Rakesh Kumar vs The State of Jharkhand and Others

Aparesh Kumar Singh, J.—Heard counsel for the parties.

Petitioner''s contractual engagement as Assistant in the Child Development Project Office, Deori has been terminated by the impugned order dated 27.08.2013 bearing memo No. 1294 (Annexure-5) issued by the Deputy Commissioner, Giridih, on the grounds that his service was not satisfactory and there are allegations of misappropriation of Government money, for which FIR being Deori P.S. Case No. 107/2013 dated 30.07.2013 has also been lodged under the relevant provisions of Indian Penal Code (Annexure-A to the counter affidavit).

Petitioner admittedly was engaged on contractual basis vide Annexure-1 appointment letter dated 11.01.2008 which apart from other conditions stipulates that in case of unsatisfactory service, by giving one month''s prior notice, his services can be terminated. The impugned order records that the petitioner was issued a notice on 25.07.2013 on the charges relating to misappropriation of Government money relating to Poshahar Scheme. There were other charges also which are enumerated in the impugned order. Petitioner failed to submit his reply within one week''s time. After institution of the FIR for the said allegations, he was also sent to jail. After being released from jail, though he reported in the office of the District Social Welfare Officer, Giridih, but again failed to submit his explanation. In such circumstances, under the relevant conditions of the contractual engagement and his services being found unsatisfactory and on charges of misappropriation of Government money, his contractual engagement has been terminated by the impugned order passed on 27.08.2013 after issuance of one month notice. The same is being assailed by the petitioner on the ground that no copy of the enquiry report of the District Social Welfare Officer was served to the petitioner, nor any show-cause was asked and the charges of misappropriation are false and frivolous.

This has been denied by the respondents by making categorical statements that the petitioner was asked to furnish his reply to the show-cause in respect of the same charges and he failed to file his reply within the time and even thereafter. Since the charges against the petitioner are of serious nature which renders his services unsatisfactory, respondents are justified in terminating his contractual engagement as per the terms and conditions of the appointment letter.

Learned Senior counsel for the petitioner has submitted that the petitioner had duly replied to the show-cause notice dated 25.07.2013 issued upon the petitioner vide Annexure-6 dated 10.09.2013.

It however appears from the reading of the impugned order itself that show-cause notice dated 25.07.2013 bearing letter No. 1130 was to be replied within one week time and the petitioner had failed to furnish the reply to the same within that time. The impugned order also records that even after being released from custody in connection with Deori P.S. Case No. 107/2013, the petitioner did not offer any explanation in respect of the show-cause containing the charges against him. It therefore appears that annexure-6 was not a reply to the show-cause but a representation made perhaps after impugned order of termination of contractual engagement was passed.

As has been noticed herein-above, respondents have complied with the principles of natural justice before issuance of the impugned order and that too one month before issuance of the impugned order dated 27.08.2013. Reliance of the petitioner on the judgment rendered by the Hon''ble Supreme Court in the case of V.P. Ahuja Vs. State of Punjab and Others, AIR 2000 SC 1080 : (2000) 85 FLR 197 : (2000) 3 JT 1 : (2000) 1 LLJ 1099 : (2000) 125 PLR 696 : (2000) 2 SCALE 233 : (2000) 3 SCC 239 : (2000) 2 SCR 130 : (2000) 1 UJ 630 : (2000) AIRSCW 792 : (2000) 2 Supreme 259 is of no aid to the petitioner as it is found that in the said case, services of the probationers were terminated without notice stating that employee has failed to perform his duties administratively and technically. Petitioner herein was engaged only on contractual basis and his services were governed by the terms and conditions of the appointment letter (annexure-1) which has already been noticed hereinabove. Reliance of the learned Senior Counsel for the petitioner on the judgment rendered by the learned Division Bench of this Court in the case of Bipin Kumar Singh Vs. State of Jharkhand and Others, (2006) 4 JCR 420 is also of no help to the petitioner as in the present case, it is noticed that the impugned order terminating the contractual engagement of the petitioner has been passed after due compliance of the principles of natural justice i.e. after issuance of show-cause which petitioner failed to respond. Reliance of the petitioner on the aforesaid judgment would not improve his case. Petitioner was engaged under Child Development Project as a Clerk-cum-Typist on contractual basis for a period of one year initially, as per Annexure-1, subject to evaluation of satisfactory service and not as a substantive appointment on a permanent or temporary post under the Government to be entitled to such protection. Petitioner has not been able to show that he has right to hold the post in the nature of a substantive appointment to a permanent or temporary post under the Government to claim protection under Article 311 of Constitution of India. Petitioner''s engagement is governed by the terms and conditions of the contract of appointment letter at Annexure-1. For being entitled to claim protection under Article 311 Part XIV Chapter-1 of Constitution of India, petitioner has to satisfy two tests namely, (i) whether Government Servant had a right to the post or the rank (ii) whether he has been visited with evil consequences as contemplated under Article 311 of Constitution of India.

Petitioner, as already noticed hereinabove, has failed to establish that he had a right to hold the post in the nature of substantive appointment on a permanent or temporary post under the Government. The proposition of law on the subject has been settled by the Hon''ble Supreme Court in the case of Parshotam Lal Dhingra Vs. Union of India (UOI), AIR 1958 SC 36 : (1958) 1 LLJ 544 : (1958) 1 SCR 828 . If the engagement of the petitioner was on contractual basis and despite notice when he failed to respond to the charges contained therein, the conclusion that the services of the petitioner was not satisfactory to be continued cannot be found fault with. Terms and conditions of the appointment letter also stipulate that after issuance of one month notice, contract would be terminated if the services is not found to be satisfactory. Facts as has been noticed show that petitioner was not only issued show-cause notice but also has been implicated in the criminal case based upon the same charges. Therefore, considering the totality of the facts and circumstances noticed hereinabove, this Court is not inclined to interfere in the impugned order in exercise of its discretionary jurisdiction. Accordingly, the writ petition is dismissed.