Madras High Court
S.Suresh Jothi Kumar vs The Director Of Public Health And ... on 24 August, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
Order dated : 24.08.2022
Writ Petition No.13195 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Writ Petition No.13195 of 2015
and
M.P.Nos.1 & 2 of 2015
S.Suresh Jothi Kumar ... Petitioner
Vs.
1.The Director of Public Health and Preventive
Medicine, DMS Campus,
Chennai - 600 006.
2.The Deputy Director (State Public Health Laboratory),
Office of Director of Public Health and Preventive
Medicine, DMS Campus,
Chennai - 600 006. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records and
quash the impugned order issued by the first respondent bearing reference
Proc.No.016823/IDSP/2015 dated 09.04.2015 (signed on 20.04.2015) and
consequently, direct the respondents 1 and 2 to retain the petitioner as the
Micro Biologist in their Department, pay him all the monetary and other service
benefits, which he would have drawn had the impugned order not been passed.
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Order dated : 24.08.2022
Writ Petition No.13195 of 2015
For Petitioner : Mr.K.Srinivasa Murthy
for M/s.Row and Reddy
For Respondents : Mr.L.S.M.Hasan Fizal
Additional Government Pleader
*****
ORDER
The order of termination terminating the contract services of the petitioner under Integrated Disease Surveillance Project on consolidated pay is under challenge in the present writ petition.
2. The petitioner states that he acquired M.Sc. Microbiology from Madras University. He registered his name in the employment exchange on 23.05.2007 and subsequently, his name was sponsored by the employment exchange for appointment to the post of Microbiologist in the respondent department. The respondents established microbiology in their District Laboratory for investigation and surveillance on diseases like dengue and other communicable diseases in the State of Tamil Nadu. The petitioner was admittedly appointed on contract basis and he signed the agreement dated 23.02.2011. The period of contract was one year and periodically, the contract was renewed on expiry of one year. At the request of the petitioner, his services https://www.mhc.tn.gov.in/judis 2/8 Order dated : 24.08.2022 Writ Petition No.13195 of 2015 were not terminated at the end of 12 months and he was allowed to continue and the consolidated salary was increased to all such contract employees. While so, the petitioner was served with the impugned order terminating his services without any show cause notice or affording any opportunity. The order impugned states that he has failed to carry out the duties specified.
3. Learned counsel appearing on behalf of the petitioner submits that it is a stigma attached and no show cause notice was issued to the petitioner nor he was provided with an opportunity to defend the allegations regarding his alleged failure to carry out any of the duties. When there is no allegation set out regarding the failure of the petitioner, then there is no reason to terminate the services of the petitioner. Thus, the impugned order is liable to be set aside.
4. Learned Additional Government Pleader appearing on behalf of the respondent submits that as per Clause 7 of the Contract Service Agreement entered into between the petitioner and the department in case of improper conduct and/or unsatisfactory performance/insubordination and or misbehaviour by the signatory, having regard in particular to the terms and conditions of the agreement and also the guidelines/directives issued from time https://www.mhc.tn.gov.in/judis 3/8 Order dated : 24.08.2022 Writ Petition No.13195 of 2015 to time, the department shall terminate the contractual appointment without any notice.
5. Though the aforesaid clause stipulates that on unsatisfactory performance, the contract can be terminated without any notice, the order impugned stipulates that there was a failure on the part of the petitioner in carrying out the duties specified. Under those circumstances, at least a notice or memo ought to have been issued to the employee concerned regarding the failure in performing his duties. Even the order impugned is silent about any such failure on the part of the petitioner. If at all any such failure has been specified in the order impugned, then the authority may be right in invoking Clause 7 of the agreement. Such notice is required in order to prevent arbitrary invocation of the termination clause in the contract agreement. Once an employee is appointed on contract basis, in normal circumstances, he must be allowed to work till the expiry period of the contract. In between, if the employee has committed any misconduct or his performance is not to the satisfaction of the authorities concerned then some reasons must be recorded in the order and a blanket order terminating the services cannot be construed as valid with reference to the termination clause in the contract. No doubt, the https://www.mhc.tn.gov.in/judis 4/8 Order dated : 24.08.2022 Writ Petition No.13195 of 2015 authorities are empowered to terminate the services without any notice for unsatisfactory performance.
6. In the present case, the order impugned states that the petitioner has failed to carry out the duties specified. Under those circumstances, what are the duties which were not performed by the petitioner is to be stated, otherwise, the same would result in arbitrary exercise of power by the competent authority.
7. This Court is of the considered opinion that contract appointment admittedly was for a period of one year. Now, by virtue of an interim order, the petitioner was allowed to continue as contract employee. Thus, he must be allowed to continue till the expiry of the period of contract. If at all the services of the petitioner are required, then a fresh agreement is to be entered between the department and the employee concerned. Contract employees have no right to claim regularization but they have got a right to continue till the expiry of the period of contract.
8. In the present case, contract appointments were made under a scheme and for a consolidated pay. Those employees appointed on contract basis under https://www.mhc.tn.gov.in/judis 5/8 Order dated : 24.08.2022 Writ Petition No.13195 of 2015 a project/scheme on consolidated pay cannot seek permanent absorption or regularization. Even to invoke Clause 7 of the agreement i.e. termination, if an employee is to be terminated based on the agreement, reason for such termination is to be furnished to the employee by way of a show cause notice or otherwise. No doubt, in case of improper conduct or misbehaviour, the authority competent is empowered to terminate the contractual services of the employee concerned. While doing so, an employee must be made known about the reason for such termination as in the present case it is stated that the petitioner has failed to carry out his duties specified. Then the authorities may issue a show cause notice what are the duties assigned to the petitioner, how he committed failure in performing his duties and an opportunity, in this regard, is certainly required and in the absence of any such opportunity, there is every possibility that the authorities can arbitrarily exercise the power by invoking Clause 7 of the agreement for termination of such employees. In order to prevent the arbitrary exercise of power by the authorities concerned, such a show cause notice is required, more so, enabling the employee to know about the deficiency or otherwise or provide an opportunity to rectify such failure or otherwise. This being the principles to be followed, this Court is of the opinion that the order impugned is infirm and not in consonance with the terms of https://www.mhc.tn.gov.in/judis 6/8 Order dated : 24.08.2022 Writ Petition No.13195 of 2015 agreement entered into between the department and the petitioner. However, it is made clear that the petitioner cannot seek the benefit of regularization or permanent absorption merely based on his service rendered by virtue of interim order passed by this Court in the present writ petition. Continuous litigation will not provide any right to a person, more so, a contract employment should be rescinded after the expiry of the period of contract or it is to be terminated by following the procedures as contemplated in terms of the agreement and in the event of any such misconduct or otherwise, it is to be communicated to the employee concerned by way of a show cause notice enabling him to submit his explanation. Thus, there is no impediment for the authorities to relieve the petitioner on expiry of the period of contract entered into between the department and the employee.
Accordingly, this Writ Petition is allowed and the order passed by the first respondent bearing reference Proc.No.016823/IDSP/2015 dated 09.04.2015, is quashed. No costs. Consequently, connected miscellaneous petitions are closed.
24.08.2022 Index : Yes Speaking order gm https://www.mhc.tn.gov.in/judis 7/8 Order dated : 24.08.2022 Writ Petition No.13195 of 2015 S.M.SUBRAMANIAM., J gm To
1.The Director of Public Health and Preventive Medicine, DMS Campus, Chennai - 600 006.
2.The Deputy Director (State Public Health Laboratory), Office of Director of Public Health and Preventive Medicine, DMS Campus, Chennai - 600 006.
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