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Himachal Pradesh High Court · body

2019 DIGILAW 1861 (HP)

Bandna Kumari v. Bhakra Beas Management Board

2019-12-05

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - Aggrieved by the order of her termination dated 30.10.2017 (Annexure P-8), the petitioner has filed the instant petition for the grant of following substantive reliefs: "(i) That impugned order dated 30.10.2017, Annexure P-8, may kindly be quashed and set-aside. (ii) That the respondents may be directed to release the vacation salary to the petitioner." 2. On 9.4.2015, the petitioner was engaged as "School Mother" in BSL Senior Secondary School, Slapper, District Mandi, H.P. as a part time worker for discharging the duties for duration of four hours in a day during the school time. At that time, the sanction available from the Chief Engineer was for engagement of two part time School Mothers, out of which, the petitioner was engaged against one sanction, as such, for short spell of 89 days with intermittent breaks till and including the month of March, 2017. The petitioner had voluntarily accepted her engagement as School Mother. However, in March, 2017, the services of the petitioner had to be engaged due to nonsanction of part-time engagement for the work of School Mother. Thereafter, taking a sympathetic view, the respondent adjusted the services of the petitioner and engaged her as a Lab Assistant on part time basis in the month of April, 2017 and continued as such till August, 2017. But thereafter the services of the petitioner were terminated on 30.10.2017, constraining her to file the instant petition. 3. The moot question is whether the petitioner has any right to file the instant petition. For there is a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief "damages or reinstatement with consequential relief" is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by Courts. (Refer : Dr. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by Courts. (Refer : Dr. S.Dutt vs. University of Delhi, (1958) AIR SC 1050 ; Executive Committee of U.P. State Warehousing Corporation Ltd. vs. Chandra Kiran Tyagi, (1970) 2 SCR 250 ; Sirsi Municipality vs. Cecelia Kom Francies Tellis, (1973) 3 SCR 348 , Executive Committee of Vaish Degree College vs. Lakshmi Narain, (1976) 2 SCR 1006 ; Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir, (1981) AIR SC 122 and Dipak Kumar Biswas vs. Director of Public Instruction, (1987) AIR SC 1422 . 4. Adverting to the present case, it would be noticed that the petitioner is in private employment governed by contract. Therefore, the only remedy, if any, available to her for the redressal of her grievances is by way of civil suit. It is more than settled that where the relation of master and servant is purely contractual, a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. 5. It is then contended by Mr. Tara Singh Chauhan, learned counsel for the petitioner that the order of termination of services may hamper the future prospects of the petitioner in getting employment. However, even this contention is without merit as no inference can be drawn from the termination order that it casts stigma on the petitioner, which is clearly evident from the termination order which reads as under: "To Bandna Devi, Part-time, Worker, Subject: Removal from the post of Part-time Worker (Mali). Your work and conduct is not found satisfactory. Therefore, you are removed from the work of Part-time Worker (Mali) today dated 30/102017 with immediate effect. Sd/- Principal, Govt. B.S.L.Sr. Secondary School, Slapper, Distt. Mandi, H.P." 6. Your work and conduct is not found satisfactory. Therefore, you are removed from the work of Part-time Worker (Mali) today dated 30/102017 with immediate effect. Sd/- Principal, Govt. B.S.L.Sr. Secondary School, Slapper, Distt. Mandi, H.P." 6. No doubt, it has been mentioned that the work and conduct of the petitioner was not found to be satisfactory but that cannot be considered stigmatic. In reaching such conclusion, I am supported by the judgment of the Hon''ble Supreme Court in Allahabad Bank Officers Association and another vs. Allahabad Bank and others, (1996) 4 SCC 504 , the termination order contained remarks like "want of application to Bank''s works", "lack of potential" and "found not dependable" and it was held that the remarks cannot be construed to be causing a stigma. It is apt to reproduce the relevant observation of the Hon''ble Supreme Court, which reads as under: "19. .......Therefore, it can be said without any doubt that the remarks "want of application to Bank''s works", "lack of potential" and "found not dependable" have been made in relation to his work and not for any other purpose. Even the dependability which is referred to is also in connection with the Bank''s work. Any person reading the letter or the order of compulsory retirement would not be led to believe that there was something wrong with Appellant 2 as regards his conduct or character. They would only indicate that he had ceased to be useful to the Bank in his capacity as a Manager. Therefore, no inference can be drawn from the said statements that they cast a stigma on Appellant 2 and that the real intention of the Bank was to punish him for some act of misconduct or lack of integrity. Whether the order of compulsory retirement attaches a stigma to the employee or not would depend upon the fats and circumstances of each case. In the context of the facts and circumstances of this case, it cannot be said that by including the aforesaid statements in the order of compulsory retirement any stigma has been attached to it. The view taken by the High Court in this behalf appears to be correct." 7. In the context of the facts and circumstances of this case, it cannot be said that by including the aforesaid statements in the order of compulsory retirement any stigma has been attached to it. The view taken by the High Court in this behalf appears to be correct." 7. In Chaitanya Prakash and another vs. H. Omkarappa, (2010) 2 SCC 623 , it was categorically held by the Hon''ble Supreme Court that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. It shall be apposite to refer to the relevant observations as contained in paras 18 to 22 of the judgment, which read thus: "18. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences, (2006) 4 SCC 469 , wherein also a similar letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination. 19. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (2003) 3 SCC 263 also the employee concerned was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. 19. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (2003) 3 SCC 263 also the employee concerned was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said decision, the Supreme Court has held that on the basis of long line of decisions it appears that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. 20. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 ; this court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this court in paragraph 21 of the aforesaid decision it was stated by this Court thus: (SCC p. 528) "21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." 21. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V. Allahabad Bank, (1996) 4 SCC 504 ; where it is stated thus: (SCC p.475, para 14) 14.......As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service." 22. In our considered opinion, the ratio of the abovereferred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language." 8. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.