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Jharkhand High Court · body

2018 DIGILAW 2037 (JHR)

Rajni Kant Singh v. State of Jharkhand

2018-09-11

APARESH KUMAR SINGH

body2018
ORDER : Heard learned counsel for the parties. 2. These petitioners are 18 out of 44 who were appointed as Shop Supervisor on contractual basis pursuant to the Advertisement No. 343 dated 25.04.2017 (Annexure-1) issued by the Jharkhand State Beverages Corporation Limited, Ranchi (hereinafter referred to as ‘Corporation’). 3. All of them are Ex-servicemen in the rank of Junior Commissioned Officer (JCO) who were given preference in terms of the advertisement. As per job description of Supervisory personnel, duration of assignment was initially for six months; if the performance is satisfactory, tenure would be extended by another 30 months; they would receive consolidated salary of Rs. 30,000/- per month; besides salary, they may be reimbursed the cost of their travel and mobile expenses, subject to limits laid down by the Corporation. The Shop Supervisors had responsibility of general oversight of the retail shop in the area in which he is made responsible which included monitoring the general up-keep of the retail shop; monitoring proper stacking of boxes of IMFL and bags of country liquor; taking steps to ensure that all brands of liquor are available at the retail sale point by monitoring the stock at the shop and continuously interacting with the shop personnel and the depot Corporation; periodic verification of deposit of cash collected by the shop personnel; period verification of broken and damaged bottles and pouches of liquor; regular interaction with all stakeholders to ensure that sale of liquor is managed by shop personnel. After facing interview, these petitioners along with other 44 personnel were appointed and posted in different districts by Office Order No. 42 dated 24.04.2017 bearing Memo No. 757 (Annexure-4). Clause 4 of the Appointment Order prescribed that they would be under probation for three months and only on satisfactory services, their contract would be extended. Their contract was not extended formally by any office order after six months, but they have continued at their respective places. They got aggrieved by issuance of an order bearing no. 05 dated 01.06.2018 (Annexure-6) by the Corporation, where under they were to be disengaged after notice of one month. This propelled the petitioners to approach this Court. 4. Their contract was not extended formally by any office order after six months, but they have continued at their respective places. They got aggrieved by issuance of an order bearing no. 05 dated 01.06.2018 (Annexure-6) by the Corporation, where under they were to be disengaged after notice of one month. This propelled the petitioners to approach this Court. 4. Petitioners contend that their engagement are being terminated with effect from one month from the date of issuance of letter 01.06.2018 in an illegal and arbitrary manner, in violation of principles of natural justice as no opportunity to show-cause has been given. They have also prayed for being allowed to continue in their respective post as no fault can be attributed against them in discharge of their duty. Learned counsel for the petitioners has relied upon certain reports at Annexure-7 series being letter dated 12.04.2018 of Superintendent of Excise, West Singhbhum, Chaibasa, letter dated 19.04.2018 of Assistant Commissioner of Excise, Ramgarh, letter dated 31.05.2018 of Assistant Commissioner of Excise, East Singhbhum, Jamshedpur, Annexure-10 series dated 21.07.2018 of Assistant Commissioner of Excise, Ranchi, letter dated 07.04.2018 of Superintendent of Excise, Dumka, letter dated 25.04.2018 of Inspector of Excise, Dhanbad and Annexure-11 series being letters dated 10.01.2018, 16.03.2018 and 28.04.2018 of Superintendent of Excise, Giridih. They have also enclosed a communication bearing no. 268 dated 09.03.2018 from the Assistant Commissioner of Excise, Hazaribagh which contains the daily attendance register in support of the claim of petitioner nos. 12, 13 and 16 that they have worked regularly at their place of posting. Learned counsel for the petitioners has referred to Rule 28 of 2017 Rules of Excise and Prohibition Department contained in Notification dated 13.07.2017. He submits that the services of the petitioners would have been dispensed with only after proper inquiry and on the grounds of unsatisfactory service. The stand taken by the Respondent Corporation in the impugned order and also in the Minutes of the meeting dated 28.05.2018 (Annexure-B & C to the counter affidavit) are contrary to the certificates enclosed by the petitioners in support of their satisfactory service. As such, the impugned decision is arbitrary, illegal and in violation of principles of natural justice as it seeks to terminate their contractual engagement without any justifiable reasons. It is a colourable exercise of power. 5. As such, the impugned decision is arbitrary, illegal and in violation of principles of natural justice as it seeks to terminate their contractual engagement without any justifiable reasons. It is a colourable exercise of power. 5. Counsel for the Respondent Corporation submits that the engagement of Shop Supervisors did not lead to the desired result. The purpose for which such contractual engagement was made, did not achieve its objective. Out of 44 JCOs appointed by the common order (Annexure-4), only 18 have remained, rest have left service or are unavailable. Corporation has not been paying any salary to those personnel. The Corporation in its meeting held on 16.05.2018 under the Chairmanship of Secretary of the Department and attended by the officials of Excise Department from various districts, resolved to do away with the services of the Shop Supervisors/JCOs as their work was not satisfactory. It was resolved not to extend the services of the Shop Supervisors. Learned counsel for the Corporation submits that the engagement of the petitioners was contractual in nature and no legal right to continue or seek regularization can be made by them. If the services of the Shop Supervisor were not required, Corporation being the employer was well within its right not to extend their services. He submits that the impugned order besides referring to evaluation of the service of the petitioners, has also clearly referred to the main reason that the whole purpose for engagement of these Shop Supervisors was not being fulfilled. In that light, a decision has been taken not to extend the services of the petitioners by giving one month prior notice. The decision to disengage them is not stigmatic in nature and is not going to affect their future engagement. As such, any interference in the matter in exercise of the power under Article 226 of Constitution of India is wholly uncalled for. Learned counsel has placed reliance on the judgment of the Apex Court in the case of GRIDCO Limited and another versus Sadananda Doloi and others [ (2011) 15 SCC 16 ]. Learned counsel for the Respondent Corporation however, submits that admissible salary and allowance for the period petitioners have discharged their duties, would be paid by the Corporation. 6. Considered the submission of learned counsel for the parties and the relevant material pleadings and documents relied upon by them, as noted above. Learned counsel for the Respondent Corporation however, submits that admissible salary and allowance for the period petitioners have discharged their duties, would be paid by the Corporation. 6. Considered the submission of learned counsel for the parties and the relevant material pleadings and documents relied upon by them, as noted above. Two questions are posed to be answered in order to determine the controversy herein, (i) what was the true nature of the appointment of the petitioners and (ii) if the appointment was contractual, was the termination vitiated by legal infirmity calling for interference under Article 226 of the Constitution of India. The answer to the first question is not difficult to find. Petitioners were engaged purely on contractual basis for a period of six months which was subject to extension of maximum period of 30 months upon satisfactory service. There was no guarantee of regular appointment flowing out of their engagement or any permanence in service. Respondent Corporation did not formally extend the services of the petitioners by issuing an office order after six months of their engagement but they de-facto continued. Out of 44 persons who were appointed, it is stated by the Corporation that services of 22 are unavailable and only 18 are agitating their grievances. The Corporation had engaged services of these persons with an objective to supervise the retail shops in the light of the policy decision of the State to conduct retail business in the State. These personnel were posted over different districts in the State. On factual score, evidently the findings of the Respondent Corporation in the impugned order relating to unsatisfactory service of the petitioners are controverted by the documents enclosed by the petitioners at Annexure-7, 10 & 11 series, noted above. On this ground, the Corporation’s stand is on weak footing. However, when viewed otherwise, Corporation has not disengaged one or the other Shop Supervisors on pick and choose basis. The decision to disengage is actuated also on the ground that the whole scheme has failed its objective. Out of 44 persons initially engaged, 18 are left who definitely cannot be expected to man and supervise all the retail shops within the State. The engagement of the petitioners was extendable on evaluation of satisfactory service after a period of six months. Petitioners have not got any formal extension of service. Out of 44 persons initially engaged, 18 are left who definitely cannot be expected to man and supervise all the retail shops within the State. The engagement of the petitioners was extendable on evaluation of satisfactory service after a period of six months. Petitioners have not got any formal extension of service. Petitioners as such, could not also claim permanence or regularization in service if the employer chose to take a policy decision not to continue with their services. Even if the issue of satisfactory service of the petitioners is kept in account, the Corporation if chose to dispense with the services of all such JCOs on the specific ground that the whole scheme has not served its purpose and there is no point in extending their contractual engagement, the same cannot be found fault with on the test of arbitrariness. 7. Counsel for the Respondent Corporation has submitted that the Corporation does not intend to continue with the scheme of engaging Shop Supervisors any further. Viewed thus in the light of the observation of the Apex Court in the case of GRIDCO Limited (Supra), petitioners cannot claim any protection against such termination. Renewal of the contract of employment depended upon the perception of the management as to the usefulness of the petitioner and the need for an incumbent in the position held by him. These aspects rested entirely in the discretion of the Corporation. Opinion of the Hon’ble Supreme Court contained in paragraph-38 and 41 is reproduced hereunder: “38. A conspectus of the pronouncements of this Court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. 41. With the development of law relating to judicial review of administrative actions, a writ court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. 41. It is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three months’ notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter.” 8. Applying the above principle, this Court is of the view that the petitioners could not show a legal right for continuance in such contractual engagement. Termination of their services with one month notice therefore, does not suffer from such legal infirmity which calls for interference under Article 226 of Constitution of India. 9. In view of the discussions made hereinabove and for the reasons recorded, this Court does not find any merit in the writ petition, which is accordingly dismissed. Interim order dated 28.06.2018 stands vacated.