Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 65 (UTT)

Manoj Kumar v. Uttarakhand Transport Corporation, Dehradun

2019-02-12

SHARAD KUMAR SHARMA

body2019
JUDGMENT : 1. The petitioner admittedly is a contractual employee who has been appointed as a Conductor through outsourcing on 27.01.2012 and was posted at Kashipur Depot, District Udham Singh Nagar. He has challenged the order dated 12.04.2018, as passed by respondent no. 3, by virtue of which, on the basis of financial irregularities and deliberately causing financial loss to the department his services as a contractual Conductor has been dispensed with and the security amount as deposited by him prior to his appointment on a contractual basis has been directed to be forfeited. 2. The brief facts, filing of the present writ petition is that the petitioner was inducted as a contractual Conductor through outsourcing on 27.01.2012, and it was while he was performing his duties on a bus, enroute from Delhi to Ramnagar, on 01.04.2018, on checking it was found that he had issued certain tickets to a passenger from Anand Vihar, Delhi to Kashipur, amounting to Rs.255/- through his electronic biometric machine (EBTM No. 00001093). The said ticket was mis-printed and therefore, it is said to have issued a reprinted copy of the said ticket to the passenger concerned. It is based on the said ground that the services of the petitioner had been terminated for the reasons, which have been given in the impugned order dated 12.04.2018 under challenged before this Court. 3. The respondent had opposed the writ petition by filing a counter affidavit contending thereof that the petitioner has committed a financial irregularity by reprinting the ticket and issuing it to a passenger and thereby has resulted into causing financial loss to the Corporation. 4. The contention of the petitioner is that looking to the gravity of the allegations where loss suffered is alleged to be of Rs.255/- only which have been leveled against him it may not call for terminating his services as it would be disproportionate to the set of allegations. 5. Charges, which have been leveled against him. 4. The contention of the petitioner is that looking to the gravity of the allegations where loss suffered is alleged to be of Rs.255/- only which have been leveled against him it may not call for terminating his services as it would be disproportionate to the set of allegations. 5. Charges, which have been leveled against him. This principle as argued by the learned counsel for the petitioner is not acceptable by this Court for the reason that the proportionality of a punishment being imposed on an employee is always considered as one of the aspects when the employee happens to be a regular employee of the department on whom the service rules as framed by the Corporation in the year, 1981 is made applicable and his services are governed by those rules. The principle of proportionately of punishment would not apply to a contractual employee, and also because allegations are of financial irregularity where quantum of loss caused becomes irrelevant. 6. Admittedly, in the instant case the petitioner is a contractual employee whose services have been availed through outsourcing and since being an outsourced contractual employee there do not exists a master and servant relationship where strict principles of service rules would apply. Hence, the disproportionality of punishment and the principles enunciated thereof and argued by the petitioner, Court is of the view that it, would not be attracted in these circumstances. 7. The another argument which have been extended by the learned counsel for the petitioner, and is also pleaded in the writ petition pertaining to the impact of the Government Order No. 02/2017/41/IX of 2016 dated 12.01.2017, though this Government order has been brought on record by the petitioner, but as per the terms contained therein, there are certain circumstances which have been narrated under where a certain latitude is expected to be granted to a contractual employee and that too only for the purpose of giving him an opportunity for reappointment on the contractual basis, the said government order has no nexus where action of discontinuance of outsourced contractual services are concerned, which is based on financial irregularities, and particularly the terms of engagement in service is governed by the terms of contract between the parties. 8. The case at hand is a case where the Corporation has suffered a financial loss due to reprinting of ticket by the petitioner and issuing it to a passenger. 8. The case at hand is a case where the Corporation has suffered a financial loss due to reprinting of ticket by the petitioner and issuing it to a passenger. The said aspect, does not fall under any of the exception clauses as given in the said government order. Hence, no benefit could be derived or extracted out of it to the petitioner and even if it is presumed that he can avail certain benefits out of which could only be for the purpose of relaxing the conditions for reappointment on contractual basis only, when the respondents reconsider the case for availing the services of the petitioner on contractual basis in future. 9. Apart from it, the government orders are always administrative decisions which are taken by the State for regulating the internal regulations/affairs of a Corporation. Since being an administrative decision they would not act as a substitute to the settled contractual terms governing the service conditions of a contractual employee with the employer. 10. Hence, this Court if of the view that no benefit or relaxation could be extended to the petitioner in terms of the government order dated 12.01.2017, since he is not covered by any of the events which have been narrated therein which only entails extension of an exemption in an event of reappointment in future. 11. The argument of the learned counsel for the petitioner is that the action which has been taken by the Assistant General Manager of terminating his services, is in contravention to the government order dated 12.01.2017, because no disciplinary committee has been constituted for taking a decision, as such prior to the passing of the impugned order dated 12.04.2018, terminating/dispensing the services of the petitioner, considering the terms of the government order itself, it nowhere contemplates that for taking an action of termination/dispensing services of a contractual employee the same is required to be placed before a committee, before a decision is taken of dispensing the services of a contractual employee nor does the said government order contemplates of constitution of any such committee. Hence also the terms of the said government order would not apply. 12. The petitioner has submitted that on perusal of the impugned order dated 12.04.2018, is made from the view point that no opportunity of hearing has been provided to the petitioner and hence the action violates the principles of natural justice. Hence also the terms of the said government order would not apply. 12. The petitioner has submitted that on perusal of the impugned order dated 12.04.2018, is made from the view point that no opportunity of hearing has been provided to the petitioner and hence the action violates the principles of natural justice. As already referred above and it should always be borne in mind that the principles of natural justice would only apply under those circumstances, one where a person succeed in showing the prejudice caused to him on account of non-providing of an opportunity of hearing. Secondly, this principal would only apply where there happens to be a settled relationship of master and servant and the incumbent has been employed in the department on a regular basis after participation in a regular selection process. This principle will not apply in relation to those employees who have been appointed on a contractual basis through outsourcing as for the purposes of attracting the principles of natural justice there has had to be a statutory master and servant relationship existing between the employee and the employer, who is a person having a status of regular incumbent and a member of service. 13. Since this is not the case covered by the aforesaid principles, this Court is of the view that looking to the set of allegations leveled in the impugned order No. 277 of 2018 dated 12.04.2018, no error could be pointed to subsist for interference under Article 226 of the Constitution of India. Consequently, the writ petition fails and is accordingly dismissed.