Jharkhand High Court

Gautam Kumar vs Jharkhand State Food & Civil ... on 24 June, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2389 of 2020

Gautam Kumar, son of Sri Jai Jai Ram Mahto, resident of Prabhu Complex,
Balihar Road, P.O. - Ranchi University, P.O. - Bariatu, District - Ranchi
... PETITIONER
Vs.
1. Jharkhand State Food & Civil Supplies Corporation Ltd. through its
Managing Director, having its office at JSFC Bhawan, Kadru Main Road,
P.O. - Argora, P.S. - Doranda, District - Ranchi
2. District Manager, Jharkhand State Food & Civil Supplies Corporation
Ltd., Ranchi, having its office at Collectorate Building, Kutchery Road,
P.O. - GPO, P.S. - Kotwali, District - Ranchi
... ... RESPONDENTS

CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through : Video Conferencing)

For the Petitioner : Mr. Rahul Kumar, Advocate
For the Respondents : Dr. Ashok Kumar Singh, Advocate

05/24.06.2021 In view of outbreak of COVID-19 pandemic, case has been taken
up through Video Conferencing and heard at length. Concerned lawyers
have no objection with regard to the proceeding which has been held
through Video Conferencing and there is no complaint in respect to audio
and video clarity and quality and after hearing at length, the matter is being
disposed of finally.
2. Petitioner has approached this Court with a prayer for quashing of
Letter No. 561, dated 16.05.2019, issued by the Managing Director,
Jharkhand State Food & Civil Corporation Ltd., Ranchi whereby and
whereunder he has been terminated from the services on administrative
grounds without assigning any reason. Petitioner has further prayed for a
direction upon the respondents to regularize his services to the post of
Computer Operator i.e. the post on which petitioner was serving on the date
of termination of his services and to pay all consequential benefits.

3. Heard learned counsel for the parties.

4. Facts

of the case in brief as has been delineated in the writ petition is that in the year 2013, an advertisement was published by the Jharkhand State Food & Civil Supplies Corporation Ltd. for engagement of ten

Computer Operators and Ten Accountants for ten different district offices and one Accountant for its Headquarter on contract basis against the vacant and sanctioned posts on the basis of walk-in-interview, after following roster policy of the State Government. Petitioner also applied for his appointment to the post of Computer Operator. After being found successful in interview, offer of appointment vide letter no. 012/632, dated 23.08.2013 was issued to the petitioner and appointment of the petitioner commenced from 05.09.2013. Clause-(vii) of the said offer of appointment stipulates that appointment of a candidate could be terminated at the discretion of the Corporation/ Managing Director on one month's notice at any stage. After his appointment, petitioner was posted at JSFC Headquarters, Ranchi vide office order issued vide Memo No. 778, dated 07.09.2013. Subsequently, pursuant to the memo no. 929, dated 16.11.2018, petitioner was relieved from the Headquarter in order to enable him to join in the office of District Manager, JSFC, Ranchi. Petitioner was assigned various important works. However, pursuant to issuance of memo no. 561, dated 16.05.2019, merely by two line cryptic order, services of the petitioner was terminated with immediate effect. Thereafter, petitioner filed representation before the respondents to reconsider his case but to no effect. Being aggrieved, petitioner has knocked door of this Court.

5. Mr. Rahul Kumar learned counsel appearing for the petitioner throwing challenge to the impugned order submits that the impugned order dated 16.05.2019 is not tenable in the eyes of law on the ground that even if appointment of the petitioner is on contract basis as per their own offer of appointment, petitioner is entitled for one month's notice or deposit of equivalent sum of remuneration before putting the services to an end. Learned counsel further argues that similarly situated persons who were appointed along with petitioner, are still on the roll of the Corporation and no order has been passed in their cases. Learned counsel strenuously urges that nothing has been brought on record and no whisper is there in the impugned order as to what is the reason for terminating the petitioner and as such impugned order is fit to be quashed and set aside on the ground that when services of an employees, though on contract basis, is put to an end, he is entitled for at least show-cause notice. However, without following

principles of natural justice and without following procedures, his services has been put to an end.

Learned counsel submits that petitioner was a sincere employee and was discharging his duties diligently and there was no complaint against him from any quarter. Learned counsel places heavy reliance on the Constitutional Bench Judgment passed in the case of Sirsi Municipality by its President Sirsi Vs. Cecelia Kom Francis Tellis reported in (1973) 1 SCC 409.

6. Per contra counter affidavit has been filed.

7. Dr. Ashok Kumar Singh, learned counsel appearing for the JSFC Ltd. vehemently opposes contention of Mr. Rahul Kumar and submits that petitioner, a contractual employee, has no right similar to that of a regular employee. The issue to be decided by this Court is whether services of the petitioner who is a contractual employee, can be dispensed with and their contract can come to an end. Learned counsel further argues that as contract of the petitioner has come to an end and by impugned order no stigma or any punitive action has been taken, the order is fully justified and needs no interference.

8. Be that as it may, from perusal of documents brought on record and from rival submission of the parties, this Court is of the view that writ petition warrants interference for the following facts and reasons:

(i) It appears from the impugned order that no show-cause notice has ever been given to the petitioner nor any enquiry has been conducted;

(ii) The impugned order is non-speaking, cryptic and capricious. Even services of contractual employees can be put to an end only by issuing a show-cause notice. Without following cardinal principles of natural justice, livelihood of a person cannot be snatched. In the instant case, petitioner was never subjected to show-cause notice.

(iii) It has fairly been accepted by respondents that no show-cause notice was ever served to the petitioner nor Clause - (vii) of the offer of appointment was adhered to, which talks as under:

"(vii) Your appointment might get terminated at the discreetness of the Corporation/ Managing Director on one month's notice at any stage and in case of such termination you will have no right for claim against the Corporation."

(iv) No reasons have been assigned in the impugned order. The order passed by the authorities cannot be improved by assigning reasons in the counter affidavit. The impugned order being cryptic, capricious and non-speaking, cannot be improved by the reasons stated in the counter affidavit.

(v) In the celebrated Judgment of the Hon'ble Apex Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner reported in (1978) 1 SCC 405, the Hon'ble Court has held in para-8 as under:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older."

In view of the aforesaid decision also, a non-speaking order remains a non-speaking order, even if reason has been given in the counter affidavit. There is no show-cause notice and no inquiry has been conducted and no opportunity of being heard has been given to the petitioner, what are the complaints and what are the allegations,

was even not known to the petitioner, otherwise, petitioner would have given reply of all those allegations. Without any show-cause notice and without assigning any specific reasons in the impugned order, the services of the petitioner could not have been put to an end.

(vi) The Hon'ble Apex Court, in the case of Sirsi Municipality by its President Vs. Cecelia Kom Francis Tellis reported in (1973) 1 SCC 409 has clearly observed the circumstances in which declaration or reinstatement can be granted and when dismissal is nullity. Para-24 of the said Judgment reads as under:

"24. This Court in S.R. Tewari v. District Board Agra [AIR 1964 SC 1680 : (1964) 3 SCR 55 : (1964) 2 SCJ 300] ; Life Insurance Corporation of India v. Sunil Kumar Mukherjee [AIR 1964 SC 847 : (1964) 5 SCR 528 : (1964) 1 SCJ 272] ; Calcutta Dock Labour Board v. Jaffar Imam [AIR 1966 SC 282 : (1965) 3 SCR 453 : 1966 Cr LJ 189] and Naraindas Barot v. Divisional Controller S.T.C. [AIR 1966 SC 1364 : (1966) 3 SCR 40 : (1967) 2 SCJ 64] dealt with power of statutory authorities and bodies to dismiss servants. These decisions establish that the dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases."

Further, in para-27 thereof, the Hon'ble Court has held as under:

"27. This Court has held in the decisions referred to that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or order is invalid. This Court has quashed the orders of dismissal and granted appropriate declarations."

(vii) Admittedly contractual employee does not have the same right as that of the regular employee but their services cannot be put to an end abruptly and at least they are entitled for a show-cause notice and reasons before their services are put to an end on the ground that their contract has come to an end. The impugned order suffers from aforesaid deficiencies, as observed by Hon'ble Apex Court as well as this Court.

9. In view of aforesaid decision, a non-speaking order remains a non-

speaking order, even if reason is assigned in the counter affidavit. If there is no show-cause notice and no inquiry has been conducted and no opportunity of being heard has been given to the petitioner, what are the complaints and what are the allegations was even not known to the petitioner, otherwise, petitioner would have given reply of all the allegations.

10. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncement, I hereby quash and set aside the impugned Letter No. 561, dated 16.05.2019, issued by the Managing Director, Jharkhand State Food & Civil Corporation Ltd., Ranchi and remit the matter back to the respondents to take a fresh decision in accordance with law following their own rules and guidelines as given in the offer of appointment. Let entire exercise be completed within a period of ten weeks from the date of receipt/ production of a copy of this order.

11. The writ petition stands allowed.

(Dr. S.N. Pathak, J.)