Himachal Pradesh High Court
State Of Himachal Pradesh Through ... vs State Of Himachal Pradesh on 6 January, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE DAY OF 6th JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE
.
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION NO.1105 OF 2020
Between:-
1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY
(HOME) TO THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171 002.
2. DIRECTOR GENERAL OF PRISONS & CORRECTIONAL
SERVICES, HIMACHAL PRADESH, SHIMLA-171 009.
3. SUPERINTENDENT, MODEL CENTRAL JAIL NAHAN,
DISTRICT SIRMOUR, HIMACHAL PRADESH.
r ...PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE GENERAL, MR. SHIV
PAL MANHANS, MR. HEMANSHU MISRA, MR. VINOD
THAKUR, ADDITIONAL ADVOCATES GENERAL AND MR.
BHUPINDER THAKUR, DEPUTY ADVOCATE GENERAL)
AND
SH. RISHU S/O SH. KARAM CHAND R/O VILLAGE JATEHAR,
POST OFFICE SAKOH, TEHSIL DHARAMSHALA, DISTRICT
KANGRA, HIMACHAL PRADESH.
...RESPONDENT
(BY MR. P.P. CHAUHAN, ADVOCATE FOR THE RESPONDENT).
RESERVED ON :28.12.2021
1
WHETHER APPROVED FOR REPORTING? Yes.
This petition coming on for hearing this day, Hon'ble Mr. Justice
Chander Bhusan Barowalia, passed the following :
ORDER
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
Whether reporters of Local Papers may be allowed to see the judgment ? Yes.
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.
2. 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 1 st 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.
r 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.
3. Feeling aggrieved, the impugned judgment, dated
17.7.2019, passed by the learned erstwhile Administrative Tribunal,
the petitioners maintained the present petition.
4. 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.
5. 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 :
1. 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.
2. 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
3. Babu Lal vs. State of Haryana and others, 1991 (2)
Supreme Court Cases, 335.
6. 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.
7. 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."
8. 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.
9. 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."
10. 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."
11. 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.
12. 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.
13. 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.
14. 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.
( Tarlok Singh Chauhan)
Judge
( Chander Bhusan Barowalia )
Judge
6th January, 2022
(CS)
