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SCA/9552/2006 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9552 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRAKASH
MOHANLAL SUTARIYA - Petitioner(s)
Versus
SECRETARY
TO GOVT.OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
PH PATHAK for
Petitioner(s) : 1,
MR JK SHAH AGP for Respondent(s) : 1 -
3.
NOTICE SERVED BY DS for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/04/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed to quash and set aside the order passed by
respondent no.2 dated 18.05.2005 by which his services were
terminated and the letter dated 20.05.2005 issued by respondent no.3
by which the petitioner was communicated about the passing of the
order dated 18.05.2005 by respondent no.2.
2. The
facts in brief are that the petitioner was appointed as a Medical
Officer Class-II, on ad-hoc basis, vide appointment order dated
13.07.1999, issued by the Office of respondent no.2. Vide letter
dated 25.04.2005 issued by respondent no.3, an explanation was sought
from the petitioner as to why he petitioner had not remained present
in the official meeting called by respondent no.1 on 22.04.2005. The
petitioner submitted his explanation to the same vide letter dated
28.04.2005.
3. Being
dissatisfied with the same, respondent no.2 passed the impugned order
dated 18.05.2005 by which the services of the petitioner were
terminated. The petitioner was communicated about the passing of the
said order by respondent no.3 vide its letter dated 20.05.2005.
Hence, this petition.
4.0 Mr.
P.H. Pathak, learned counsel for the petitioner, has submitted that
the petitioner has been ill-treated by the respondents for raising
his voice against the illegalities committed by them. He has
submitted that the petitioner did not attend the meeting held on
22.04.2005 since he was never communicated about the same by the
concerned authority. Even otherwise, merely on the ground that the
petitioner had not attended a particular meeting, it could not be a
ground to conclude that his services were unsatisfactory. Therefore,
the order of termination passed by the respondents is bad in law and
deserves to be quashed and set aside.
4.1 Learned
counsel for the petitioners has submitted that before discontinuing
the services of the petitioner on the ground of unsatisfactory work,
inquiry proceedings ought to have been initiated against him. No
notice or charge-sheet was served upon the petitioner and hence, the
impugned action is stigmatic.
4.2 Learned
counsel for the petitioner has further submitted that the impugned
order of termination is bad in law also in view of the fact that it
is an unreasoned order. No proper procedure established by law was
followed by the respondents before taking the impugned action. Hence,
the impugned action of the respondents is arbitrary and bad in law
and deserves to be quashed and set aside.
4.3 Learned
counsel for the petitioner has relied upon a decision of the Apex
Court in the case of Babu Lal v. The State of Haryana &
Ors., A.I.R. 1991 S.C. 1310, wherein, it has been held that
even if the order is couched as order of termination in accordance
with the terms and conditions of the order of appointment, 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 if it is found
that the order is penal in nature, even though it is couched with the
order of termination in accordance with the terms and conditions of
the appointment, the order can be set aside.
4.4 Learned
counsel has also relied upon another decision of the Apex Court in
the case of Rudrakumar Sain v. Union of India, 2000(8) S.C.C.
29, wherein, it has been held that in service jurisprudence,
a person who possesses the requisite qualification for being
appointed to a particular post and then is appointed with the
approval and consultation of appropriate authority and continued in
the post for a fairly long period, then such an appointment cannot be
held to be stop-gap or fotious or purely ad-hoc appointment .
4.5 Learned
counsel for the petitioner has, therefore, submitted that the
impugned action of the respondents is arbitrary and violative of the
relevant provisions of the Constitution of India and deserves to be
quashed and set aside in view of the principle laid down by the Apex
Court in the aforesaid decisions.
5.0 Mr.
J.K. Shah, learned AGP, has submitted that the petitioner was
appointed purely on ad-hoc and temporary basis. His services were
liable to be terminated, at any moment, without assigning any
reasons, as is clear from his original order of appointment dated
13.07.1999. The services of the petitioner were brought to an end as
he was not regular and his work was found to unsatisfactory.
Therefore, the authorities below were completely justified in
terminating the services of the petitioner.
5.1 Learned
AGP has relied upon the decision of the Apex Court in the case of
U.P. State Cement Corporation Ltd. & Ors. v. B. K. Tiwari,
(1998) 2 S.C.C. 542, wherein, it has been held that when an
employee accepts the terms and conditions contained in the offer of
appointment, he could not claim better terms than what has been given
in the offer of appointment.
5.2 Learned
AGP has relied upon another decision of the Apex Court in the case of
Ashok Kumar Sonkar v. Union of India & Ors., (2007) 4
S.C.C. 54, wherein, it has been held that the principles of
natural justice may not be applicable in a given case unless a
prejudice is shown and that the application of the said principles is
not necessary, where it would be a futile exercise. In that case, the
selection of the appellant-employee was illegal as he was ineligible
to be considered for appointment and therefore, the cancellation of
his appointment, without affording any opportunity of hearing to him
by the authority concerned, was held to be proper.
5.3 Learned
AGP has next relied upon another decision of the Apex Court in the
case of State of Uttar Pradesh & Anr. v. Ram Adhar, (2008)
12 S.C.C. 136, wherein, it has been held that there is no
principle of law that a person appointed in a temporary capacity has
a right to continue till a regular selection and rather the legal
position is just the reverse, that is, that a temporary employee has
no right to the post and that he has no right to continue even for a
day as of right, far from having a right to continue till a regular
appointment is made.
5.4 Learned
AGP has lastly relied upon another decision of the Apex Court in the
case of State of West Bengal & Ors. v. Banibrata Ghosh &
Ors., (2009) 3 S.C.C. 250, wherein also similar principle has
been laid down, i.e. an ad-hoc appointee does not have any right to
be regularized.
5.5 Learned
AGP has, therefore, submitted that the respondent-authorities were
completely justified in terminating the services of the petitioner
and this Court may not exercise its discretionary powers in favour of
the petitioner.
6. Heard
learned counsel for the respective parties and perused the documents
on record. The petitioner was appointed on the post in question vide
appointment order dated 13.07.1999. In service jurisprudence, it is a
settled law that the services of an employee shall be governed by the
terms and conditions provided in his offer of appointment. Such
appointment may be permanent or temporary or on ad-hoc basis for a
limited period. Every appointment made, in pursuance of such offer of
appointment, shall be governed by the terms and conditions, as
provided therein.
7. A
plain reading of the appointment order dated 13.07.1999 of the
petitioner shows that the appointment of the petitioner was on purely
ad-hoc basis and that his services are likely to be terminated, at
any moment, without issuing any Notice. In other words, the
employment of the petitioner was temporary and was liable to be
terminated, at any time, without even issuing a Notice. In the order
of appointment, it has been categorically stated that his appointment
as an ad-hoc Medical Officer Class-II, in the pay-scale of
Rs.8000-275-13500, shall be for a period of one year, on the terms
and conditions provided therein and also that his services are liable
to be terminated, at any time, without issuing any Notice. Therefore,
evidently, the petitioner was never appointed on a regular post, on
permanent basis, after following due selection procedure. He was
appointed on a purely temporary basis for a limited period.
Therefore, he has no right to hold the post in question.
8. Keeping
the aforesaid facts in mind, it is required to be noted that the
services of the petitioner were brought to an end on the ground that
his work was found to be ‘unsatisfactory’. It appears from the
record that the petitioner was not performing his duties diligently
inasmuch as he used to leave the Head Quarters, without prior
permission of the competent authority and was also not punctual in
attending the Hospital. The cause of action arose when a Meeting was
called by respondent no.1 on 22.04.2005 and the petitioner did not
attend the same. The main defence of the petitioner for not attending
the said Meeting is that he was not intimated about the same by the
concerned authority and that the day on which the Meeting was held,
it was a public holiday. However, the said story does not inspire any
confidence since the petitioner was found to be leaving the Head
Quarters regularly without prior permission and that he was not
attending the Hospital punctually. For the aforesaid reasons, his
work was found to be unsatisfactory.
9. Whenever,
the competent authority is satisfied that the work and conduct of a
temporary employee is not satisfactory or that his continuance in
service is not in public interest on account of his unsuitability,
misconduct or inefficiency, it may either terminate his services in
accordance with the terms and conditions of the service or the
relevant rules or it may decide to take punitive action against such
temporary employee. In the present case, for reasons stated herein
above, the work of the petitioner was found to be unsatisfactory and
therefore, his services were brought to an end.
10. The
termination order was also assailed on the ground that in substance
it was an order of punishment and also stigmatic. In my view, the
said contention raised by the learned counsel for the petitioner is
without any basis inasmuch as under the terms of the order of
appointment, no inquiry or notice was necessary. A regular
departmental inquiry initiated against a permanent employee can not
be equated with any inquiry held against a temporary Government
employee. In a regular departmental inquiry, the main idea is to
ascertain as to what punishment should be imposed. But, the same is
not the case in respect of a temporary Government employee since the
main idea in such case is to decide whether such employee deserves to
be continued in service or not. Thus, the criteria for the said two
categories of employees are totally different.
11. In
my opinion, the order of termination of services of a temporary
Government servant, which in form and substance, is no more than his
discharge effected under the terms of contract or the relevant rule,
cannot in law, be regarded as his dismissal because the appointing
authority was actuated by the motive that the said servant did not
deserve to be continued in service for some alleged inefficiency or
misconduct. Therefore, it is erroneous to hold that where no inquiry
is held before issuance of the order of termination, then such order
is punitive in nature. In the case on hand, the services of the
petitioner was found to be unsatisfactory and therefore, under the
terms of the contract of appointment, which categorically provided
that the services was purely on ad-hoc basis for a limited period and
could be terminated, at any time, without issuing any Notice, the
respondent-authority passed the impugned order of termination. Hence,
under no circumstances, it could be said that the order is punitive
or stigmatic.
12. In
Babu Lal’s case (supra), relied upon by the learned counsel for the
petitioner, the ad-hoc employee was placed under suspension on the
sole ground that criminal proceeding was pending against him. His
services were terminated during the pendency of suspension and also
during the pendency of criminal proceeding. Subsequently, he was
acquitted from the criminal proceeding. He was not considered for
regularization even though he had fulfilled all the requisite terms
of the executive instructions providing for regularization of such
employee. On the facts of the case, the Apex Court held the order of
termination to be illegal. The principle laid down in the said
decision will not apply to the case on hand inasmuch as, in that
case, the ad-hoc employee was found to be eligible in all respects
for regularization of his services, whereas, in the present case, the
services of the petitioner were found to be unsatisfactory rather
than even being eligible. Moreover, the order of termination is also
found to be couched as an order of termination in accordance with the
terms and conditions of offer of appointment. Therefore, the said
decision will not be of any help to the petitioner.
13. In
view of the above discussion, I am of the opinion that the
respondent-authority has not committed any error while issuing the
impugned order of termination. The action of the respondents is just
and with due authority of law. Hence, I find no reasons to interfere
in this petition under Article 226 of the Constitution of India.
14. For
the foregoing reasons, the petition is dismissed. Rule is discharged.
Interim relief, if any, stands vacated.
[K.S.JHAVERI,
J.]
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