Full Text
HIGH COURT OF DELHI
Date of Decision: 29th November, 2022
SANDEEP THAKUR ..... Petitioner
Through: Mr. Anshuman and Mr. Karan Sharma, Advocates.
Through: Ms. Avnish Ahlawat, Standing Counsel with Mr. N.K. Singh, Ms. Palak Rohmetra, Ms. Laavanya Kaushik and
Ms. Aliza Alam, Advocates for R-1.
Mr. Tushar Sannu, Standing Counsel with Ms. Shelly Khanna, Advocate with Mr. R.S.
Saini, AAO from IHBAS/R-2.
JUDGMENT
1. Present writ petition has been filed by the Petitioner for setting aside/quashing the impugned advertisement/recruitment notice dated 13.07.2019 as well as for a direction to Respondent No. 2/IHBAS not to terminate the services of the Petitioner by replacing him with another contractual employee.
2. The factual score, shorn of unnecessary details and relevant for adjudication of the issues that pronouncedly emanate in the present writ petition is that Respondent No. 2 issued an advertisement dated 20.01.2013, calling candidates for walk-in interview, in order to fill up various posts, including one post of Junior Engineer (Electrical).
3. On 30.01.2013, Petitioner applied for the post of Junior Engineer (Electrical) and was offered appointment on 07.06.2013, purely on contractual basis.
4. Petitioner joined on 11.06.2013 and subsequently on 06.07.2013 an Office Order was issued by Respondent No. 2, confirming that the appointment of the Petitioner was contractual and for a period from 11.06.2013 to 10.05.2014. The contract was thereafter extended from time to time, with the last extension ending on 09.09.2019.
5. The trigger for filing the present writ petition was the impugned advertisement dated 13.07.2019, whereby Respondent No. 2 called candidates for ‘skill test’ in order to fill up posts in the Engineering Wing viz. two posts of Junior Engineer (Civil) and two posts of Junior Engineer (Electrical). Fearing that the appointment of the Petitioner would be terminated/not-renewed, on account of initiation of a fresh process of appointment and that the Petitioner would be replaced with another contract employee, Petitioner approached this Court and filed the present writ petition.
6. Vide order dated 24.07.2019, operation of the impugned advertisement, to the extent of replacing the Petitioner with another contractual employee, was stayed by the Court. It is an undisputed fact that Petitioner is continuing to work with the Department till date, albeit under the cover of interim order dated 24.07.2019.
7. The primordial grievance of the Petitioner in the present writ petition, articulated by the learned counsel is that, Petitioner was appointed as a contract employee and cannot be replaced by another contract employee, following the law, authoritatively settled by the Constitution Bench of the Supreme Court in State of Haryana and Others v. Piara Singh and Others, (1992) 4 SCC 118. Reliance is also placed on a recent judgment in Manish Gupta and Another v. President, Jan Bhagidari Samiti and Others, 2022 SCC OnLine SC 485, to assert that Petitioner can only be replaced when regular appointment is made to the post in question.
8. Another contention raised on behalf of the Petitioner is that services of the Petitioner cannot be terminated/discontinued, without holding an inquiry into the alleged misconduct or issuing a showcause notice, giving an opportunity to the Petitioner, to establish and/or explain that the allegations are false and baseless. During the course of arguments, learned counsel has handed over an Advisory issued on 27.06.2022, pursuant to a report of a Preliminary Fact Finding Committee, constituted by the Department and relying on the said document, it is urged that since nothing adverse or incriminating has been found against the Petitioner, his contract deserves to be renewed, till the post is filled by a regular employee.
9. Per contra, stand of Respondent No. 2, as captured in the counter affidavit as well as in the application for vacation of stay, being C.M. No. 32024/2020, is that several complaints were received against the Petitioner from the various Doctors, regarding his poor performance, which have been concealed by the Petitioner. Deputy Medical Superintendent, IHBAS has reported that the performance of Petitioner was below satisfactory, for the year 2017 to October, 2018.
10. It is stated that Petitioner is guilty of dereliction of duty/work, gross negligence, poor performance and conduct in the office, on account of which a policy decision was taken by Respondent No. 2 to initiate fresh recruitment process for filling up the posts of Junior Engineer (Electrical) and (Civil) and, therefore, in order to streamline the functioning of the Institute, impugned advertisement was issued.
11. It is further stated that while working as In-charge of stores, wherein iron/electrical scrap materials/articles of Respondent No. 2 were stored, Petitioner misused his position and caused severe financial loss to the Institute. A complaint dated 16.05.2019 was submitted to the Director of Respondent No. 2, by Officiating Executive Engineer (E) of Respondent No. 2, regarding pilferage by the Petitioner, during April, 2018 to October, 2018. The complaint also brought to light a deep-rooted conspiracy behind the pilferage and the fact that Petitioner was acting in connivance with one Sh. Bura Khan and a helper (outsourced labor) as well as some unknown persons. Consequently, a written complaint dated 05.02.2020 was filed at the Police Station, GTB Enclave, which culminated into registration of an FIR on 08.07.2020, against the Petitioner and a few others. Looking at the seriousness and gravity of the complaints and the alleged incidents, Director of Respondent No. 2 constituted a Committee on 05.07.2019, to inspect all Staff Quarters and the inspection led to discovery of more acts of gross negligence on part of the Petitioner.
12. It is thus canvassed by Mr. Tushar Sannu, learned Standing Counsel appearing on behalf of Respondent No. 2 that it is not in the interest of the Institute to extend the contract of employment of the Petitioner, which expired on 09.09.2019. In any event, clause (viii) of the Memorandum dated 07.06.2013, whereby Petitioner was appointed, provides that the services of the Petitioner are liable to be terminated in the event of breach of contract, misconduct, dereliction of duties, etc., without assigning any reason. In view of the misconduct of the Petitioner and seriousness of allegations levelled against him, services of the Petitioner are required to be dispensed with and the judgments relied upon, laying down the law that a contract employee cannot be replaced by another contract employee, cannot come to his rescue.
13. I have heard the learned counsels for the parties and considered their rival submissions.
14. Indisputably, Petitioner was appointed as a contractual employee in June, 2013, initially for a period of one year, from 11.06.2013 to 10.05.2014. The contract was thereafter extended from time to time, till Respondent No. 2 issued the impugned advertisement dated 13.07.2019, calling applications for filling up the posts of Junior Engineer (Civil) and Junior Engineer (Electrical). Apprehending that Petitioner’s contract would not be renewed, Petitioner approached this Court and vide order dated 24.07.2019, Court protected the Petitioner by directing that operation of the impugned advertisement would remain stayed to the extent of replacing the Petitioner with another contract employee.
15. There cannot be a debate on the exposition of law, propounded by the Supreme Court that a contract employee cannot be replaced by another contract employee, which is a binding and enduring dicta. [Ref: State of Haryana and Others (supra) and Manish Gupta and Another (supra)]. However, the vexed question that arises is whether this time-honoured principle would shield an employee who is found to indulge in pilferage and is grossly negligent in discharge of his duties, besides unsatisfactory performance.
16. In the present case, the counter-affidavit filed by Respondent No. 2 as well as the application for vacation of stay order are replete with allegations against the Petitioner relating to his conduct, poor performance and undesirable activities, supported by documents. As noted above, it is stated that several complaints were received against the Petitioner from Doctors regarding dereliction of duty, gross negligence, poor performance, on various occasions. The performance report for the period 2017 to October, 2018 is ‘below satisfactory’. Apart from this, it is also brought out that the Petitioner being Incharge of stores, wherein various articles and scrap materials were stored, has misused his position and caused severe financial loss. A complaint was submitted regarding pilferage by the Petitioner during April, 2018 to October, 2018, where Petitioner was acting in connivance with others and an FIR has been registered against him and few others. Several other issues of gross negligence have been found during inspection of staff quarters, pertaining to installation of electric meter boxes etc. In view of these allegations, in my view, Respondent No. 2 is justified in taking a conscious decision of not renewing the contract of employment of the Petitioner and advertising a fresh appointment process, albeit on contract basis.
17. Counsel for the Petitioner has, during the course of hearing, handed over an Advisory dated 27.06.2022, which according to him favours the Petitioner and furthers his case. Having perused the ‘Advisory’, this Court finds that the stand of the Petitioner is incorrect. Contrary to what is urged by counsel for the Petitioner, it is stated in the Advisory that the role of the Petitioner is not in accordance with his position and responsibility. As is apparent from the document, the Advisory is issued pursuant to a Report rendered by a Preliminary Fact Finding Committee, constituted to inquire into the irregularities in disposal and outward movement of scrap material from IHBAS. Therefore, this document also does not come to the aid of the Petitioner.
18. Counsel for the Petitioner has strenuously contended that principles of natural justice have been violated, as no show cause notice was given to the Petitioner and/or no inquiry was held to ascertain the veracity of the allegations, giving opportunity to the Petitioner to prove his innocence. Petitioner is, admittedly, a contractual employee and the terms of the Memorandum, whereby Petitioner was appointed, itself provide the mechanism and methodology of terminating the contract of service. In this context, I may allude to clause (viii) of the Memorandum, which is neither disputed nor challenged and is reproduced here for ready reference: “(viii). His services is liable to be terminated in the event of breach of contract, misconduct dereliction of duties or unauthorized absence without assigning any reason.”
19. It is clear that the contract of employment itself envisages and provides for termination of Petitioner’s services ‘without assigning any reason’, if there is a misconduct or dereliction of duty. Petitioner had entered into the contract with open eyes and had accepted all the terms and conditions, on which he has continued to work since the year 2013 and thus, cannot assert that a show cause notice ought to be given. As far as holding a full-fledged departmental inquiry is concerned, which is a procedure followed for a regular employee in case of delinquency, no law or term of the contract has been shown to this Court by the Petitioner, which requires the applicability of this procedure to a contract employee.
20. It has been held in several judgments time and again that if the contract of employment is for a specific term and even if the employee is wrongfully dismissed, the only remedy available to the employee, at the highest, is to sue for damages and no direction can be passed for renewing or extending the contract. [Ref: Vidha Lal v. Kathak Kendra thr. its Director & Anr., 2013 SCC OnLine Del 3078].
21. In view of the above, there is no merit in the writ petition and the same is dismissed along with pending applications.
22. Interim order granted vide order dated 24.07.2019, is hereby vacated.