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2024 DIGILAW 477 (CHH)

Mrigendra Jyoti Sonwani v. State of Chhattisgarh

2024-06-28

ARVIND KUMAR VERMA

body2024
ORDER : Invoking jurisdiction of this Court under Article 226 of the Constitution of India and impugning legality, validity and correctness of the order dated 01.05.2019 issued by the respondent No.3-Managing Director, whereby the petitioner has sought for the following reliefs: “10.1 It is prayed that this Hon’ble Court may kindly be pleased to issue appropriate writ order or direction for quashing of the termination order (if any) passed against the petitioner. 10.2 That, this Hon’ble Court may kindly direct the respondent No.3 Managing Director CGMSC Ltd. To regularize the services of the petitioner on the post of “Executive Engineer. 10.3 Any other relief/reliefs, which this Hon’ble Court deems fit and proper may also kindly be granted to the petitioner, in the interest of justice. 10.4 That, this Hon’ble Court may kindly be pleased to issue writ, order or direction for quashing of the termination order dated 01.05.2019 (Annexure P/18) passed by the respondent. 2. Facts of the case in brief, are that the respondent had issued an advertisement (Annexure P/4) for appointment of Executive Engineer and as per the terms and conditions in Clause 3 & 4 of the advertisement, the appointment would be made under the Chhattisgarh Civil Services (Contractual Recruitment) Rules 2012 for a period of 3 years and after completion of 5 years of service, after evaluation, their services would be regularized. Accordingly, the petitioner was duly appointed on 01.10.2013 on the post of Executive Engineer for a period of three years on contract basis. Thereafter the services of the petitioner was extended from time to time and on satisfactory performance, the service of the petitioner was extended vide order dated 20.09.2018 (Annexure P/7) by the respondent. He submits that the respondent arbitrarily did not regularize the service of the petitioner despite of the communication by the department itself (Annexure P/8 and P/9). The petitioner therefore, made a representation vide Annexure P/10. However, vide order dated 18.02.2019, the service of the petitioner was transferred from the office of CGMSC Ltd. Construction, Division Bastar to CGMSC Ltd. Construction-Division Raipur and he was also directed to take additional charge of Executive Engineer CGMSC Ltd. Construction-Division Bastar. The petitioner therefore, made a representation vide Annexure P/10. However, vide order dated 18.02.2019, the service of the petitioner was transferred from the office of CGMSC Ltd. Construction, Division Bastar to CGMSC Ltd. Construction-Division Raipur and he was also directed to take additional charge of Executive Engineer CGMSC Ltd. Construction-Division Bastar. Thereafter within a period of 4-5 days of joining at Raipur, on a complaint made by M/s. Shankara Enterprises, Office at Darri Para Road, Kawardha, District Kabirdham before the Health Minister, State of CG vide Annexure P/13, he has been terminated from service. 3. Learned Senior counsel for the petitioner has challenged the order of termination dated 01.05.2019 (Annexure P/19) whereby the petitioner has been terminated from the service by giving one month salary, with immediate effect. It appears that because of certain allegations, he was discontinued from service. It is submitted that the service of the petitioner has been terminated without issuance of a show cause notice, without affording opportunity of hearing and without holding a departmental enquiry under the law. He submits that if any complaint is made against the petitioner the same is subject of enquiry and in the present case, no such enquiry has been conducted by the respondents. Note sheets of the department dated 01.05.2019 (Annexure P/19) categorically shows that charges were levelled against the petitioner. The respondent failed to give any heed to the petitioner’s reply submitted on the complaint made by M/s. Shankara Enterprises. 4. The grievance of the petitioner is that the petitioner was appointed on contractual basis vide order dated 1.10.2013 (Annexure P/6) and that the petitioner has a right for claiming regularization therefore his claim may be considered. He submits that the claim of the petitioner is based upon clause 3 of the advertisement which envisages that on completion of 5 years of contractual service, if the services are found to be satisfactory, the Corporation may consider the service of the petition for regularization. It is contended that the petitioner has completed 5 years of satisfactory service on contractual basis and in the light of the said advertisement, he ought to have been regularized. He further contends that as per the terms and conditions of the advertisement as well as the appointment order of the petitioner, his services are governed by the Chhattisgarh Civil Services (Contractual appointment) rules, 2012, wherein Rule 15 (1) provides as under: 15. He further contends that as per the terms and conditions of the advertisement as well as the appointment order of the petitioner, his services are governed by the Chhattisgarh Civil Services (Contractual appointment) rules, 2012, wherein Rule 15 (1) provides as under: 15. Other conditions - (1) Persons appointed on contract shall be governed by the Chhattisgarh Civil Service (Conduct) Rules, 1965. Rule 22-A of the Rules 1965 provides as under: 22-A. General concept of misconduct- Without prejudice to the generality of the concept of misconduct, any at or omission in breach of the directions or prohibition enacted in these rules shall amount to misconduct punishable under the MP/CG Civil Services (Classification, Control and Appeal) Rules, 1966. 5. It is submitted by the learned Senior counsel for the petitioner that the petitioner has been terminated without following the aforesaid rules and without holding any enquiry, therefore the impugned order is bad in the eye of law. He has further placed his reliance upon the judgment of the Hon’ble Supreme Court in the matter of Delhi Transport Corporation Vs. DTC Mazdoor Congress and Others, AIR 1991 SC 101 wherein it has been held as under: “200. It will be profitable to refer in this connection the observations of this Court in the case of Union of India Vs. Tulsiram Patel, 1985 Supp (2) SCR 131: ( AIR 1985 SC 1416 ) where the constitutionality of provisions of Art. 311 particularly the 2nd proviso to clause (2) of the said Article came up for consideration. This Court referred to the findings in Roshan Lal Tandon Vs. Union of India (1968)1 SCR 185 :(AIR 1967 ?SC1889) wherein it was held that though the origin of a Government service is contractual yet when once appointed to his post o office, the Government servant acquires a status and his rights and obligations are no longer determined by the consent of both the parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. It has been observed that Article 14 does not govern or control Art. 311. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. It has been observed that Article 14 does not govern or control Art. 311. The Constitution must be read as a whole. Article 311 (2) embodies the principles of natural justice including audi alteram partem rule. Once the application of clause (2) is expressly excluded by the Constitution itself, there can be no question of making applicable what has been so excluded by seeking recourse to Article 14 of the Constitution.” 6. Similarly, in the matter of O.P.Gupta Vs. Union of India & Others reported in (1987) 4 SCC 328 , it has been held by the Hon’ble Supreme Court as under: 16. It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. Both the Privy Council as well as this Court have in a series of cases required strict adherence to the rule so natural justice where a public authority or body has to deal with rights. Thee has ever since the judgment of Lord Reid in Ridge Vs. Baldwin LR 1964 AC 40, been considerable fluctuation of judicial opinion in England as to the degree of strictness with which the rule so natural justice should be extended and there is growing awareness of the problems created by the extended application of principles of natural justice, or the duty to act fairly which tends to sacrifice the administrative efficiency and dispatch, or frustrates the object of the law in question. Since this Court has held that Lord Reid’s judgment in Ridge Vs. Baldwin should be of assistance in deciding questions relating to natural justice, there is always ‘the duty to act judicially’ whenever the rules of natural justice are applicable. There is therefore the insistence upon the requirement of a ‘fair hearing’. In the light of these settled principles, we have no doubt whatever that the government acted in flagrant breach of the rules of natural justice or fair play in passing the impugned order. We do not see way the principles enunciated by the Court in M.Gopala Krishna Naidu Vs. In the light of these settled principles, we have no doubt whatever that the government acted in flagrant breach of the rules of natural justice or fair play in passing the impugned order. We do not see way the principles enunciated by the Court in M.Gopala Krishna Naidu Vs. State of Madhya Pradesh (1968) 1 SCR 355 : AIR 1968 SC 240 :(1968) 2 Lab LJ 125:1968 Lab IC 216, should not apply with equal vigour to a case like the present. There is no reason why the power of the government to direct the stoppage of increments at the efficiency of bar on the ground of unfitness or otherwise after his retirement which prejudicially affects him should not be subject to the same limitation as engrafted by this Court in M.Gopala Krishna Naidu while dealing with the power of the government in making a prejudicial order under FR 54 namely, the duty to hear the government servant concerned after giving him full opportunity to make out his case.” 7. He has further relied upon in the matter of Babulal Vs. State of Haryana and Others reported in (1991) 2 SCC 335 , wherein the Hon’ble Supreme Court has held as under: “8. Moreover, from the sequences of the facts of this case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequences. It is well settled by several decisions of this court that thought he order is innocuous on the face of it still then the court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and it it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. Reference may be made in this connection to the decision of this Court in Rajinder Kaur Vs. State of Punjab (1986) 4 SCC 141 :1986 SCC (L & S) 745 in which one of us is a party. Reference may be made in this connection to the decision of this Court in Rajinder Kaur Vs. State of Punjab (1986) 4 SCC 141 :1986 SCC (L & S) 745 in which one of us is a party. It has been held that : (SCC HN) “The impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police Rules, 1934, was really made on the basis of the misconduct as found on enquiry into the allegation behind her back. Though couched in innocuous terms, the order was merely a camouflage for an order of dismissal from service on the ground of misconduct. This order had been made without serving the appellant any charge-sheet without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the witnesses examined. The order was thus, made in total contravention of the provisions of Article 311 (2) and was therefore, liable to be quashed and set aside. 8. Learned counsel for the respondents submits that the petitioner has challenged the impugned order on the ground that he has been abruptly discontinued from his employment without issuing any Show Cause Notice. It is further contended by the counsel for the respondent that the petitioner was appointed on contractual basis by conducting walk-in-interview for contractual appointment on the post of Executive Engineer held on 20.09.2013 by advertisement (Annexure P4) and was appointed vide order dated 1.10.2013 purely on contractual basis and in terms of the said appointment order, clause No.16 specifically mentions that the service of employee on contractual basis can be terminated by giving one month notice or one month salary without assigning any reason. He submits that the petitioner was appointed on 01.10.2013 under the provisions of Chhattisgarh Civil Services (Samvida Niyukti) Niyam, 2012 (hereinafter referred as Niyam-2012) wherein in clause 16 of the appointment order, it has been specifically mentioned that the service of contractual employee can be terminated on the basis of one month notice or one month salary which was on the basis of Sub-rule 5 Rule 11 of the Niyam-2012, which is as under: “11(5) Either of both the parties may terminate the contract appointment during the period of contract appointment by giving one month notice in advance or paying one month’s salary in its place.” 9. It is relevant to mention that the appointment order has been done under the provisions of Chhattisgarh Civil Services (Samvida Niyukti) Niyam 2012 (hereinafter referred as Niyam 2012). He submits that when there is specific provision under the statute, whereby the contractual employees are governed, the appointment has been made under Niyam 2012 and the provision of Civil Service (Classification, Control and Appeal) Rules, 1966 and Chhattisgarh Medical Service Corporation Limited, Raipur (CG) and Service Recruitment and Promotion Rules, 2017 would not be applicable. 10. Learned counsel for the respondents submits that the service of the petitioner is purely contractual and governed by the terms of the appointment order dated 1.10.2013 and Niyam 2012 and looking to the future career of the petitioner, instead of taking any coercive action, the respondent has terminated him from service on simplicitor basis so that his future prospects will not be affected by the impugned order. He submits that as per the terms of the appointment order, the answering respondent is not required to issue any show cause notice and even otherwise, the order of termination is simplicitor without any allegation against the petitioner and therefore the action of the respondent/authorities is in accordance with law as per the terms and conditions of the appointment order. 11. He further submits that the judgment referred by the petitioner in relation to the Delhi Transport Corporation (supra), referred by the petitioner is in relation to the permanent employee and the present is a case where the petitioner is a contract employee therefore, the said judgment would not be applicable. So far as the matter of O.P.Gupta (supra), the matter relates to the contractual simplicitor and factual aspect of the case cited is entirely different from the present case. So far as the matter of O.P.Gupta (supra), the matter relates to the contractual simplicitor and factual aspect of the case cited is entirely different from the present case. In another judgment cited by the petition in relation to Babu Lal (supra), the petitioner was terminated straightaway without reinstating him in the service after he was acquittal in criminal case. It was mentioned that the appellant was suspended on the ground of criminal proceeding against him and in the present case, order is termination simplicitor without assigning any reason of criminal charges. He has placed his reliance in the matter of Hukam Chand Khundia Vs. Chandigarh Administration and Another, 1995 SCC (6) 534, wherein the Hon’ble Supreme Court has held as under: “Since the petitioner was holding a temporary service and was on probation, an order of termination simplicitor has been passed without attaching any stigma against him. As the service records were found satisfactory, the termination order cannot be held arbitrary and deprecious. In the aforesaid facts, we do not think that in reality an order of punishment has been passed against the petitioner in the clocks or pretence of termination simplicitor without holding any departmental proceeding thereby violating, Article 311 of the Constitution. We therefore, find no merit in this petition and the same is dismissed.” 12. In the present petition, in the termination order, it is no where mentioned that the petitioner has been discontinued from service on account of any complaint. The answering respondent has only mentioned that as the service of the petitioner is only contractual and governed by the order dated 1.10.2013, looking to his future career, inspire of taking any coercive action, the respondent opted from termination of service on simplicitor basis without mentioning any reason for his termination. 13. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 14. The respondent had issued advertisement (Annexure P/4) for appointment of Executive Engineer and as per the following terms and conditions in clause 3 & 4, the appointment would be made under the CG Civil Services (Contract Appointment) rules, 2012. 13. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 14. The respondent had issued advertisement (Annexure P/4) for appointment of Executive Engineer and as per the following terms and conditions in clause 3 & 4, the appointment would be made under the CG Civil Services (Contract Appointment) rules, 2012. 1- in dzekad 1 ,DthD;wVho bUthfu;j ,oa in dz-2 & vflLVasV bathfu;j dks Hkh okWd&bu&baVjOw gsrq fnukad 20-09-2013 dks vkeaf=r fd;k tkrk gSA lsokfuo`Rr vfHk;arkvksa dks N-x- flfoy lsok ¼lafonk HkrhZ½ 2012 fu;eksa ds varxZr lafonk vk/kkj ij ns; osru ,oa dsUnz@jkT; 'kklu }kjk ns; isa'ku dh dqy jkf'k dk ;ksx lsokfuo`fRr ds Bhd igys izkIr gks jgs osru ls vf/kd u gksus dh 'krZ ij fu;qfDr nh tkosxhA &&&&& &&&& &&&& 3- izFker% fu;qfDr NRrhlxढ flfoy lsok lafonk HkrhZ½ 2012 fu;eksa ds lanHkZ esa lafonk vk/kkj ij rhu o"kksZa dh vof/k gsrq dh tkosxh rFkk dk;Z larks"ktud ik, tkus ij lafonk vof/k 2 o"kZ cढkbZ tk ldrh gSA 4- lsokfuo`Rr mEehnokjksa dks NksMdj vU; mEehnokjksa dks 5 o"kZ dh lafonk lsok i'pkr~ dk;Z ds ewY;kadu ds vk/kkj ij fuxe dh lsok esa fu;fefrdj.k fd;k tk ldsxkAß 15. The petitioner after duly applying for the post of Executive Engineer, appeared in the walk-in-interview and was appointed on the post of Executive Engineer for a period of three years on contract basis vide order dated 1.10.2013, as per the following terms and conditions: ^^1- bUgsa fuxe ds i{k esa ;g vuqca/k fy[kdj nsuk gksxk fd ;g fuxe dh lsok esa de ls de 03 o"kZ rd cus jgsaxsA bl chp bUgsa vU; lsok essa vkosnu gsrq vukifRr izek.k i=@vuqHko izek.k i= tkjh ugha fd;k tk;sxkA 2- izFker% fu;qfDr N-x- flfoy lsok ¼lafonk HkrhZ½ 2012 fu;eksa ds varxZr lafonk vk/kkj ij rhu o"kksaZ dh vof/k gsrq dh tkosxh rFkk dk;Z larks"ktud ik;s tkus ij lafonk dh vof/k cढ+kbZ tk ldrh gSA 3- fdlh Hkh le; ;fn LosPNk ls lsok NksMuk pkgrs gS rks 01 ekg dh vfxze osru tek djuk gksxk ;k 01 ekg iwoZ lwpuk nsuk vfuok;Z gksxkA 4- mifLFkfr ds lkFk #- 100 ds uke T;wfM+f'k;y LVkEi isij ij vuqca/k fu"ikfnr dj dk;kZy; esa nsuk vfuok;Z gksxkA &&&& &&&& &&&& 10- budh lsok;sa mu lHkh fu;eksa ,oa 'krksZ ds v/khu gksxh] tks buds fy;s le; le; ij fuxe }kjk izHkko'khy dh tkosxhA &&&& &&&& &&&&& 16- budh lsok;sa fuxe }kjk ,d ekg dk uksfVl vFkok ,d ekg dk vfxze osru nsdj] fcuk dkj.k crk;s fdlh Hkh le; lekIr dh tk ldsxhA fu/kkZfjr ifjoh{kk vof/k esa dk;Z okafNr Lrj dk u ik;s tkus ij] mUgsa lsok ls i`Fkd ¼fMLpktZ½ dj fn;k tkosxkAÞ 16. The very term contractual itself means that there is a contract of employment between the petitioner and the respondents and that contract exists for a specific period. Beyond the terms of contract, there is no right whatsoever which accrued in favour of the contractual employee. It is also by now settled that even the ground of legitimate expectation is not flowing in favour of contractual employee howsoever be the length of service that must have been as a contractual employee. For determining as to whether the contract of the petitioner has to be extended or considered for regularization, the respondents still have the powers within its domain not to extend the contract in case if the respondent finds the work of the petitioner or the contractual employee so appointed, to be unsatisfactory or unsuitable. For determining as to whether the contract of the petitioner has to be extended or considered for regularization, the respondents still have the powers within its domain not to extend the contract in case if the respondent finds the work of the petitioner or the contractual employee so appointed, to be unsatisfactory or unsuitable. In the terms and conditions of the appointment order, in clause 16 it is clearly mentioned that the services can be terminated by the Corporation by giving one month notice or one month advance salary even without giving any reason and on that basis the petitioner has been terminated by the answering respondent vide order dated 01.05.2019. 17. In the matter of Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, 2006 AIR SCW 3601 the Supreme Court has observed as under :- “While exercising the power of judicial review of administrative “ action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.” 18. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.” 18. So far as the contractual employment is concerned, Hon’ble Supreme Court in the case of State of Maharashtra and Others Vs Anita and Anr. (2016) 8 SCC 293 , has held as under: “14. It is relevant to note that the respondents” at the time of appointment have accepted an agreement in accordance with Appendix ‘B” attached to the Government Resolution dated 15,.09.2006. the terms of the agreement specifically lay down that the appointment is purely contractual and that the respondents will not be entitled to claim any rights, interest and benefits whatsoever of the permanent service in the Government.” 19. In view of the above factual matrix of the case, this Court is of the opinion that no strong case has been made out by the learned Sr. counsel for the petitioner calling interference with the impugned order. Since it was only non-renewal of the contractual employment of the petitioner and it was the prerogative of the employer whether to extend the contractual appointment or to consider his service for regularization. It is pertinent to mention here that in the termination order dated 1.05.2019 (Annexure P/18) there is no such reference to any document referred which may be called for by future employer rather the order of termination of petitioner on simplicitor basis without reflecting anything in the termination order and the respondent had only terminated the service by giving one month salary in terms of the appointment order and Niyam-2012, Rule 11 (5). Upon the expiry of the contract, the reliance on the resolution is of no relevance. It is not even the case that the petitioner has been terminated in a midway but the only thing was that his contractual service has not been extended for the next term. 20. The petition has no merits and is therefore dismissed.