Sunita Omkar Ambatkar vs The Union Of India And Others
2017 Latest Caselaw 1352 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                       WRIT PETITION NO.5814 OF 2015

    Ms. Sunita  d/o Omkar Ambatkar           ... Petitioner
    Age 30 years, Occu: Nil
    R/o Satkar Colony,
    Near S.G.B.S.College, Purna
    Tq. Purna, Dist. Parbhani

    VERSUS

1. The Union of India
   Through its Secretary,
   Ministry   of   Health   and   Family 
   Welfare, Govt. of India,
   Nariman Bhavan, New Delhi

2. The State of Maharashtra,
   Through Its Seecretary,
   Health Services Department,
   Mantralaya, Mumbai.

3. The Commissioner,
   Family Welfare and Director, 
   National Rural Health Mission,
   State Health Society,
   Arogya Bhavan, 3rd Floor,
   St. Jeorge Hospital Premise,
   P. D'mellow Road, CST,
   Fort, Mumbai.

4. The Chief Executive Officer,
   Zilla Parishad, Parbhani,

5. The Collector,
   Collector Office, Parbhani.

6. The District Health Officer,
   District Health Office, 
   Parbhani.

7. The Civil Surgeon,                        ... Respondents
   Civil Hospital, Parbhani.


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Mr. U. R. Awate and Mr. Amol Chalak, Advocates for the 
petitioner
Mr. M. B. Bharaswadkar, AGP for respondents 2, 3 5 & 7.
Mr. R. B. Bagul, Standing Counsel for Respondent No.1
Mr. Vivek Bhavthankar, Advocate for respondent No.4

                             CORAM          :  S. V. GANGAPURWALA & 
                                              K. L. WADANE, JJ.
                             RESERVED ON    :  2nd March,  2017

                             PRONOUNCED ON  : 31st March, 2017


JUDGMENT (Per K. L. Wadane, J.):  

1. Heard the learned counsel for the parties.

2. Rule. Rule made returnable forthwith. With

consent of parties, the petition is taken up for final

disposal.

3. The petitioner has challenged the order dated

21.02.2015 passed by respondent No.3 by which services

of the petitioner were terminated w.e.f. 05.08.2014.

4. Case of the petitioner, in brief, may be stated

as follows:

i. The petitioner came to be selected as IPHS

Coordinator purely on contract basis at District Civil

Surgeon, General Hospital, Parbhani for a period of 12

months from 12.09.2008 to 11.09.2009. Subsequently, she

was appointed from time to time during the period from

wp5814-15.odt 12.09.2008 to 11.09.2009, 15.09.2009 to 14.09.2010,

17.09.2011 to 31.03.2012.

ii. On 15.03.2012 a false complaint was forwarded to

the Minister. Pursuant to which, Respondent No.3

directed Respondent No.4 to look into the matter and

report. Petitioner replied the said complaint and

denied the charges. Respondent No.3 informed to

respondent No.4 that work of the petitioner was not

satisfactory during the period from 05.03.2012 to

04.02.2014 and six months time was given to the

petitioner to improve her performance.

iii. The Petitioner is suffering from Polio and she

was to go to Vishakhapatanam for surgery and therefore

she was on medical leave for three months from

18.08.2014 to 18.11.2014. She was under medical

treatment till 20.01.2015.

iv. On 06.12.2014, respondent No.6 issued show

cause notice to the petitioner to which the petitioner

replied that she has completed more than seven years

of service, her work was satisfactory and there was

no complaint against her. The petitioner made

applications to the Collector as well as Respondent

No.6 on 19.01.2015 and 29.01.2015, requesting to allow

wp5814-15.odt her to join duties. On 21.02.2015 termination order

was issued, terminating services of the petitioner

w.e.f. 05.08.2014 that too without hearing the

petitioner.

5. Respondent No.6 filed affidavit in reply and

has stated that respondent No.4 has conducted enquiry,

in which it was revealed that petitioner was sending

false reports without visiting to the concerned Health

Centres. Therefore, it was intimated to the petitioner

that if no improvement is shown, then no continuation

in service will be given. After medical leave the

petitioner did not join services and therefore,

subsequently, after issuing various show cause notices,

services of the petitioner are terminated on the

ground of unsatisfactory performance.

6. Respondent No.3 filed affidavit and stated that

performance of the petitioner was not satisfactory. The

petitioner was appointed purely on temporary and

contract basis and period of such contract came to an

end on 05.08.2014. The Petitioner did not apply for

continuation of services. Meantime, the proposal for

discontinuation of services of the petitioner was

received by respondent No.3 and on the grounds

wp5814-15.odt mentioned in the proposal, respondent No.3 has

terminated the services of the petitioner by order

dated 21.02.2015 w.e.f. 05.08.2014.

7. We have heard Mr. U. R. Awate and Mr. Chalak,

the learned counsel for the petitioner, Mr. M. B.

Bharaswadkar, learned AGP for respondents 2, 3 5 & 7,

Mr. R. B. Bagul, Standing Counsel for Respondent No.1

and Mr. Vivek Bhavthankar, learned counsel for

respondent No.4.

8. The learned counsel appearing for the petitioner

has stated that the petitioner was on medical leave

from 18.08.2014 to 18.11.2014, which was sanctioned by

respondent No.3. She had undergone surgery at

Vishakhapatnam during the period from 08.09.2014 to

20.09.2014. She was taking bed rest from 20.09.2014 to

20.01.2015. Subsequently, the petitioner tried to join

the duties but respondent no.6 did not allow her to

join the duties. According to the learned counsel,

termination order was passed by respondent No.3 without

giving her opportunity of being heard which is against

the principles of natural justice. The termination

order is bad in law also on the ground that it

terminates the services of the petitioner with

wp5814-15.odt retrospective effect.

9. As against this, Mr. Bharaswadkar, the learned

AGP argued that since services of the petitioner were

temporary and purely on contract basis and as her term

of contractual period was over, the petitioner did

not apply for continuation of service nor the the

department sent such proposal for continuation. On the

contrary, department sent proposal for discontinuation

of services of the petitioner on the ground that work

performance of the petitioner was not good.

Accordingly, respondent No.3 has rightly taken decision

to terminate services of the petitioner and passed the

impugned order. The learned AGP further argued that

since the petitioner was not regular/permanent employee

of respondent Nos. 7, it is not necessary to initiate

departmental enquiry. Services of the petitioner can be

terminated by giving show cause notice or by efflux of

contractual period and accordingly it is terminated.

10. Looking to the nature of the employment of the

petitioner, it is useful to refer to certain conditions

of contract of employment between the petitioner and

respondents, which reads as under:

(1) The temporary contractual employee may mind

wp5814-15.odt it well that this project is funded by the government of India for a specific period. His/her assignment will automatically come to an end on the expiry of the specific period or end of the scheme/activity in which he/she is employed and no notice, notice pay, retrenchment compensation will be payable to him/her by the society.

(2) Since his/her appointment is being made for a specified period, he/she will neither have any right nor a lien on the post held by him/her. also he/she will not claim regular employment, absorption, regularization, age relaxation, earned leave, annual increment to condone technical breaks even if there is such a vacancy for the post held by him/her. Otherwise if he/she wants to leave the service, he/she can do this by serving one month notice or salary of one month, if one month notice is not served. No compensation or remuneration of expired period of contract will be payable by the society if his/ her services are terminated or he/she resigns from the services of the society before the specified period of contract."

11. Admittedly, the petitioner was appointed

temporarily on contract basis. Therefore, she cannot

claim right as of regular and permanent employee of

the respondents. From the record, it is seen that the

work performance of the petitioner was unsatisfactory.

wp5814-15.odt Therefore, from time to time, intimations were given

to her to improve her work performance, however, from

the record, it is seen that inspite of opportunity

being given, the petitioner failed to improve her work

performance. Further, it is seen from the record that

the contractual period of the petitioner was upto 5th

August, 2014. Subsequently the petitioner did not apply

for continuation nor department had sent proposal for

her continuation in service. Therefore, on the date of

expiry of contract i.e. 05.08.2014, services of the

petitioner came to an end. Therefore, even it was not

necessary for the respondents to pass formal

termination order. Still, respondent No.3, after

receipt of the proposal for discontinuation, has passed

the impugned order and thereby terminated the services

of the petitioner w.e.f. 05.08.2014.

12. From the affidavit of respondent No.7, it

appears that petitioner did not resume her duties after

expiry of medical leave for a period of 21 days.

Therefore, respondent No.4 had issued letter dated

06.12.2014 directing the petitioner to join duties.

Further it reveals from the record that the petitioner

was on medical leave for three months during the period

from 18.08.2014 to 18.11.2014. As no proposal for

wp5814-15.odt continuation of service was sent, the services of the

petitioner came to an end with effect from 05.08.2014.

Therefore, the leave granted to the petitioner for

three months was presuming the petitioner to be in

service. However, subsequently such services of the

petitioner were terminated by order dated 21.02.2015

with effect from 05.08.2014. Therefore, granting such

medical leave to the petitioner is an irregularity on

the part of the concerned respondent. It also cannot

be said that services of the petitioner were terminated

with retrospective effect. Letter dated 21.02.2015 is

merely a communication to the petitioner. In fact the

services of the petitioner were never continued after

05.08.2014. On 05.08.2014 the period of her contractual

service came to an end.

13. Considering the nature of employment of the

petitioner, it was not necessary for the respondents

to initiate any departmental enquiry and thereafter

terminate the services. Moreover, the respondents

have, from time to time, informed to the petitioner

that in case there was no improvement in her

performance, then her services would be terminated. So,

the services of the petitioner were terminated after

giving notice mainly on the ground of unsatisfactory

wp5814-15.odt work and for sending false report without visiting the

health centers.

14. When the show cause notices were issued to the

petitioner, she replied the same and therefore, it

cannot be said that the petitioner was not heard. Mr.

Awate, the learned counsel appearing for the

petitioner has relied on the following judgments:

(1) Jagdish Prasad Vs. Sachiv, Zilla Ganna

Committee, (1986) 2 SCC 338, wherein it is observed

that "....But the order did cast a stigma on the

service career of the appellant and it was in effect an

order of termination on the charges of concealment of

the fact that he was removed from his earlier service

on the charge of corruption. The order thus was penal

in nature, having civil consequences and it also

prejudicially affected his service career."

(2) Assaram Raibhan Dhage Vs. Executive Engineer, Sub

Divisional, Mula, 1988 (4) Bom. CR 158, wherein it is

observed that the employment even if temporary, could

not be terminated with retrospective effect.

(3) ABL International Ltd. and Anr. Vs. Export Credit

guarantee Corp. of India, (2004) 3 SCC 553, wherein it

wp5814-15.odt is observed that requirement of Article 14 extend even

in the sphere of contractual matters.

(4) The learned counsel also relied the judgment in

the case of Kumari Surelekha Vidyarthi Vs. State of UP

and ors,(1991) 1 SSC 212 wherein it is observed that

requirement of Article 14 extend even in the sphere of

contractual matters and the State has no right to act

whimsically and arbitrary.

(5) Satish Joshi Vs. Union of India and Anr., 2013 SCC

Online Del 1156, wherein it is observed that even in

the contractual matters, state does not have right to

act whimsically and arbitrarily.

(6) The learned counsel also relied on the judgment in

the case of Mohd. Abdul Kadir & Anr. Vs. Director

General of Police, Assam and ors., (2009) 6 SCC 611, to

contend that service continues when project or scheme

is existed.

15. We have gone through the above case laws.

Observations in the above judgments are not

applicable to the facts of the present case simply

because, as per the employment contract, services of

the petitioner came to an end with effect from

wp5814-15.odt 05.08.2014. The petitioner did not apply for

continuation nor the department has suo moto continued

the petitioner in services. In view of the fact that

her work performance was not satisfactory, the

Department had sent proposal for discontinuation of

services of the petitioner which were already came to

an end in the month of August, 2014. Therefore, the

observations of the above cited authorities are not

applicable to the facts of the present case.

16. Considering the facts and circumstances of the

case, we are of the opinion that there is no substance

in the writ petition. Hence it is dismissed. Rule

discharged. No costs.

(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )

JPC