and the paucity of fund, the Governing Body of the said College resolved unanimously to disengage the writ petitioner/respondent no.1 as her service was no longer required with effect from 2nd January, 2009. The said decision of the Governing Body of the said College was challenged by the writ petitioner/respondent no.1 herein in the writ petition. We have already mentioned above as to how the said writ petition was ultimately decided by the Learned Trial Judge. The Learned Trial Judge held that since the College authority is a public organisation discharging public function, it was expected that such a public organisation should not act in gross violation of principle of natural justice and fair play. The Learned Trial Judge also held that when a show-cause notice was served upon the writ petitioner and the writ petitioner replied to the said show-cause notice, the concerned authority ought not to have terminated her service without giving the writ petitioner an opportunity of hearing and without informing her as to the decision which was taken by the concerned authority on the reply submitted by her. Let us now consider as to how far the Learned Trial Judge was justified in coming to the aforesaid conclusion in the facts of the instant case. Here is the case where we have already mentioned above that the writ petitioner/respondent no.1 was never appointed against any permanent post. Considering the workload in the Morning Section of the said College, she was engaged temporarily on part-time basis. Her service was not protected by any statute. She was engaged purely on contractual service. As such, when the College authority found that the workload no longer justified her retention and accordingly disengaged her, the Writ Court, in our considered view, ought not to have issued any writ of mandamus directing the College authority to retain the said temporary part-time employee in service. Writ of mandamus can only be issued when it is needed for protection of fundamental right of the petitioner or when the statutory right of the petitioner which is capable of implementation is violated. It has been uniformly held by the Hon’ble Apex Court in several decisions that mandamus can be issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the publication. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. In this regard reference may be made to the following decisions of the Hon’ble Supreme Court :- (i) In the case of Kalyan Singh Vs. State of U.P. reported in AIR 1962 SC 1183 and (ii) In the case of Director of Settlements, A.P. Vs. M.R. Appa Rao & Anr. reported in (2002) 4 SCC 638. In this regard reference may be made to the following decisions of the Hon’ble Supreme Court :- (i) In the case of Kalyan Singh Vs. State of U.P. reported in AIR 1962 SC 1183 and (ii) In the case of Director of Settlements, A.P. Vs. M.R. Appa Rao & Anr. reported in (2002) 4 SCC 638. In the instant case, in our considered view, none of the conditions for issuance of the writ of mandamus is satisfied as the writ petitioner/respondent no.1 was engaged on purely temporary basis without following any selection procedure and not even against any sanctioned post and her service was governed by contract without any support from any statute and/or any statutory provisions and she was never paid her salary out of the State exchequer. Before parting with, we like to mention here that this is also not a case where we find that the writ petitioner/respondent no.1 was removed even from her temporary employment with a stigma. No disciplinary proceeding was initiated against her. Only a show-cause notice was served upon her, but ultimately such show-cause notice also was abandoned after submission of the reply to the said show-cause notice by the writ petitioner/respondent no.1. Since no stigma was attached while discontinuing the service of the writ petitioner/respondent no.1 by the College authority, we cannot hold that the College authority committed any irregularity in discontinuing her service when the College authority found that the workload and paucity of fund do not justify continuation of her service anymore. We thus cannot agree with the conclusion which was drawn by the Learned Trial Judge. The impugned order thus stands set aside. The appeal is thus allowed. The decision of the Governing Body of the College authority in discontinuing the service of the appellant with effect from 2nd January, 2009 is approved. Re: CAN 4165 of 2014 (Stay) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the stay application. The stay application being CAN 4165 of 2014 is thus deemed to be disposed of. Ishan Chandra Das, J. : I agree.