Jharkhand High Court
Md. Rizwan Armi Ali vs The State Of Jharkhand on 26 July, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1952 of 2019
Md. Rizwan Armi Ali ... Petitioner
Vs.
1. The State of Jharkhand
2. Secretary, Department of Industries, Project Bhawan, Dhurwa, Ranchi
3. Managing Director, The Jharkhand Industrial Area Development Authority,
JIADA Bhawan, Namkum Industrial Area, Ranchi
4. Managing Director, The Bokaro Industrial Area Development Authority,
BIADA Bhawan, Balidih, Bokaro
5. Secretary, The Bokaro Industrial Area Development Authority, BIADA
Bhawan, Balidih, Bokaro
6. Regional Director, Jharkhand Industrial Area Development Authority,
Bokaro Region, BIADA Bhawan, Balidih, Bokaro
7. Regional Deputy Director, Jharkhand Industrial Area Development
Authority, Bokaro Region, BIADA Bhawan, Balidih, Bokaro
... Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioners : Ms. Khalida Haya Rashmi, Advocate
For the Respondent Nos. 3 to 7 : Mrs. Richa Sanchita, Advocate
For the Respondent No.1 & 2 : Mrs. Rashmi Lal, AC to AAG
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06/ 26.07.2021 The petitioner has approached this Court with a prayer for quashing
the order of termination dated 27.03.20219 issued by the respondent No.3. Further,
prayer has been made for a direction upon the respondents to reinstate the petitioner
and to pay dues of arrears of salary with interest from April, 2019. Further, prayer has
been made for a direction upon the respondents to give bona fide consideration to the
plea of extension of contractual period, having regard to the good service record of the
petitioner.
2. The case of the petitioner lies in a narrow compass, the respondents
floated an advertisement-cum-notice dated 03.05.2012 vide Memo No.326 for
appointment to various posts on contractual basis and for which interview was to be
held on 16.05.2012. Pursuant to the same the petitioner submitted his application
before the respondent No.4 and also, appeared in the interview. Thereafter, the
respondents vide letter dated 24.05.2012 informed the petitioner that he had been
selected as Industrial Extension (Development) Officer and was called for
verification of documents. It is specific case of the petitioner that after the verification,
the petitioner and the respondents entered into a contract agreement on 01.06.2012
and the petitioner was appointed on the said post. Thereafter, services of the petitioner
were being extended by the respondents every year on applications made by the
petitioner. It is further the case of the petitioner that during the continuance of
petitioner's engagement, the Regional Deputy Director vide Memo No.708 dated
03.04.2018 issued an appreciation letter to the petitioner, expressing his heartiest
appreciation towards the hard-work and dedication of the petitioner and
acknowledging the contributions of the petitioner towards the progress of the
organization. The petitioner was also directed to take over and discharge the functions
of Assistant Development Officer in addition to his own duties vide office order as
contained in Memo No.835, dated 10.05.2018 and further vide office order as
contained in memo No.880 dated 22.05.2018, he was given the responsibility of lease
deed In-charge Officer and in addition to this, vide Memo No.1059 dated 11.07.2018
he was conferred the authority to countersign and attest lease Patta.
3. It is further the case of the petitioner that on 13.06.2018, a proposal
was considered and order was passed by the Regional Director, JIADA, Bokaro Area
vide memo No. 959 that the designation of the petitioner had been wrongfully
mentioned as Industrial Extension (Development) Officer as opposed to Industrial
Extension Officer and the amendment to the post name was made accordingly with
retrospective effect. The petitioner submitted an application for extension of service
period for a further period of one or more years to the Regional Director, BIADA as
the contract was to be ended from 31.03.2019. Pursuant to the same, on 27.03.2019,
the respondents vide Memo No. 222 terminated the contract of the petitioner w.e.f.
31.03.2019 on the ground that services of the petitioner is unsatisfactory. Aggrieved
by the same, the petitioner has been constrained to knock the door of this Court.
4. Ms. Khalida Haya Rashmi, learned counsel for the petitioner assailing
the impugned order on the ground that the same is non-speaking, cryptic and
capricious and argues that without affording any opportunity of hearing and without
issuance of show cause notice, the same has been passed and as such, it is against the
cardinal principles of natural justice. She further argues that the order of termination
casts a stigma upon the petitioner whereby affecting his future prospects of
employment. The extensions to services were granted every year from 2012 to 2018
on the grounds of satisfactory and appreciable work of the petitioner and all of sudden
in the year, 2019, the extension was denied for unsatisfactory services contradictory to
the respondents' own appreciation letter. The petitioner is now aged about 35 years
and is overage for fresh employment anywhere else meaning thereby the petitioner
has suffered irreparable loss and his entire career has been demolished without
assigning any reason by the respondents as the stigmatic order is passed against him,
further casts a burden upon him. She further submits that before passing of the
termination order, a letter/information/show cause has to be served to the employees,
which is settled principles of law. The petitioner has served for 7 consecutive years
regularly with an unblemished service record, wherein the respondents have issued
several letters of appreciation for his hard work and dedication. As per Clause 4 B of
the Contract, the respondents are required to serve a month notice to the petitioner to
end the contract between them, which has not been done in the instant case. To
buttress her argument, learned counsel for the petitioner places heavy reliance on the
celebrated judgment of Hon'ble Apex Court passed in case of Shrilekha Vidyarthi
Vs. State of U.P. & Ors., reported in (1991) 1 SCC 212 wherein the Hon'ble Apex
Court has held that even in the case of contractual employee, the State has no right to
act whimsically and arbitrarily.
5. Per contra counter-affidavit has been filed.
6. Mrs. Richa Sanchita, learned counsel for the respondents vehemently
opposes the contention of the learned counsel for the petitioner and submits that since
the petitioner was appointed on contract basis for only one year and taking a lenient
view the respondents have renewed the contract for 7 years and it is open for the
respondent to remove the petitioner from the services as his performance was not up
to the mark. She further submits that impugned order is not a termination order and as
such, principles of natural justice cannot be attracted in this case. The contract of the
petitioner has come to end on 31.03.2019 and the respondents have decided not to
extend his contract period by the impugned order as the work of the petitioner was not
satisfactorily. The respondents have received several complaint against the petitioner
regarding practice of unfair means along with other irregularities. She further submits
that no appreciation letter for the petitioner has been issued by the respondents and as
such, appreciation letter annexed by the petitioner is forged and fabricated. The
Competent Authority rightfully did not extend the contract period of the petitioner and
as such, there is no illegality or infirmity in the impugned order.
7. Be that as it may, having gone through the rival submissions of the
parties and on perusal of the records, it appears that impugned order is non-speaking
order, cryptic and capricious and the same is stigmatic as the respondents have
appraised the performance of the petitioner. In the impugned order, there is no reason
assigned save and except, unsatisfactory service, whereas in the counter-affidavit
several allegations were levelled against the petitioner. Law is well settled that what
is not in the impugned order, cannot be brought on record, by way of counter-
affidavit. The impugned order cannot be improved by way of counter-affidavit. The
said proposition of law has been held in case of Commissioner of Police, Bombay
Vs. Gordhandas Bhanji, AIR 1952 SC 16, which has been reiterated in case of
Mohinder Singh Gill & Anr. Vs. the Chief Election Commissioner, New Delhi &
Ors. reported in 1978 Volume 1 SCC, 405.
8. Further, as per the Contract of Agreement, respondents are required to
serve a month notice to the petitioner, which has not been done in the instant case. It
also appears that without affording any opportunity of hearing and without issuance of
show cause notice, the impugned order has been passed and as such, it is against the
cardinal principles of natural justice. In the matter of contractual appointment, if the
order is stigmatic then an opportunity of hearing ought to have been given by the
respondents to the petitioner. The Hon'ble Apex Court in case of " ABL International
Ltd. and Another vrs. Export Credit Guarantee Corporation of India Ltd. and
Others", reported in (2004) 3 SCC 553 has held as under:-
"23. It is clear from the above observations of this Court, once the
State or an instrumentality of the State is a party of the contract, it
has an obligation in law to act fairly, justly and reasonably which is
the requirement of Article 14 of the Constitution of India......"
9. The contention of the learned counsel for the petitioner is that before
passing of the impugned order, no opportunity of hearing was given to the petitioner
neither show cause notice has been issued, is fit to be accepted. It is well settled law
that principle of natural justice is like a brooding omnipresence which prevails
everywhere. The same is engrained under Article 14 of the Constitution of India. A
person who was going to lose his service, which had a civil consequence on his life,
was required to be given an opportunity of hearing and for that reason if that
opportunity would have been given to him, he could have raised all such pleas which
were available to him. Had that opportunity of hearing been given to him that would
have brought the entire matter to the notice of the authorities for consideration and
taking an appropriate decision in accordance with law. This Court is of the view that
an opportunity of hearing was required to be given to the petitioner prior to passing of
the order of termination of his service.
10. In view of the aforesaid discussion, the impugned order dated
27.03.2019 is liable to be quashed and set aside and as such, is hereby quashed and set
aside. The writ petition is allowed on the solitary ground of violation of principle of
natural justice leaving it open for the respondents to proceed afresh, if so advised,
after adhering to the provisions of natural justice.
11. As a consequence of the quashment of the impugned order, the
petitioner shall be reinstated in service, however, consequential benefits shall depend
on the final outcome and decision taken after giving full opportunity of hearing to the
petitioner.
12. Resultantly, writ petition stands allowed.
(Dr. S.N. Pathak, J.)
punit/-
