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2015 DIGILAW 587 (ORI)

SUSANTA KUMAR TRIPATHY v. STATE OF ORISSA

2015-10-13

BISWANATH RATH, D.H.WAGHELA

body2015
JUDGMENT : Biswanath Rath, J. 1. By filing this Writ petition, the petitioner has sought quashing of the order dated 08.07.2015 passed by the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No. 1289 of 2015 and thereby also quashing the order dated 23.04.2015 terminating his service with effect from 27.03.2015, the order impugned in the Original Application. Short facts of the petition are that, due to inordinate delay in the recruitment, many posts in Government establishments remained vacant and unfilled, which resulted increase of workload in different establishments. Government of Orissa was sometimes forced to cope with the work by engagement of retired Government servants in particular regular vacancies but on temporary or contractual basis. In order to avoid the complications in such temporary and contractual engagement, Government in General Administration Department issued the resolution dated 27.08.2014 prescribing certain guidelines in the matter of engagement of retired Government servants. Under Clause 2 of the said resolution, prescription has been made to fix eligibility criteria for the officers who have retired from Government, service on attaining the age of superannuation but who are below the age of 65 years, having good service career and also physically fit to be considered for re-employment. Under Clause 4, it has been provided that re-employment shall be made initially for a period of two years and can be extended for subsequent period of two years with spells of one year each subject to satisfactory performance up to a total period of four years but not beyond the age of 65 years of age or till the posts are filled up by regular process, which ever is earlier. 2. Petitioners case herein is that he retired from the Government service as an Assistant Engineer (Electrical) on attaining the age of superannuation on 31.12.2013 and was reemployed as an 'Officer on Special Duty' on contractual basis by the Government in Works Department vide letter dated 11.03.2015 and was posted against a vacant post under GE. Sub-Division-1, Cuttack. Petitioner further averred that, while he was discharging his duties smoothly, a Vigilance Case was initiated against him on the allegations of demanding and accepting illegal gratification and it was registered as Cuttack Vigilance P.S. Case No. 12 dated 26.03.2015, charging the petitioner Under Section 13(2) read with Sections 13(1)(d) and 7 of the Prevention of Corruption Act, 1988. Petitioner further averred that, while he was discharging his duties smoothly, a Vigilance Case was initiated against him on the allegations of demanding and accepting illegal gratification and it was registered as Cuttack Vigilance P.S. Case No. 12 dated 26.03.2015, charging the petitioner Under Section 13(2) read with Sections 13(1)(d) and 7 of the Prevention of Corruption Act, 1988. On registration of the above Vigilance Case, the petitioner was arrested on 27.03.2015. Petitioner remained in custody till 09.04.2015 and was finally released on bail pursuant to the order of this Court dated 22.04.2015. Consequent upon release of the petitioner on bail, on 23.04.2015 an Office Order was issued terminating his service with effect from 27.03.2015 on the premises of his arrest and initiation of a Vigilance Proceeding against him. 3. Being aggrieved by the order of termination dated 23.04.2015, the petitioner approached the Orissa Administrative Tribunal by filing O.A. No. 1289 of 2015. Petitioner challenged the order of disengagement on the premises that, before taking the impugned action, the authority ought to have resorted to the provisions contained in Article 311(2) of the Constitution of India. Upon notice in the Original Application, learned State Counsel appearing before the Tribunal submitted that the impugned order of termination was based on the involvement of the petitioner in Vigilance P.S. Case No. 12 dated 26.03.2015, under Section 13(2) read with Sections 13(1)(d) and 7 of the Prevention of Corruption Act, 1988 and on the allegation of demanding and accepting illegal gratification to the tune of Rs. 50,000/-. Learned State Counsel had further submitted that since the petitioner was caught red handed and trapped while accepting the bribe of Rs. 50,000/- (Fifty Thousand), he did not deserve benefit of re-employment and as such there was no illegality in the impugned order. The Original Application was finally heard and disposed of by an order of dismissal of the Original Application, relying on Clause 2 of the terms and conditions of the appointment. Since the petitioner has been disengaged on the premises of misconduct, misappropriation and negligence in duties there was no need for notice before such disengagement. Being aggrieved by dismissal of the Original Application, the petitioner filed the present writ petition. 4. Since the petitioner has been disengaged on the premises of misconduct, misappropriation and negligence in duties there was no need for notice before such disengagement. Being aggrieved by dismissal of the Original Application, the petitioner filed the present writ petition. 4. Learned Senior Counsel appearing for the petitioner contended that the petitioner being an employee in the Government establishment, holding a key post, in spite of being under a temporary and contractual engagement, the service conditions attached to employees under the Government establishment, particularly the provisions of Orissa Government Service Conduct Rule, 1957 applied and the disengagement order not having followed the provisions thereof, it was bad in law. Learned Senior Counsel further contended that since the termination of service took place only on initiation of a Vigilance proceeding and particularly in absence of any finding of misconduct by the petitioner, the provisions contained in Article 311(2) of the Constitution ought to have been complied before disengaging the petitioner. Therefore, learned senior counsel for the petitioner claimed that the order of termination as also the order of the Tribunal, were liable to be set aside. 5. On the other hand, Sri Sahoo, learned Addl. Government Advocate appearing for the State vehemently objected and contended that the petitioner was not only a temporary employee but also engaged on contractual basis under specific terms and conditions provided vide resolution dated 27.8.2014 of the General Administration Department specifically relating to engagement of retired Government servants and further in view of the specific condition in the offer of re-employment at Clause 2 of the Office Order dated 11.03.2015, the order of disengagement cannot be faulted. Sri Sahoo, further submitted that the petitioner being a temporary and contractual employee with specific terms and conditions and having agreed to join the post on specific conditions, has no right to oppose implementation of the conditions in the offer of appointment and as such he is estopped from raising such objections. Learned State Counsel further contended that there was no illegality in terminating the petitioner without notice upon being found to be involved in misappropriation. On that premises, learned State Counsel submitted that there was no illegality in the impugned order passed by the Orissa Administrative Tribunal. 6. Learned State Counsel further contended that there was no illegality in terminating the petitioner without notice upon being found to be involved in misappropriation. On that premises, learned State Counsel submitted that there was no illegality in the impugned order passed by the Orissa Administrative Tribunal. 6. Learned senior counsel for the petitioner, apart from making his submissions on the merit of the case, also relied upon the citations as under: (1), AIR 1958 SC 36 (Purusottam Lal Dhingra v. Union of India) (2) 1979 (2) SLR 651 (AP) (Ilyas Ahmed v. Station Director, AIR) (3), AIR 1991 SC 537 (Srilekha Vidyarthi v. State of U.P.) (4), AIR 1991 SC 2010 (Union of India v. K.V. Jankiraman) (5), AIR 1992 SC 1685 (State of Gujarat v. T.J. Kampavat) (6), AIR 2007 SC 1706 (Coal India Ltd. v. Saroj Mishra) (7), AIR 2009 SC 2375 (Uma Nath Pandey v. State of U.P.) (8), 2010 (15) SCC 305 (State of U.P. v. Ram Vinai Sinha) (9), AIR 2012 SC 729 (Gridco Ltd. v. Sadananda Doloi) (10), Vol.-118 (2014) CLT 997 (Dr. Uttam Kumar Samanta v. KIIT University) Similarly, Mr. Sahoo, learned Additional Government Advocate apart from making his submission on the merit of the case, relied upon decision of the Hon'ble Apex Court in 2011 (15) SCC 16 . 7. Under the above facts and circumstances, the short question that falls for consideration of this Court is whether the provisions contained in Article 311(2) of the Constitution of India were applicable to the petitioner before passing the impugned order of disengagement? 8. It is admitted at the Bar that the petitioner had superannuated on 31.12.2013. There is also no denial to the fact that the petitioner was re-employed as an Officer on Special Duty on contractual basis by the Government of Odisha in the Works Department vide communication dated 11.03.2015 and the offer of appointment vide Clause-2 read as under: "(ii) The re-employment may be terminated at any time for dissatisfactory performance by Works Department on notice of one month. In case of any misconduct including misappropriation, negligence in duty or causing loss to Government, the services may be terminated without any prior notice." 9. In case of any misconduct including misappropriation, negligence in duty or causing loss to Government, the services may be terminated without any prior notice." 9. The above clause contained in the offer of appointment has a clear indication that in case of any misconduct including mis-appropriatic negligence in duty or causing loss to Government, the services may be terminated without any prior notice. From the order of disengagement, it clearly appears that there has been some sort of preliminary inquiry held against the temporary servant and following such assessment, the service of the petitioner is dispensed with in accordance with the terms of Clause (ii) of the contract. Such disengagement could not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of Article 311(2) . 10. Hon'ble Apex Court has, in Champaklal Chimanlal Shah v. The Union of India AIR 1964 SC 1854 held: "The third proposition must be restricted only to those cases whether of temporary Government servants or others, where Government purports to act under Art. 311(2) but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or removal. The same view has been taken in Jagadish Mitter v. Union of India (, AIR 1964 SC 449 ) (1) We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services - were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which Art. 311(2) applied. It was in our opinion an order which was justified under R. 5 of the rules and the appellant was not entitled to the protection of Art. 311(2) in the circumstances." 11. Similarly, in Union Territory of Tripura Agartala v. Gopal Chandar Dutta Choudhury, ( AIR 1963 SC 601 ) the Constitution Bench held: "We are unable to agree with the judicial Commissioner that the termination of employment of the respondent by the Superintendent of Police by order dated December 6, 1957, was in violation of Art. 311(2) of the Constitution. It is true that before the respondent was discharged from service no enquiry was made as to any alleged misconduct, nor was he given any opportunity of showing cause against the proposed termination of employment. It is true that before the respondent was discharged from service no enquiry was made as to any alleged misconduct, nor was he given any opportunity of showing cause against the proposed termination of employment. But it is well settled that when employment of a temporary public servant, is terminated pursuant to the terms of a contract, he is not entitled to the protection of Art. 311(2) " 12. In another case of termination/disengagement of a temporary employee, in Satish Chandra Anand v. The Union of India, ( AIR 1953 SC 250 ) the Constitution Bench of the Apex Court held as under: "The discharge- (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule. "These terms are used in the same sense in Article 311 . It follows that the article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the right, and remedies available to other persons similarly situated-to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived. Article 16(1) is equally inapplicable. The whole matter rests in contract. When the petitioner's first contract (the five year one) came to an end, he was not a permanent Government servant and Government was not bound either to reemploy him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16(1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations Government is, subject to the qualification mentioned above, as free to make special, contracts of, service with temporary employees, engaged in, works of a temporary nature, as any other employer. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under Article 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed. When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time, we have no alternative but to dismiss the petition with costs." 13. Coming to another case in GRIDCO Ltd. and Anr. v. Sadananda Doloi and Ors. (2011) Vol. 15 SCC 16 : ( AIR 2012 SC 729 ), the Hon'ble Apex Court held as follows: "42. Coming to another case in GRIDCO Ltd. and Anr. v. Sadananda Doloi and Ors. (2011) Vol. 15 SCC 16 : ( AIR 2012 SC 729 ), the Hon'ble Apex Court held as follows: "42. We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise." 14. Learned Senior Counsel for the petitioner has referred to the above mentioned cases but we find that none of the citation is applicable in the case of the petitioner., AIR 2012 SC 729 (2011) vol. 15 SCC 16 cited by the petitioner on the other hand goes against the petitioner. 15. In the factual background as narrated hereinabove as also the settled position of law as indicated hereinabove, we answer the issue in negative and concur with the view of the Tribunal that there was no scope of application of Article 311(2) of the Constitution of India in the case of the petitioner, even as he was not holding a substantive post in the Government service, but he was re-employed in terms of special contract of service. We thus find no error in the impugned judgment of the State Administrative Tribunal in O.A. No. 1289 of 2015. Consequently, the petition is dismissed. However, there is no order as to cost. Final Result : Dismissed