Sadananda Doloi vs State of Orissa and Others

B.P. Das, J.—This writ petition under Articles 226 and 227 of the Constitution of India has been filed with a prayer to quash the order dated 19.2.2001 issued by the Grid Corporation of Orissa Ltd., O.P. No. 5, terminating the services of the petitioner, vide Annexure 23.

The facts leading to the present writ petition may be stated thus :

In response to an advertisement issued by the Grid Corporation of Orissa Limited (in short ''GRIDCO''), vide Annexure-1, the petitioner applied for the post of Senior General Manager (H. R. Policy, Job Evaluation, Appraisal, Remuneration ) (in short ''Sr. G.M. (HR)''). O.P. No. 4 was also an applicant for the post of Senior General Manager (Manpower, Planning, Training &'' Development (in short ''Sr. G,M. (MPTD)''). The petitioner appeared in the written test as well as the interview along with nine other candidates and was empanelled for the post of Sr. G.M. (HR) as per the minutes of the meeting of the Selection Committee constituted by the GRIDCO for selection of candidate for the above post dated 22.8.1996, vide Annexure-3. Similarly O.P. No. 4 was selected for the post of Sr. G.M. (MPTD) by the Selection Committee set up for selection of candidate for the said post as per the minutes of the meeting dated 22.8.1996, vide Annexure-4.

Pursuant to the offer of appointment communicated by letter dated 8.1.1997 (Annexure-5), the petitioner while accepting such offer of appointment as Sr. G.M. (HRD), by letter dated 30.1.1997 (Annexure-6 series) intimated the GRIDCO that he was already holding a position of Deputy General Manager (P&A) in MAMC., which was a Govt. of India Enterprise, and heading the Personnel Division of the said Company, and requested to allow him to retain the lien with the MAMC. But the request of the petitioner was turned down by the GRIDCO by its letter dated 3.2.1997, vide Annexure-6 series. The GRIDCO then issued a letter of appointment to the petitioner dated 6,2.1997 with certain terms and conditions, vide Annexure-6 series, and as per the said terms and conditions, his tenure was fixed for a period of three years on contract basis subject to renewal on the basis of performance, The petitioner ultimately joined the post of Sr. G.M. (HRD) in the GRIDCO with effect from 30.4.1997 F.N., as would appear from Annexure-8. Thereafter by office order dated 23.6.1-997 (Annexure-9), the O.P. re-designated certain posts including the post of Sr. G.M. (HRD), which was held by the petitioner, as Chief General Manager (HR) (in short ''CGM (HR)''). By letter dated 29.10.1997 (Annexure-10), the O.P. amended one of the terms''and conditions as laid down in the letter of appointment dated 6.2.1997, and communicated the said amendment to the petitioner, which is to the following effect:

"(2) Period : Your tenure of appointment shall be on a contract basis initially for a period of three years & renewable thereafter for such period(s) as the Board or the Committee of the Board may prescribe until you attain the age of superannuation as provided in the GRIDCO OFFICERS SERVICE REGULATIONS. This contract of employment is, however, terminable even during this three-year term on three months'' notice or on payment of three months'' salary in lieu thereof by either side."

According to the petitioner, after the retirement of Shri H. S. Misra, Director (HRD), by officer order dated 26.10.1999 (Annexure-12) the petitioner was entrusted with the additional duty of the areas of H.R. Department and I.R. and in spite of his extraordinary performance, the GRIDCO did not extend his tenure for a further period of three years but only for a period of six months, i.e., up to 3.11.2000, vide Annexure-14. On 3.6.2000 the petitioner made a representation to the Chairman-cum-Managing Director (C.M.D.) of GRID''CO for extension of his tenure of appointment till superannuation as per Annexure-15. The petitioner further stated that in the minutes of the deferred 15th meeting of HRD Committee held on 27.3.2000 (Annexure-16), the Committee amongst other decisions decided in paragraph (vii) under item No. 1 as follows :

"(vii) The HRD Committee perused the CCRs of Sri S. Doloi and observed that the CCR was available for the period from 30.4.97 to 30.9,99. The HRD Committee also perused the CCRs of Sri P. C. Panda for the period from 4.11.96 to 30.9.99 and noted that the performance of Sri Panda was found to be better than Sri S. Doloi. The Committee further noted that Sri P. C. Pan.da joined the post of CGM on 4.11.96 whereas Sri S. Doloi joined the post on 30.4.97 and therefore Sri Panda becomes senior to Sri S. Doloi in the grade of CGM in HRD discipline. Considering the performance of Sri S. Doloi as recorded in the CCR, the HRD Committee agreed to extend the tenure of Sri S. Doloi which is expiring on 29.4.2000 for a further period. However, taking into consideration the inter se seniority, the extension of tenure of Sri P. C. Panda already approved, the number of posts existing and proposed in the grade, the HRD Committee unanimously agreed that the tenure of Contract of both the incumbents in CGM (E-10) grade should be co-terminus and accordingly approved extension of tenure of contract of Sri S. Doloi, CGM (HR) upto 3.11.2000."

Petitioner''s case is that the aforesaid minutes of the meeting of the HRD Committee in Annexure-16 is illegal and recorded with an evil motive to protect the job of O.P. No. 4. In course of argument, learned counsel for the petitioner submitted that by virtue of Annexure-18, the Deputy Manager (HR) requested the Committee of the Board of Directors of the GRIDCO to allow the petitioner to continue for a further period of three years or till he attained the age of superannuation. It was argued that the HRD Committee misread the decision of the Board of Directors deciding to limit the number of posts to one by the year 2003 and, according to the petitioner, as per the existing sanctioned strength there were two posts of CGM, i.e., CGM (HR policy, Job Evaluation, Appraisal and Remuneration) and CGM (Manpower Planning Training Development). By 2003 in the revised corporate sector there would be one post designated as CGM, Corporate H. R. Policy and Establishment, and eventually the said post was held by the petitioner, and one post designated as Sr. G.M. Corporate Training and Development, the equivalent job responsibility of which was being held by O.P. No. 4 and both the posts cannot be said to be in the HR Department as held by the HRD Committee. That too, according to the petitioner, the decision of the HRD Committee holding that the CCR of O.P. No. 4 was better than that of the petitioner was taken with a mala fide intention and the seniority of O.P. No. 4 so fixed above the petitioner was absolutely wrong because both the petitioner and O.P. No. 4 belonged to two different cadres and there was no question of comparing the petitioner with O.P. No. 4 when they were holding two separate posts in different wings. Therefore, according to the petitioner, comparison of either the CCR or fixing inter se seniority of the petitioner with that of O.P. No. 4 is wrong and illegal.

The further case of the petitioner was that by letter dated 1.11.2000 (Annexure-20) petitioner''s tenure of appointment was extended till 3.11.2001. Thereafter on 22.11.2000 the petitioner represented to the C.M.D. to review the decision and allow him to continue in service till his superannuation, vide Annexure-21. But without considering his representation, the Director (HRD) issued office order dated 19.2.2001 terminating his services without any rhyme and reason (Annexure-23). While ascribing mala fides against the opposite parties, the petitioner has drawn the attention of this Court to the letter dated 22.3.2000 of the GRIDCO forwarding the bio data of the petitioner as well as O.P. No. 4 for the post of Director (HR) (Annexure-24). But ultimately O.P. No. 4 was selected to be appointed as Director (HRD) of GRIDCO. It was alleged that the rules were twisted in order to give undue favour to O.P. No. 4 and his case was rejected illegally by comparing the CCR of O.P. No. 4 with that of the petitioner. It is alleged that after O.P. No. 4 took over the charge of Director (HRD) became vindictive and started issuing office orders including the order dated 28.9.2000 (Annexure-29) with a motive to undermine the position of the petitioner by abolishing the post of CGM (HRD) in grade E-10 and unilaterally re-designating the post of CGM (HR) as CGM (HRD), and withdrew certain powers and privileges enjoyed by the petitioner. According to the petitioner, the minutes of the 16th meeting of the HRD Committee in Annexure-33 would indicate that the extension of tenure of appointment of the petitioner was considered and considering the performance of the petitioner during his tenure and requirement of the GRIDCO, the Committee unanimously decided to extend the contract of appointment for a further period but as there was no consensus amongst the members of the Committee regarding the period of extension, the same was decided to be placed before the CMD for decision. According to the petitioner, the Director (Commercial) and the Director (Engineering), who were members of the HRD Committee, in their letters addressed to the Director (HRD), vide Annexures 34 and 35, intimated that they had expressed their view that the service tenure of the petitioner could be extended up to the age of his superannuation in case there be no technical/legal restriction for the same. At the same time it was suggested by them that in case there be any such bar, then the service tenure might be extended for a further period of three years. The Director (HRD) and Director (Finance) expressed their opinion that the tenure of appointment of the petitioner should not be extended beyond one year. It is pertinent to mention here that the Director (Commercial) was one of the members of the HRD Committee and a party to the 16th meeting of HRD Committee. The aforesaid minutes was placed before the CMD on 29.10.2000 and the CMD passed the order extending the tenure of service of the petitioner for one year only. The petitioner alleged that in similar circumstances, when the tenure of the Director (Finance) and Director (Distribution) was extended for a period of three years, there was no occasion to deny such benefit to him. Challenging the order of termination, it was further argued that the tenure of appointment of O.P, No 4 was extended up to 3.11.2000 only to facilitate him to be nominated to the Board as Director (HRD). As per him, since the tenure of O.P. No. 4 has expired with effect from 4.11.2000, he is no more a Director and has no jurisdiction to issue the impugned order terminating the services of the petitioner as well as taking any other decisions after 4.11.2000.

Opposite party Nos. 3,4 and 5 have filed a counter affidavit in which a specific stand has been taken by them that the petitioner was initially offered the appointment by letter dated 8.1.1997 followed by an amendment thereto made in letters dated 29.1.1997 and 3.2.1997. The petitioner accepted the offer of appointment and the terms and conditions and intimated such acceptance by the FAX message and registered letter dated 30.1.1997 and 5.2.1997. According to the opposite parties, by office order dated 6.2.1997, the petitioner was appointed for a fixed period of three years purely on temporary and contract basis terminable even during the three year term on three months'' notice or on payment of three months'' salary in lieu thereof and as such the appointment being purely contractual, the petitioner has no right to the post. The petitioner after accepting the offer of appointment joined the post on 30.4.1997 and during the period of extension, petitioner''s services were terminated by office order dated 19.2.2001 (Annexure-G/3/Annexure-23). Since the petitioner did not receive the order of termination sent along with a cheque covering three months'' salary in lieu of three months'' notice period, on 20.2.2001 the order of termination together with the cheque etc. was again sent to the petitioner with a forwarding letter vide Annexure-J/3 series. By way of abundant caution, the order of termination was also published in the "New Indian Express" in its Bhubaneswar edition as. well as "Sambad" on 24.2.2001. According to the opposite parties, the order terminating the services of the petitioner is sirnpliciter without attaching any stigma and was not passed by way of any punishment but in accordance with the terms and conditions stipulated in the letter of appointment and the order of extension.

The sum and substance of the contention of the opposite parties in that the services of the petitioner were terminated in terms of the order of appointment and the petitioner has no right to the said post and that too, the allegation of illegal termination is absolutely not sustainable. So far as the allegation of mala fide is concerned, it was argued by the learned counsel for the O.Ps. that mere allegation of mala fide is not enough and the petitioner has to prove the same and the petitioner has miserably failed to do so.

In the backdrop of the rival contentions made above, at the outset it would be profitable to have a look at the terms and conditions of appointment contained in the letter dated 6.2.1997 (Annexure-A/3). Clause (2) of the aforesaid letter, which provides the tenure of appointment, reads thus :

"Period: The tenure of appointment as Sr. General Manager (HRD) is for a period of THREE years on contract basis subject to renewal on the basis of your performance. This contract of employment is, however, terminable even during this three year term on three months'' notice or on payment of three months salary in lieu thereof by either side.

X X X"

It is worthwhile to mention here that the initial offer of appointment dated 8.1.1997 (Annexure-5) was amended by letters dated 29.1.1997 and 3.2.1997 (Annexures-B/3 series). In the aforesaid letter dated 29.1.1997 it was pointed out that the last date of submission of acceptance of the terms and conditions of offer of appointment was inadvertently mentioned as 25.2.1997 instead of 25.1.1997 and the petitioner was requested to communicate his acceptance of the offer by 5.2.1997. By letter dated 3.2.1997 the management informed the petitioner that the GRIDCO would prefer his joining without retaining lien with his employer, i.e., MAMC. The O.Ps. also made it abundantly clear to the petitioner that it would not be possible for them to protect his basic pay, (i.e., Rs. 5990/- at MAMC) and then fix the petitioner in the scale as desired by him. However, the last pay, i.e., basic + D.A. drawn before his joining might be considered for protection with a basic pay in the offered scale of pay after adjustment of D.A. in CDA pattern. The petitioner by his letter dated 5.2.1997 (Annexure-C/3 series) informed the Director (HRD) that he had gone through the contents of the letter dated 3,2.1997 and the same were acceptable to him. By the letter dated 29.10.1997 (Annexure-10) the petitioner was informed that para (2) of the order of appointment dated 6.2.1997 was amended as follows :

"(2) Period : Your tenure of appointment shall be on a contract basis initially for a period of three years & renewable thereafter for such period (s) as the Board or the Committee of the Board may prescribe until you attain the age of superannuation as provided in the GRIDCO OFFICERS SERVICE REGULATIONS. This contract of employment is, however, terminable even during this three-year term on three months'' notice or on payment of three months'' salary in lieu thereof by either side."

The other terms and conditions indicated in the order of appointment, however, remained unaltered. The tenure of Service of the petitioner was extended by letter 29.3.2000 (Annexure-E/3/Annexure-14) up to 3.11.2000 on the same terms and conditions as stipulated in the letters dated 6.2.1997 and 29.10.1997. By letter dated 1.11.2000 (Annexure-F/3) petitioner''s service was extended for a further period of one year, i.e., up to 3.11.2001, on the same terms and conditions as stipulated in the letter dated 6.2.1997 and 29.10.1997 and ultimately the services of the petitioner stood terminated with effect from 19.2.2001 A.N. as per the office order dated 19.2.2001 (Annexure-23) which is the impugned in this writ application. The fact remains that the petitioner initially accepted the terms and conditions of his appointment dated 6.2.1997 and joined the said post which transpires from the communications dated 30.1.1997 and 5.2.1997 (Annexure-C/3 series) made by the petitioner to the opposite parties. It is also a fact that during the tenure of the petitioner''s service, the letter of appointment dated 6,2.1997 was amended bringing certain changes in the tenure of service which was never objected to by the petitioner who remained contented with the amended terms and conditions after getting extensions of his tenure at different points of time. The terms and conditions as enumerated in the letter dated 29.10.1997 (Annexure-D/3), inter alia, indicate that the contract of employment was, however, terminable even during the three-year term on three months'' notice or on payment of three months'' salary in lieu thereof by either side. The orders dated 29.3.2000 and 1.11.2000 also indicate that petitioner''s service was extended on the same terms and conditions as stipulated in the appointment letter dated 6.2.1997 and 29.10.1997. A bare reading of the letter of appointment dated 6.2.1997 indicates that the petitioner would be governed by the Grid Corporation Officers Service Regulations, 1996 (hereinafter called ''the Regulations''). Regulation 44(2) stipulates the actions which shall not amount to penalty within the meaning of the Regulations. Clause (h) of Regulation 44(2) provides :

"(h) termination of service of an Officer :

(i) appointed on probation, in terms of these Regulations ;

(ii) appointed in a temporary capacity on the expiration of the period for which he was appointed, or earlier in accordance with the terms of his appointment;

(iii) appointed under a contract or agreement, in accordance with the terms of such contract or agreement, and

(iv) as part of retrenchment."

It, therefore, appears that the petitioner''s case is squarely covered by Sub-clause (iii) of clause (h) of Regulation 44 (2) of the Regulations. Petitioner''s service can never be said to be in any way better than a contractual appointment and purely temporary in nature.

Learned counsel for the petitioner relying upon a Constitution Bench decision of the Apex Court in Jagdish Mitter Vs. The Union of India (UOI), wherein order of discharge of a temporary servant stating that he was found undesirable to be retained in service was quashed on the ground of non-compliance with Article 311(2) of the Constitution, submitted that the impugned order of termination in Annexure-23 is not an order simpliciter and hence liable to be quashed.

A bare reading of Annexure-23 indicates that it is a termination simpliciter and is in terms of the letter of appointment and its amendment thereafter, which has been accepted by the petitioner. The ratio of the decision as cited by the learned counsel for the petitioner in Jagadish Mitter''s case (supra) is that when the order unambiguously indicates that the said termination is the result of punishment sought to be imposed upon the petitioner, he can invoke the protection of Article 311 of the Constitution claiming that the mandatory provisions of Article 311(2) have not been complied with even if a public servant, whether employed in temporary service or probation. The ratio of the above decision of the Apex Court is not applicable to the facts and circumstances of the case at hand. At this stage learned counsel for the O.Ps. submitted that the petitioner being not a civil servant, the principles governing Article 311(2) of the Constitution are not applicable to him. In view of the observations made in the foregoing paragraphs, this question needs no further elaboration. It is well settled that where the appointment is purely contractual by efflux of time the person holding such post can have no right to continue in the post.

It was further well settled by the Apex Court in the case of State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, that under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. The Apex Court further held as follows :

"A temporary Govt. servant has no right to hold the post, his services are liable to be terminated by giving him one month s notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt. Servants..."

Relying upon the principles enunciated above, it is difficult to accept the claim of the petitioner. The petitioner was on a contractual service, and the terms and conditions of the contract and the service rules governing him give a right to the employer to terminate the service of the petitioner by giving him three months'' notice or three months'' salary in lieu thereof . The impugned order is an order of termination by innocuous terms and does not cast any stigma on the petitioner. It is also not founded on misconduct. For the above reasons, the impugned order of termination is not vitiated by any irregularity and cannot, therefore, be faulted with and the order as per Annexure-23 is not open to challenge.

So far as the allegation of mala fide is concerned, the opposite parties in their counter affidavit denied the same and placed their version in the matter. The onus was on the petitioner to discharge the burden of proving it, which the petitioner failed to do and the allegation of mala fide, as I find, have been made without any basis.

For the foregoing reasons, the writ application is devoid of any merit and is accordingly dismissed. No cost.