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2024 DIGILAW 1599 (GUJ)

Yashvanat Balaji Meshram v. Union of India

2024-07-22

A.Y.KOGJE, SAMIR J.DAVE

body2024
ORDER : A.Y. Kogje, J. 1. This petition under Articles 226 and 227 of the Constitution of India is filed against the order dated 10.11.2023 by the Central Administrative Tribunal in Original Application No.433 of 2020. By the impugned order, the Tribunal has rejected the application of the petitioner challenging the order of the respondent- department dated 03.11.2020. By the order dated 03.11.2020, the respondent- department had terminated the services of the petitioner from the post of driver cum lab attendant. 2. Learned advocate for the petitioner has submitted that the petitioner originally appointed to the post of driver in the year 2003 with the then existing National Institute of Miners’ Health (hereinafter referred to as ‘NIMH’ for short) on contractual basis pursuant to the advertisement issued for the post of driver cum lab attendant. The petitioner having succeeded in the process was given an appointment order dated 27.02.2015 to the post of driver cum lab attendant. 3. Learned advocate for the petitioner submitted that NIMH was required to undertake a process as per the Recruitment and Merit Assessment Rules, 2004. The exercise of merit assessment/ contract review by the committee and upon such exercise being undertaken and if the petitioner falls within the bracket of assessment for appointment would be taken up as regular employee or upon failing in the merit assessment his services could have been terminated. However, the respondent- department without complying with the requirement of the Rules, particularly, Rule Nos.6.3.2 and 6.3.3 have proceeded to terminate the services of the petitioner. It is submitted that it was the duty of the department to undertake this exercise and having failed in doing so, the petitioner’s services ought not to have been terminated. Learned advocate has thereafter submitted that there was merger of NIMH with National Institute of Occupation Health (hereinafter referred to as ‘NIOH’), both working under the umbrella of the Indian Council for Medical Research (hereinafter referred to as ‘ICMR’ for short) and as a part of merger of both the organizations, the employees of NIMH were ordered to be treated as employees of NIOH. It is submitted that at that stage also the petitioner was absorbed as an employee of NIOH and it is thereafter that the impugned order was passed by the department in terminating the services of the petitioner. 4. It is submitted that at that stage also the petitioner was absorbed as an employee of NIOH and it is thereafter that the impugned order was passed by the department in terminating the services of the petitioner. 4. Learned advocate for the petitioner has drawn the attention of this Court to the transfer order dated 23.06.2020 (Annexure-F), which is an order resulting absorption of staff of NIMH into establishment of the NIOH. The name of the applicant appears at Sr. No.14 as a driver in NIOH. The petitioner had resumed accordingly his service as driver in NIOH. The terms and conditions were also made part of the transfer order under which the petitioner was to be treated as an employee of NIOH. 5. According to the learned advocate, the requirement of merit assessment having not been carried out and the fact that the applicant was absorbed as a staff of new organization i.e. NIOH. The Tribunal has not taken into consideration the aforesaid two aspects while rejecting the application only on the ground of communication interse between the ICMR and NIOH with the service record of the applicant with regards to the entries made in the service book were not found with the record of the NIMH. According to the petitioner, this was also the responsibility of the concerned department to maintain the service record and therefore, on account of the lapse by the department, the petitioner cannot be made to pay by terminating his services. 6. Learned advocate has also submitted that as per the Rule 7.8 of the Rules, reviewing of the performance of the staff is also essential by the merit assessment/ contract review committee before taking a decision as to whether the petitioner is to be continued or as to where he is required to be terminated at the end of the contract. This exercise also the department has not undertaken. Learned advocate has therefore submitted that the impugned order of termination has resulted without there being any hearing afforded to the petitioner and against the principles of natural justice. 7. As against this, learned advocate appearing for the respondent-department has submitted that the Tribunal was justified in rejecting the application of the petitioner as the petitioner could not be treated as an employee of NIOH as the petitioner was engaged on contractual basis with the preceding organization of NIMH. 7. As against this, learned advocate appearing for the respondent-department has submitted that the Tribunal was justified in rejecting the application of the petitioner as the petitioner could not be treated as an employee of NIOH as the petitioner was engaged on contractual basis with the preceding organization of NIMH. It is submitted that the respondent department has acted on the Office Memorandum issued by the ICMR, which is the parent body for both the NIMH and NIOH. By that communication, the petitioner was absorbed however, it was the very communication on the basis of which, the department was intimated about the committee consisting of five officers, who had submitted their report on 22.09.2020 and in this the committee examined service details of 14 persons including the petitioner, who had come from NIMH. So far as the petitioner is concerned, the committee had found that the petitioner was appointed to the post of driver cum lab attendant on contract basis for the period of five years with effect from 02.03.2015 and his contract had expired on 02.03.2020, however, there was no entry made in the record of the department indicating the completion of his contract period and absorption on regular basis, which otherwise would have been found in his service book. This report was communicated to ICMR under communication dated 24.09.2020 in turn on the basis of communication dated 24.09.2020, the ICMR directed NIOH on 26.10.2020 to discontinue service of the petitioner as his contract period has expired on 02.03.2020. Therefore, according to the respondent department they have acted only in terms of service contract and as directed by the parent organization. 8. Learned advocate has thereafter submitted that the petitioner was initially engaged by NIMH, which is autonomous body under the Ministry of Mines, wherein NIOH is no more in existence and the present respondent NIOH does not fall within the Ministry of Mines, but is under a different Ministry altogether. The petitioner therefore deliberately not joined the Ministry of Mines as party respondent. 9. The petitioner therefore deliberately not joined the Ministry of Mines as party respondent. 9. Learned advocate has lastly argued that the department has acted as per the conditions which are incorporated in the appointment order and therefore as and when the contract period came to an end, the respondent department was justified in terminating the services of the petitioner as the petitioner himself has failed to place on record of the Tribunal any document, which would amount to renewal of his contract. 10. Having heard learned advocates for the parties and having perused the documents on record, the petitioner had appeared for the interview process pursuant to the advertisement no.4 of 2014 for the recruitment of driver cum lab attendant. Upon such successful completion of the recruitment process, the petitioner was declared as selected and was given an appointment to the post of driver cum lab attendant vide appointment order dated 27.02.2015. From the appointment order, it is apparent that the appointment of the petitioner was initially on contractual basis for a period of five years. 11. It appears that there was a development in the administration of NIMH and by the memorandum issued by the parent body ICMR, there was a merger of NIMH into NIOH. According to the merger policy, the employees of NIMH were declared to be employees of NIOH. During the course of arguments, the Court had called upon learned advocate for the respondent to place before the Court the note for the cabinet which provided for the merger/ amalgamation of NIMH with NIOH, Ahmedabad. Accordingly, the note was placed on record, which is dated 01.07.2019, wherein the background of merger of two autonomous organizations was specified with the justification and ultimately, it was held that the employees of NIMH would be absorbed as the employees of NIOH. In this connection, the Court may refer to the relevant paras of the Note for the Cabinet dated 01.07.2019, where justification is given for merger of NIHM with NIOH. Para No.4 of the justification reads as under : “4. Justification: NIMH is a small institute with a sanctioned strength of 20. The details of current sanctioned strength, incumbency position, vacancy position, hierarchical structure and pay scales of the posts in NIMH is annexed (Annex XVI, p.61-62). The primary focus areas of NIMH are Occupational Medicine and Occupational Hygiene. Para No.4 of the justification reads as under : “4. Justification: NIMH is a small institute with a sanctioned strength of 20. The details of current sanctioned strength, incumbency position, vacancy position, hierarchical structure and pay scales of the posts in NIMH is annexed (Annex XVI, p.61-62). The primary focus areas of NIMH are Occupational Medicine and Occupational Hygiene. However, the focus areas of NIOH include a vast array of areas related to Occupational Health which also includes, but not limited to, Occupational Medicine and Occupational Hygiene. The details of current sanctioned strength, incumbency position, vacancy position, hierarchical structure and pay scales of the posts in NIOH is annexed (Annex XVI, p.63-64). The matter was examined in the Ministry of Mines. It was observed that merger/ amalgamation of NIMH with NIOH will bring synergy to NIMH. The proposal once approved will prove beneficial to both the Institutes in terms of enhances expertise in the field of occupational health in addition to the efficient management of public money.” Thereafter, supplementary Note for the Cabinet was also placed on 23.07.2019, wherein, additional information was brought to the notice of the Cabinet. The clause relevant for the purpose of this case is Clause No.2(v), which reads as under:- “2(v). There may be physical relocation of the personnel on the rolls of NIMH and the equipment of NIMH from KGF, Karnataka (Registered Office) and JNARDDC Campus, Nagpur (Central Laboratory) to NIOH. However, post merger/ amalgamation, the personnel on the rolls of NIMH, as on the date of merger, will be at the disposal of NIOH and their exact place of deployment will be decided by NIOH.” 12. It is in regards to which is exercised that employees of NIMH were therefore be absorbed as employees of NIOH and accordingly, the transfer order dated 23.06.2020 was issued by the ICMR, wherein the petitioner was also ordered to be absorbed as driver with NIOH, which was carrying an equivalent designation to post of driver cum lab attendant in NIMH. It appears that the petitioner has thereafter resumed his service as driver with NIOH and thereafter, the impugned order terminating the services of the petitioner was passed. 13. It appears that the petitioner has thereafter resumed his service as driver with NIOH and thereafter, the impugned order terminating the services of the petitioner was passed. 13. This was is the subject matter of challenge before the Central Administrative Tribunal, which by the order dated 10.11.2023 rejected the petition on the ground that the petitioner was appointed on contractual basis for a period of five years and that there is nothing on record to indicate that the petitioner after or during the contractual period was in any manner absorbed. The Tribunal has accepted the contention raised by the respondent with regards to the service record of the petitioner and held that there was nothing on record to indicate that the petitioner was that after due process the petitioner was absorbed as permanent employee in NIMH and therefore, he could not be treated to be an employee of NIOH. 14. It is pertinent to observe that the services conditions of the petitioner were governed by the National Institute of Miners’ Health Recruitment and Merit Assessment Rules, 2004 (Revised) and therefore, as provided for in Clause Nos. 6.3.2 and 6.3.3, which provides for the constitution and composition of the contract review committee as well as constitution and composition of merit assessment committee. According to these provisions, it is incumbent upon the employer to constitute a committee of experts/ officers so as to review the performance of contractual employee for extension of contract of such candidate or for assessment of merits, so as to enable the employer to decide as to continue the candidate on contract. Thereafter, the Rules also provide for Clause 7.8, which is for the purpose of reviewing the performance of employees of NIOH and to recommend the appointing authority whether to terminate the service of such individual at the end of the tenure of the contract or to absorb in the institution on regular basis. 15. One of the contentions raised by the respondents where that this exercise was not found on record and therefore, there was no formal absorption of the petitioner as staff of NIMH and therefore only, the services of the petitioner were terminated. 15. One of the contentions raised by the respondents where that this exercise was not found on record and therefore, there was no formal absorption of the petitioner as staff of NIMH and therefore only, the services of the petitioner were terminated. According to the Court, Clause 7.8 clearly provides for contract review committee to review the performance of the Scientists/ officers/ staff on contract and recommend the appointing authority whether to terminate his or her services at the end of the tenure of the contract or to absorb in the institution on regular basis on the performance rendered since joining institution on contract. 16. That the aforesaid clause clearly provides that even when the decision is for terminating the contract of the petitioner, it was incumbent upon the respondent to undertake the exercise as provided under Clause 7.8, which in the facts of the present case would be an obligation of the employer and the petitioner will have no role to play in that. Even as on date, there is nothing on the record to indicate that the respondents have undertaken such exercise and arrived at a conclusion that the services of the petitioner were required to be terminated or absorbed in absence of such exercise not undertaken by the employer, the fault will not lay at the doorstep of the petitioner and therefore, he cannot be punished for non-compliance of the relevant clause of the Recruitment Rules. 17. The Court has thereafter taken into consideration the fact that the petitioner was already absorbed as an employee of NIOH pursuant to the merger of the two organizations and the Recruitment Rules defines Clause No.4.3.4 ’employee’ which reads as under : “4.3.4. Employee:- The employee means a person recruited including the person engaged by NIMH in a Five years contract period or absorbed under these rules. The individual(s) engaged by the work contractors/ casuals/ part time/ adhoc/ lien/ deputation and any such equivalent category as well as such as honorary, research scholar, trainees and any such category worker will not be consider as employee.” 18. The individual(s) engaged by the work contractors/ casuals/ part time/ adhoc/ lien/ deputation and any such equivalent category as well as such as honorary, research scholar, trainees and any such category worker will not be consider as employee.” 18. The definition of employee would include the individuals engaged on the work contractors, casuals, part-time, temporary, ad-hoc, lien and deputation and therefore, in the opinion of the Court, the petitioner will necessarily have to be treated as an employee falling under the definition of Clause 4.3.2 being appointed on contract period of five years and therefore, the Recruitment Rules would fully apply to the case of the present petitioner necessitating the employer to conduct merit assessment of contractual employee like the petitioner during his tenure of contract period. In of the aforesaid and particularly the contents of note for cabinet, which describes the policy of merging both the organizations for the better management and efficiency for the use of public money. The case of the petitioner deserves consideration. 19. This Court has taken into consideration the decision of the Hon’ble Apex Court in the case of Canara Bank Vs. V. K. Awasthy reported in (2005) 6 SCC 321 , wherein the Hon’ble Apex Court in its judgment at para No.8 and 16 has drawn the following observations, which reads as under : “8. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. 16. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. 16. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is ‘nemo judex in causa sua’ or ‘nemo debet esse judex in propria causa sua’ as stated in (1605) 12 Co. Rep.114 that is, ‘no man shall be a judge in his own cause’ Coke used the form ‘aliquis non debet esse judex in propria causa quia non potest esse judex at pars. (Co.Litt. 1418), that is, ‘no man ought to be a judge in his own case' because he cannot act as Judge and at the same time be a party’ The form ‘nemo potest esse simul actor et judex’, that is, ‘no one can be at once suitor and judge' is also at times used. The second rule is ‘audi alteram partem’, that is, ‘hear the other side’ At times and particularly in continental countries, the form ‘audietur at altera pars’ is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely ‘qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit’ that is, ‘he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right’ (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, ‘justice should not only be done but should manifestly be seen to be done’ Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.” 20. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.” 20. The Court has also taken into consideration the impugned order of the learned Tribunal, wherein apparently the learned Tribunal has failed to take into consideration the application of Recruitment Rules to the facts of the petitioner as he is covered under the definition of an ‘employee’ and the requirement of appointing of merit assessment committee/ contract review assessment committee as per the Recruitment Rules. It was therefore upon failure of the employer to undertake this exercise, the impugned order terminating the services of the petitioner has resulted. This aspect has been completely glossed over by the Tribunal. 21. The contention raised by the learned advocate that after the decision was taken by NIOH terminating the services of the petitioner prior thereto, there is no notice issued to the petitioner for seeking action against the petitioner for termination and therefore, the order of termination appears to be passed without following principles of natural justices. 22. It is observed that the petitioner by virtue of the interim relief granted by this Court under order dated 06.12.2023 has continued to be in employment as driver in the establishment of NIOH. The Court also observes that during the course of arguments, it has been submitted by learned advocate appearing for the respondent- department that apart from the present petitioner, there are no other employees, who are facing the same situation and one another employee who was facing the same situation is no more in service on account of the misconduct that his services have been terminated. 23. In view of the aforesaid, the Court deems it fit to interfere with order dated 10.11.2023 of the Central Administrative Tribunal passed in Original Application No.433 of 2020 and for the reasoning given in the aforesaid paragraphs, the order dated 10.11.2023 passed by the Central Administrative Tribunal in Original Application No.433 of 2020 is required to be quashed and set aside. Accordingly, present petition stands allowed. The order dated 10.11.2023 passed by the Central Administrative Tribunal in Original Application No.433 of 2020 is hereby quashed and set aside.