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2023 DIGILAW 325 (JK)

Manzoor Ahmad Bhat v. Union Of India

2023-08-02

SANJAY DHAR

body2023
JUDGMENT : 1) The petitioner has challenged order 19.06.2007 as also notice of termination dated 21.05.2007, issued by respondent No.2, whereby services of the petitioner have been terminated. 2) Briefly stated, case of the petitioner is that he was appointed as a Laboratory Assistant for Ex-servicemen Contributory Health Scheme (ECHS) in terms of appointment order dated 04.10.2004. The term of the petitioner’s engagement was extended in terms of agreement dated 30.10.2005 for a period of 11 months and in the year 2006, by virtue of another agreement his term of engagement was further extended. According to the petitioner, he performed his duties to the best of his ability and satisfaction of his employers, but he was served with a termination notice dated 21.05.2007 by respondent No.3. The petitioner is stated to have responded to the said termination notice, but his explanation did not find favour with respondent No.2, who, without following the principles of nature justice and without holding any enquiry, issued the impugned order of termination dated 19.06.2007. 3) The petitioner has challenged the action of the respondents on the grounds that respondent No.3 was not competent to issue the termination notice and that the services of the petitioner could not have been terminated without holding any enquiry and without adhering to the principles of natural justice, particularly when the order of termination is stigmatic in nature. 4) The writ petition has been contested by the respondents by filing a reply thereto. In their reply, the responders have submitted that the petitioner was a contractual employee whose agreement for engagement was initially for a period of 11 months, whereafter he was asked to execute further agreements from time to time and lastly, the agreement for renewal of his engagement was executed on 6th September, 2006. It has been submitted that the engagement of the petitioner was made in terms of agreement dated 1st November, 2004 and thereafter in terms of agreement dated 03.10.2005 and lastly in terms of agreement dated 6th September, 2006. It has been submitted that the notice of termination has been issued by respondent No.3 on behalf of respondent No.2 and the order of termination has been issued by a competent authority i.e., respondent No.2. It has been submitted that the notice of termination has been issued by respondent No.3 on behalf of respondent No.2 and the order of termination has been issued by a competent authority i.e., respondent No.2. According to the respondents, the petitioner was given ample opportunities to show improvement in his behaviour, but he did no cooperate and continued to behave in an uncivilised and unprofessional manner for which he was warned thrice in terms of letters dated 7th April, 2007, 27th April, 2007 and 8th May, 2007. It has been further submitted that when reply of the petitioner was not found to be plausible, his engagement was terminated in accordance with the terms of the agreement. 5) I have heard learned counsel for the parties and perused the record of the case. 6) It is not in dispute that the petitioner was working as a contractual employee with the respondents and, as such, terms of his engagement are governed by the agreement of employment executed by him with the respondents. The termination of the petitioner has been effected by the respondents by taking resort to Clause (11) of the agreement, which reads as under: 11. The ECHS shall have the right to terminate this agreement by giving one month's notice to the Engaged Person or one month's consideration as compensation in lieu thereof without prejudice to the generality of the right of termination may be on any of the following grounds for which an opportunity to show cause will be afforded to him. (a) Professional incompetence or misconduct or an act of moral turpitude, (b) Unsatisfactory performance of duty. (c) Arrest or conviction by a court of law for any offence. (d) Any act prejudicial to security or interest of the Organisation (ECHS). (e) Absence of leave beyond 60 days. (f) Prolonged or habitual absence from duty prior permission of the competent authority including prolonged absence due to medical illness. (g) Inadequate work load. (h) Breach/violation of any provision of this agreement by the Engaged Persons. (j) Any other ground warranting his removal from the contractual agreement. (e) Absence of leave beyond 60 days. (f) Prolonged or habitual absence from duty prior permission of the competent authority including prolonged absence due to medical illness. (g) Inadequate work load. (h) Breach/violation of any provision of this agreement by the Engaged Persons. (j) Any other ground warranting his removal from the contractual agreement. 7) From a perusal of the aforesaid Clause, it is clear that the respondents have a right to terminate contract of employment of the petitioner by giving one months’ notice or one months consideration in lieu thereof on any of the grounds (a) to (j), quoted above, but, of course, after giving him an opportunity to show cause. 8) As per the impugned show cause, the ground for termination of the petitioner has been mentioned as professional incompetence and misconduct with ECHS Polyclinic staff and the second ground mentioned is unsatisfactory performance of duty. The record produced by the respondents would reveal that on 27th April, 2007, an inspection of the laboratory where the petitioner was working was conducted and certain deficiencies were observed by the officer inspecting the laboratory. In the letter 27th April, 2007, addressed to the petitioner, he was asked to explain as to why disciplinary proceedings should not be taken against him. Prior to this, on 13th April, 2007, another show cause notice was issued to the petitioner and he was asked to submit his reply. The record shows that the petitioner had duly received this show cause notice. The record further shows that a number of warnings have been issued to the petitioner from time to time. These warnings pertain to the attitude of the petitioner towards his colleagues and staff as also his lack of interest in the performance of his duties. Ultimately, termination notice dated 21.05.2007 came to be issued against the petitioner which has been duly replied by him in terms of the communication addressed by him through his counsel, Shri Imtiyaz Ahmad Hakak, a copy whereof has been placed on record by the petitioner along with the writ petition. In the said reply, the petitioner has more or less admitted his lack of satisfactory performance but has blamed the other staff members for the same. It seems that this explanation of the petitioner has not been accepted by the respondents, which resulted in issuance of the impugned order of termination dated 19th June, 2007. In the said reply, the petitioner has more or less admitted his lack of satisfactory performance but has blamed the other staff members for the same. It seems that this explanation of the petitioner has not been accepted by the respondents, which resulted in issuance of the impugned order of termination dated 19th June, 2007. 9) Learned counsel for the petitioner has argued that even a contractual employee is entitled to be subjected to regular enquiry before terminating his services, particularly when the order of termination is stigmatic in nature, as is the present case. In this regard he has relied upon the judgment of this Court in the case of Faheen vs. University of Kashmir, 2004 SLJ 503. 10) As already noted, the petitioner was not working as a regular employee against a civil post but was engaged on contractual basis, initially for 11 months and thereafter vide agreements executed subsequently, his engagement on contractual basis was renewed from time to time. The conditions of employment of the petitioner were governed by the covenants of the agreement of his employment. Therefore, the safeguards available to an employee appointed against a civil post as contained in Article 311 of the Constitution of India, are not available to the petitioner. 11) As already noted, the terms and conditions of engagement of the petitioner are governed by the contract of service executed by respondents in his favour and as per Clause (11) quoted above, it was open to the respondents to terminate his services on any of the grounds contained therein after issuing a show cause notice to him. The respondents have, before terminating the services of the petitioner, given a show cause notice to him which he has duly replied by him and after considering his reply, the impugned order of termination has been issued. In fact, the record produced by the respondents reveals that the petitioner has been warned on numerous occasions and asked to improve his behaviour and attitude towards fellow staff members, which according to the respondents he failed to do. Therefore, the respondents were well within their power to terminate the services of the petitioner. 12) So far as judgment relied upon by learned counsel for the petitioner is concerned, the same relates to an ad hoc employee and not to a contractual employee. Therefore, the respondents were well within their power to terminate the services of the petitioner. 12) So far as judgment relied upon by learned counsel for the petitioner is concerned, the same relates to an ad hoc employee and not to a contractual employee. As already noted, the terms and conditions of service of a contractual employee are governed by the terms of the contract, which is not the case with an ad hoc or a temporary employee. The Supreme Court in the case of Union Public Service Commission v. Girish Jayanti Lal Vaghela, (2006) 2 SCC 482 , has held that a person appointed on contractual basis does not enjoy the protection of Article 311(2) for the simple reason that he is not member of a civil service of the Union or an All India Service or a civil service of a State or holds a civil post under the Union or a State. A Division Bench of Delhi High Court, in the case of Ravinder Kaushik vs. Union of India and anr. (WP(C) No.12186/2016 decided on 13.02.2018) has, in a case where the services of a driver, who had been engaged on contractual basis, were terminated, upheld the order of his termination in somewhat similar circumstances. 13) For what has been discussed hereinbefore, it is clear that termination of the petitioner from his services has been effected in accordance with the conditions of his contract of employment after following the principles of natural justice and after considering his reply to show cause notice. The contention of learned counsel appearing for the petitioner that the petitioner was entitled to a full-fledged regular enquiry with a right to participate in the said enquiry, is misconceived having regard to the nature of engagement of the petitioner. The 14) The record be returned to learned counsel for the respondents.