Sudip Mitra vs Gayeshpur Municipality & Ors
2021 Latest Caselaw 2145 Cal

                 IN THE HIGH COURT AT CALCUTTA
                   Constitutional Writ Jurisdiction
                           Appellate Side

Present :-   Hon'ble Justice Amrita Sinha


                       WPA No. 6365 of 2020
         I.A. No. CAN 1 of 2020 (Old No. CAN 4925 of 2020)
                            CAN 2 of 2021

                              Sudip Mitra

                                   Vs.
                     Gayeshpur Municipality & Ors.

                                   With

                       WPA No. 6366 OF 2020
         I.A. No. CAN 1 of 2020 (Old No. CAN 4928 of 2020)
                            CAN 2 of 2021


                           Ashim Kumar Nath

                                   Vs.

                     Gayeshpur Municipality & Ors.


For the writ petitioners      :-     Mr. Amal Baran Chatterjee, Adv.
                                     Ms. Biswanath Samanta, Adv.

For the State                 :-     Mr. Arjun Roy Mukherjee, Adv.
                                                [in WPA 6365 of 2020]

For Gayeshpur Municipality    :-     Mr. Ramkrishna Bhattacharya, Adv.
                                     Mr. K. Choudhury, Adv.

For the respondent no.5       :-     Mr. A. K. Dasgupta, Adv.

Hearing concluded on          :-     16.03.2021

Judgment on                   :-     19.03.2021


Amrita Sinha, J.:-

As facts of both the writ petitions are identical, they are taken up

for hearing analogously and disposed of by this common order.

CAN 2 of 2021 have been filed by the petitioners for getting the

matter heard on urgent basis. Affidavits in both the matters are over.

Both the matters are appearing in the list under the heading

'Application', and by consent of the parties the matter is taken up for

final disposal.

The petitioners are aggrieved by the action on the part of the

Gayeshpur Municipality in not extending their service contract which

expired on 31st March, 2020.

The petitioners were appointed as Sub-Assistant Engineer (Civil)

on 9th February, 2008 in the Gayeshpur Municipality on contractual

basis. The engagement letter of the petitioners specifically mentions that

they have been engaged on contract basis for the project duration period

for execution of schemes under JNNURM in the Municipality on a

consolidated remuneration of Rs.8,000/- per month. A formal agreement

was entered into between the petitioners and the Gayeshpur

Municipality. There were certain terms and conditions mentioned in the

contractual agreement. The petitioners agreed that they will not claim

regular appointment and/or absorption to the said engagement merely

by the reason of the agreement. The engagement was on contract basis

for the project duration period. The engagement was liable to be

cancelled by terminating the contract without assigning any reasons

and without payment of any compensation whatsoever. The petitioners

were not eligible for any permanent appointment or absorption in any

post by virtue of their engagement.

The project under which the petitioners were working came to an

end on 31st March, 2017. After the closure of the project the Gayeshpur

Municipality engaged the petitioners to look after the works of the

Municipal Engineering Department or as assigned by the Municipal

Authority time to time with effect from 2nd May, 2017, on purely

temporary basis, for a period of six months, at a monthly honourarium

of Rs.8,000/- only. The engagement was purely temporary and valid up

to 31st October, 2017 or until further order, whichever is earlier. The

engagement letter issued in favour of the petitioners clearly mentioned

that no claim will be entertained in future for any sanctioned post

against their engagement. The service of the petitioners was however

extended and the same remained valid till 31st March, 2020. After the

expiry of the aforesaid contractual period the Municipality did not

extend their service contract. The petitioners are aggrieved by the same.

The petitioners rely upon a departmental order issued by the

Ministry of Labour and Employment, New Delhi dated 20th March, 2020

wherein the Chief Secretaries of all the State Governments have been

advised that in the backdrop of the challenging situation faced due to

outbreak of Covid-19, all the employers of public/private establishments

may be advised to extend their coordination by not terminating their

employees, particularly casual and contractual workers from job or

reduce their wages. In the said advisory it was mentioned that the

termination of employee from the job in such a scenario would deepen

the crisis and will not only weaken the financial condition of the

employee but also destroy their moral to combat with the pandemic.

The petitioners submit that the Municipality ought to have acted

in accordance with the advice given by the Central Government and

ought to have permitted the petitioners to continue with their service.

It has been submitted that no reason whatsoever has been put

forth by the Municipality for not extending the service contract of the

petitioners. There is no grievance and/or allegation against the

petitioners with regard to their performance. According to the petitioners

as there is a need in the Municipality the petitioners ought not to have

been terminated and they ought to have been permitted to continue with

their service.

It has been contended that terminating the service of the

petitioners in the midst of a crisis caused by the pandemic is against

public policy.

It is also the case of the petitioners that the action of the

Municipality in terminating their service is contrary to provision of

Section 23 of the Indian Contract Act, 1872.

The petitioners submit that the Municipality has engaged other

persons in the same post in which the petitioners were serving. The

Municipality ought not to have replaced the petitioners by engaging

another set of contractual employees. According to the petitioners the

same is impermissible in view of the judgment delivered by the Hon'ble

Supreme Court in the matter of Hargurpratap Singh -vs- State of

Punjab & Ors. reported in (2007) 3 SCC 292 where the court directed

the ad hoc employees to continue in service till regular appointments are

made on minimum of the pay scale.

The petitioners also rely upon the decision delivered by a Learned

Single Judge of this Court in the matter of Manas Mondal -vs- State of

West Bengal & Ors. reported in (2009) 4 CLT 631 (HC) wherein the

Court was deciding the issue as to whether the discharge of the

petitioners by the respondent authority without assigning any reason

was proper or not. The Court directed the authority to consider the case

of the petitioner by giving him a hearing and to pass a reasoned order

which should necessarily include adequate reason to explain why he

was discharged and how his case for re-absorption has been considered.

The petitioners argue that as they were in continuous service for a

considerable period of time they ought not to have been terminated

during the Covid period without any just and sufficient cause.

The petitioners rely upon the celebrated judgment delivered by the

Hon'ble Supreme Court in the matter of Central Inland Water

Transport Corporation Limited & Anr. -vs- Brojonath Ganguly &

Anr. reported in AIR 1986 SC 1571 paragraphs 93-101.

The petitioners pray for a direction upon the Municipality to set

aside and/or quash the order dated 15th June, 2020 terminating their

service and further commanding the respondents to continue their

engagement with all benefits and to absorb and regularise them in the

post as permanent employees.

Per contra, the learned advocate representing the Municipality

submits that the engagement of the petitioners was purely temporary

and contractual. The engagement was project based. The project in

which the petitioners were engaged came to a close on 31st March, 2017.

The petitioners were thereafter engaged in a separate project of the State

Government for a temporary period of six months only which was

thereafter extended and the same was valid till 31st March, 2020.

As the per the decision taken by the Municipality on 27th April,

2019 the engagement of the petitioners was extended for a period of

eleven months from May, 2019 to 31st March, 2020. The engagement

was made under the Scheme "House For All" and the monthly

honourarium of the petitioners was paid from the fund of the "House For

All" scheme.

The Joint Secretary, Urban Development and Municipal Affairs

Department and Additional Mission Director (Housing), State Urban

Development Agency by a communication dated 28th November, 2019

intimated the Municipality that as member of the City Level Technical

Cell of PMAY-HFA (U), one civil engineer has been selected and engaged

by M/s. Mars Engineering Services Pvt. Ltd., the outsourcing agency

responsible for the deployment of City Level Technical Cell members.

The said person has been placed at the Urban Local Bodies to supervise

and monitor all PMAY-HFA (U) along with ODF activities at the Urban

Local Bodies. Remuneration of the City Level Technical Cell members

will be paid by the outsourcing agency on receipt of a record of

attendance checked in accordance with the attendance register available

at the Urban Local Bodies. The aforesaid outsourcing agency that is

M/s. Mars Engineering Services Pvt. Ltd. by a letter of engagement

dated 30th November, 2019 engaged one Mr. Rahul Dev Bose as the

Municipal Civil Engineer in the Gayeshpur Municipality.

The Municipality thereafter in their Board meeting held on 29th

February, 2020 took a decision to engage regular employee in the post of

Sub-Assistant Engineer. However as a temporary measure two Sub-

Assistant Engineers have been engaged on contract basis for a period of

six months only at a monthly honourarium of Rs.12,000/- only. The

respondents submit that the aforesaid two persons have been paid from

the general fund of the Municipality.

The respondents categorically submit that they have not

terminated the service of the petitioners. The service of the petitioners

automatically came to an end on the date of expiry of their contract. As

the work which the petitioners were performing was a project based

work and the project came to an end, accordingly there is no scope to

accommodate the petitioners. It has been contended that the work

which the petitioners was performing has been taken over by the

outsourcing agency and the Municipality does not have any fund from

which the payment can be made in favour of the petitioners. It has been

submitted that the petitioners being contractual employees cannot pray

for regularisation/absorption in service as the same will be contrary to

the terms and conditions of their letter of engagement. The respondents

pray for dismissal of the writ petition.

I have heard and considered the submissions made on behalf of

both the parties.

All along the contention of the petitioners is that their services

have been terminated. The same is not correct. Fact remains that the

petitioners were contractual employees of the Gayeshpur Municipality.

They were engaged in respect of a project which came to an end on 31st

March, 2017. The petitioners were thereafter engaged in a separate

project "House For All" and were paid honourarium from the said

project. The work of supervision of the said project has since been

outsourced by the State Urban Development Agency and one M/s. Mars

Engineering Services Pvt. Ltd. an outsourcing agency has been engaged

for engagement of suitable candidates for the purpose of supervision

and monitoring of all PMAY-HFA (U) activities. Once the work which was

performed by the petitioners has been outsourced to a private agency,

and another candidate has been engaged by the said agency to look

after the works of the project, the actual need of the petitioners came to

an end. As the services of the petitioners were no longer required, the

Municipality thought it fit not to extend their service contract.

The service contract of the petitioners automatically came to an

end on 31st March, 2020. The service of the petitioners was never

terminated. The Municipality is not bound to offer an explanation as to

why the services of the petitioners have not been renewed further. The

petitioners were all along contractual employees. They were all along

aware that their service contract is valid so long as the project remains

in operation. The moment the project came to an end the service

contract of the petitioners automatically ended.

The Municipality thereafter re-engaged the petitioners in a

separate project. The outsourcing agency engaged a separate person to

supervise and monitor the PMAY activities in November, 2019 but as the

service contract of the petitioners was valid till 31st March, 2020 the

Municipality thought it fit not to terminate the contract of the

petitioners, midway. The Municipality permitted the contract to end in

its usual course.

The petitioners have tried to convince the Court that after the end

of the previous project in 2017 they were engaged by the Municipality to

look after the works of the Municipal Engineering Department or as

assigned by the Municipal Authority time to time. According to the

petitioners the same is not a time bound project and as long as there is

a need in the Municipality the service of the petitioners ought not to

have been terminated.

Not extending a service contract is quite different from terminating

a service contract. An employer is well within his rights to extend the

service contract of a contractual employee as long as his services are

required by the employer. Only because of the reason that the project in

which they were engaged continued for several years, the petitioners

cannot claim regularisation/absorption in regular service. The same is

not permissible in law. It is contrary to the principles of Articles 14 and

16 of the Constitution of India. Admittedly, the petitioners were

contractual employees, engaged in project based schemes, for a

particular period of time. Continuity in service for a long period does not

change the status of the petitioners. They remain to be tenure based

contractual employees.

The decision relied by the petitioners in the case of Brojonath

Ganguly (supra) will, in my opinion, not be applicable in the facts and

circumstances of the instant case. In the case of Brojonath Ganguly the

Court was considering the case of the employees whose services were

terminated by the employer. In the instant case the service of the

petitioners has not been terminated by the employer. The Court in

Brojonath Ganguly categorically held that the action of the State must

be in conformity with Article 14 of the Constitution. In the instant case

absorbing/regularising the service of the petitioners will tantamount to

violation of the principles enunciated under Article 14 of the

Constitution.

The Hon'ble Supreme Court in the matter of Hargurpratap Singh

(supra) was dealing with a case where the appellant was under the

threat of termination of service. The same is not the fact in the instant

case. Here the service of the petitioners has not been terminated to

accommodate any other person. Accordingly, the ratio of the said case

will not be applicable in the instant case.

In the case of Manas Mandal (supra) a casual worker was removed

from service without any reason. The court directed the employer to

consider his case by giving him a hearing and to pass a reasoned order.

The court further recorded that the casual workers don't ordinarily have

any right to permanent employment. The aforesaid case is also

distinguishable on facts. The petitioners herein have neither been

removed nor terminated from service. Their contract came to an end due

to lapse of time.

The submission of the petitioners that the agreement entered into

by the petitioners and the Municipality is contrary to the provision of

Section 23 of the Indian Contract Act, 1872 also cannot be accepted.

Section 23 of the Indian Contract Act reads as follows:

"23. What considerations and objects are lawful, and what not: The consideration or object of an agreement is lawful, unless -----

it is forbidden by law; or

is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or

involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."

It implies that if the agreement entered into between the parties

are forbidden by law or is of such a nature that would defeat the

provision of any law or the object or consideration of the agreement is

unlawful then the said agreement is void. It also implies that any

agreement which is opposed to public policy is unlawful.

In the instant case agreement was entered into by and between

the petitioners and the Municipality with regard to their service. The

agreement was time bound. The same does not appear to be unlawful or

illegal. Contractual service agreements are very well recognized and

widely accepted in service jurisprudence. There is nothing illegal or

unlawful about it. The petitioners, with eyes wide open, entered into

agreement with the Municipality. They were well aware that the

agreement will come to an end at some point of time. Fact remains that

the project in which the petitioners was serving fortunately continued

for a pretty long time. That does not mean that the project will continue

for infinity. The petitioners were in service as long as the project was in

operation. After the closure of the project the Municipality

accommodated the petitioners in a separate project of the State

government. The honourarium of the petitioners was paid from the fund

of the said project. The Government took a decision to outsource the

work, which the petitioners was performing, to an outsourcing agency,

which in turn employed a different person for performing the work and

the remuneration/honourarium for the said work is borne by the said

outsourcing agency.

It is not the case of the petitioners that the outsourcing agency

ought to have engaged them in service instead of engaging a separate

candidate of their choice. The petitioners have also not made any

allegation against any private individual. The new incumbent has also

not been impleaded as party respondent in the instant writ petition.

The primary contention of the petitioners is that their service

ought not to have been terminated during the Covid period, more so, in

view of the advisory issued by the Central Government in this regard.

The tenure of the petitioners ended in usual course, the end date

incidentally fell within the pandemic period. The same however does not

have any relationship with the pandemic. It was a mere coincidence that

the pandemic struck in March, 2020 and the date of expiry of the

agreement of the petitioners incidentally happened to be 31st March,

2020. Irrespective of the fact whether there would have been a pandemic

or not the tenure of the petitioners would have come to a natural close

on 31st March, 2020. The advisory of the Central government does not

have any manner of application in the instant case.

A writ of mandamus ought not to be issued upon the employer for

extension of the service period of contractual employees. It is for the

employer to assess whether the service of the employee is required or

not. The source of funds for remunerating the employee has also to be

taken into consideration. Previously the petitioners were paid from the

fund of the project. The project being outsourced the Municipality does

not have a separate fund for making payment to the petitioners. The fact

of engagement of two other employees in the post of Sub-Assistant

Engineer, on contractual basis, at a lower honourarium, than that of the

petitioners will also not help the case of the petitioners.

A writ of mandamus may be issued only when there is an

infringement either in the statutory right or the fundamental right as

enshrined in the Constitution of India. In the case at hand neither the

statutory right nor the fundamental right of the petitioners has been

infringed by the employer by not extending their service contract.

The Supreme Court in the case of State of Orissa vs. Chandra

Shekhar Mishra reported in (2002)2 SCC 583 held that there was no

compulsion on the petitioner to enter into the contract he did. He was

free under the law to accept or reject the offer. It was further held that

the State can enter into contracts of temporary employment and impose

special terms in each case, provided they are not inconsistent with the

Constitution and those who choose to accept those terms and enter into

the contract they are bound by them.

In Gridco Ltd. & Anr. Vs. Sadananda Dolui & Ors. reported in

AIR 2012 SC 729 the Court held that so long as the action taken by the

authority is not shown to be vitiated by infirmities and so long as the

action is not demonstrably in outrageous defiance of logic, the writ court

would do well to respect the decision under challenge. It held that

renewal of contract of employment depended upon perception of

management as to usefulness of respondent and need for an incumbent

in position held by him. It has to be kept in mind that modern

commercial world executive is engaged on account of their expertise in a

particular field and those who are so employed are free to be asked to

leave by the employer. Contractual appointments work only if the same

are mutually beneficial to both the contracting parties and not

otherwise.

In view of the above no relief can be granted to the petitioners in

the instant case. The writ petitions fail and are hereby dismissed.

However, as the petitioners were serving in the Municipality for a

considerable period of time and may feel a pinch in their pockets as they

have been left jobless at present, the Municipality may consider the

possibility of engaging them in any suitable work, if available. This will

however not be treated as a mandate upon the Municipality to provide

employment to the petitioner, neither will this give any right to the

petitioners to seek employment in the Municipality.

WPA No. 6365 of 2020 and WPA No. 6366 of 2020 are dismissed.

All connected applications are disposed.

Urgent certified photocopy of this judgment, if applied for, be

supplied to the parties or their advocates on record expeditiously on

compliance of usual legal formalities.

(Amrita Sinha, J.)