State Of Himachal Pradesh And Others vs Rishu

Chander Bhusan Barowalia, J

The instant petition has been filed for grant of following substantive relief:

(i) That the present petition may kindly be allowed and the judgment dated 17.7.2019 passed by the learned Administrative Tribunal in OA No.6209 of

2017 titled as Rishu vs. State of Himachal Pradesh & others, may kindly be quashed and set aside by issuing a writ of mandamus.

Material facts necessary for adjudication of the instant petition are that respondent was appointed as a Warder (Class-III) in the Department of

Prisons & Correctional Services, Himachal Pradesh, vide Office Order No.2-4/89-Jails-II, dated 13.1.2015, purely on contract basis on the fixed

contractual amount at the rate of Rs.7810/-per month initially for a period of one year, on the specific terms and conditions of contract, as prescribed

and approved, under the provision of Recruitment & Promotion Rules, 2013, for the post of Warder notified, vide Home Department, Government of

Himachal Pradesh, Notification No.Home-B(B)2-4/94-I-Jails dated 31.1.2014. Thereafter, the respondent after executing a contract agreement on the

prescribed terms and conditions joined at Model Central Jail, Nahan, accepting all the terms and conditions of his appointment. As per Condition No.3,

of his appointment order and Condition No.1, of the contract agreement executed by him, the engagement on contract basis of the respondent be

extendable on year to year basis, as per the work and conduct certificate issued by the Head of the Department on the recommendations of the Head

of Office/Superintendent Jail. The respondent right from his joining on first appointment on 22.1.2015, was found habitual of absenting himself from his

duty by overstaying 86 days from the sanctioned leave without prior permission of the competent authority despite the fact that he being a contract

employee was entitled to limited leave, as per Rules and Condition No.4, of his appointment order. Respondent was found absent from his duty for 180

days w.e.f. 14.12.2015 to 1.4.2016. In the meantime, three months basic training course for newly recruited Warders was fixed at 1st Indian Reserve

Battalion Sakoh, District Kangra at Dharamshala, from 16.7.2015 and he was again directed through Station House Officer, Dharamshala, by way of

wireless message to attend the said training The training was over on 1.11.2015, but it is a matter of great concern that the respondent reported for

duty at Model Central Jail, Nahan, on 6.11.2015, after five days willful absence. Thereafter, again respondent proceeded on sanctioned leave from

5.12.2015 to 13.12.2015 for nine days, but he did not report for duty at Model Central Jail, Nahan.

Feeling aggrieved, the impugned judgment, dated 17.7.2019, passed by the learned erstwhile Administrative Tribunal, the petitioners maintained the

present petition.

Learned Additional Advocate General has vehemently argued that it was a clear cut case of abandonment of duty and the respondent has chosen

not to continue with his job, as he was on contract basis and his non-joining of the post, he remained absent from the post without applying leave, so

the impugned judgment passed by the learned erstwhile Administrative Tribunal, is required to be set aside.

On the other hand, learned counsel for the respondent has strenuously argued that the petitioner has applied for ten days leave on account of the

ailment of his mother, which was duly sanctioned by the petitioners-department, on 4.12.2015. Thereafter, as the ailment of his mother deteriorated,

and he was only one to look after his mother, as his father has deserted his mother twenty two years ago and his sister got married, petitioners

concerned, should have granted extension of contract to him and continued him in service on contract basis. In support of his arguments, he has relied

upon the following judgments :

M/s Scooters India Ltd. vs. M. Mohammad Yaqub and another, Hon’ble Apex Court in C.A. No.1471 of 1999, decided on 21.11.2000.

Jai Bhagwan vs. Management of the Ambala Central Co-operative Bank Ltd. and another, Hon’ble Apex Court in Civil Appeal No.5274 (NL)

and 5275, decided on 29.9.1983

Babu Lal vs. State of Haryana and others, 1991 (2) Supreme Court Cases, 335.

To appreciate the arguments of learned Additional Advocate General and learned counsel for the respondent, we have gone through the entire

records of the case in detail.

The case of the petitioner is that his mother was ill in the year 2009, but there is nothing on record to show that her ailment was deteriorated in the

year 2015. A perusal of the record suggests that he has availed two months leave on account of his self depression during the short span of his service

period, when he was in service on contract basis. Record also suggests that he was praying for transfer from Nahan to Dharamshala, or some other

place, but there was no request for his extension of leave period.

Clause 5 of the contractual employee reads as under :

“Unauthorized absence from the duty without the approval of the controlling officer shall automatically lead to the termination of the contract.

Contract appointee shall not be entitled for contractual amount for the period of absence from duty.â€​

The conduct of the respondent shows that he did not accept to continue with his job, hence abandoned his job, when he was not on the job, his

contract period could not have been extended. The learned erstwhile Administrative Tribunal has failed to taken into consideration this aspect of the

case and has passed the order on the presumption that the respondent was a regular employee. Moreover, the inquiry was not required to be

conducted before terminating his service for the reason that he was an employee on contract basis and his contract period could have been renewed

only when, he has been marked the attendance on contract basis, but his continuous absence from the Central Jail, Nahan, where he was in service on

contract basis, his contract cannot be extended.

In Hon’ble Supreme Court in M/s Scooters India Ltd. vs. M. Mohammad Yaqub and another, in C.A. No.1471 of 1999, decided on 21.11.2000,

wherein it has been held as under :

“The question which then arises is whether the principles of natural justice were followed in this case. As has been set out herein above. Mr.

Swarup had submitted that the workman had been given an opportunity to join the duty and that he did not join duty even though repeatedly called

upon to do so. It is contended that principles of natural justice have been complied with in this case. However, the material on record indicates

otherwise. The Labour Court in its award sets out and accepts the respondent’s case that he had not been allowed to join duty. The respondent

had given evidence that even though he personally met Chief Personnel Officer he was still not allowed to enter the premises. The evidence is that in

spite of slip Ex.W.2, he was prevented from joining duty when he attempted to join duty. The slip Ex.W.2 had been signed by the Security Inspector of

the appellant. This showed that the respondent has reported for work. As against this evidence the appellant has not led any evidence to show that the

workman had not reported for duty. Even though, the slip Ex.W.2 had been proved by the workman, the Security Inspector, one Mr. Shukla was not

examined by the appellant. Further the evidence of the Senior Time Keeper of the appellant established that the workman had worked for more than

240 days within a period of 12 calender months immediately preceding the date of termination of service. This was proved by a joint inspection report,

which was marked as Ex.45/A. It was on the basis of this material and this evidence that the Labour Court came to the conclusion that there was

retrenchment without following the provisions of law. As the workman was not allowed to join duty, standing order dated 9.3.2012 could not have

been used for terminating his services.â€​

Similarly, Babu Lal vs. State of Haryana and others, 1991 (2) Supreme Court Cases, 335, has held as under :

“Moreover, from the sequences of facts of his case the inference is irresistible that the impugned order of termination of the service of the

appellant is of penal nature having civil consequence. It is well settled by several decisions of this Court that though the order is innocuous on the face

of it still then the Court that though the 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 if 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 Smt. Rajinder Kaur v. State of Punjab and Another, [1989] 4 SCC 181 in which one of us is a party. It has

been held that:

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 f dismissal

from service 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 witness 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.

Both these judgments are on different facts in which, workman reported for duty, so these judgments are not applicable in the facts and

circumstances of the present case, as the respondents remained continuously absent and never reported for duty for extending the contract period.

From the aforesaid discussions, it is quite clear that the respondent was not interested to continue with his job at Nahan, which is quite evident

from the letters addressed to the respondent wherein he was always requested that he cannot live at Nahan with his mother and shall be transferred

to his home station and his continuous absence from duty. Even though, there was given wireless message to report for duty immediately otherwise his

contract shall be terminated and intimation of the same was given to him was also confirmed by the concerned Station House Officer, but the

respondent did not report for duty. Even, there was full co-operation by the petitioners and allowed leave, as and when requested by him, he used to

remain absent from his duties by overstaying the sanctioned leave every time. He did not amend his conduct and behaviour even after warning many

times orally and in writing, vide letter No.1736-37 dated 30.3.2015, whereby he was strictly warned by the Superintendent Jail/Head of Office not to

repeat such misconduct, failing to comply will lead towards termination of services. However, the respondent was absent during this period. In view of

his willful absence, not complying with the directions to report for duty and habitual absence, Superintendent of Jail, did not recommend renewal of his

contract, which due to his absence lapsed in view of the terms and conditions of the contract. He did not report from the renewal of the contract, his

contract period could not be renewed.

The judgments as cited by the learned counsel for the respondent are not applicable to the facts and circumstances of the instant case, as contract

of the respondent was not renewed and he could not come for duty and to get his contract renewed and remained continuously absent on the pretext

of ailment of his mother. There is no document on record to show that there was such a serious ailment of his mother that he could not go to his place

of posting to get the contract renewed. So, in these circumstances, the judgments as cited by the learned counsel for the respondent are not applicable

to the facts of the present case, as the petitioners-department has not renewed his contract.

In view of the aforesaid discussions made hereinabove, the instant petition is allowed and the impugned judgment passed by the learned erstwhile

Tribunal in OA No.6209 of 2017, dated 17.7.2019, is quashed and set aside. No order as to costs. Pending miscellaneous application(s), if any, also

stands disposed of.