Kerala High Court
Resmi.K vs Government Of India on 13 December, 2016
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939
WP(C).No. 41201 of 2016 (A)
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PETITIONER(S):
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1. RESMI.K.,
AGED 36 YEARS, W/O.SUJITH .S.,
WORKING AS "PHARMACIST",
EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS)
POLYCLINIC,THUMPAMON P.O, PATHANAMTHITTA, PIN-689 502,
RESIDING AT 'LOTUS', CHOORAKKODE P.O, ADOOR,
PATHANAMTHITTA DISTRICT.
2. EX.HAVILDAR SOMASEKHARAN PILLAI,
AGED 52 YEARS, S/O.RAGHAVAN PILLAI,
WORKING AS RADIOGRAPHER, EX-SERVICEMEN
CONTRIBUTORY HEALTH SCHEME (ECHS ) POLYCLINIC,
THUMPAMON P.O,PATHANAMTHITTA.
3. EX NAIK SURESH KUMAR.V.,
AGED 47 YEARS, S/O.P.VISWANATHAN,
WORKING AS DENTAL HYGIENIST,
EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS )
POLYCLINIC, THUMPAMON P.O, PATHANAMTHITTA.
BY ADVS.SRI.S.SUBHASH CHAND
SRI.S.JAYAKRISHNAN
SRI.S.PARAMESWARA PRASAD
RESPONDENT(S):
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1. GOVERNMENT OF INDIA,
REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF DEFENCE, NEW DELHI, PIN -110 010.
2. THE STATION COMMANDER, (ECHS),
STATION HEADQUARTERS, PANGODE, THIRUMALA P.O,
THIRUVANANTHAPURAM, PIN -695 006.
3. THE OFFICER IN CHARGE,
EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS),
POLYCLINIC, THUMMPAMON P.O, PATHANAMTHITTA, PIN -689 502.
R1 TO R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SRI.K.R.RAJKUMAR, C.G.C.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-04-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C).No. 41201 of 2016 (A)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE DETAILS OF CONTRACTUAL MANPOWER AT
EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) POLYCLINIC,
PATHANAMTHITTA
P2 TRUE COPY OF THE DETAILS OF THE TENURE OF CONTRACTUAL
EMPLOYEES AT ECHS POLYCLINICS
P3 TRUE COPY OF THE ORDER NO. 445/3/A/ECHS DATED 13.12.2016 ISSUED
BY THE 2ND RESPONDENT TO THE 1ST PETITIONER
P4 TRUE COPY OF THE ORDER NO. 445/3/A/ECHS DATED 13.12.2016 ISSUED
BY THE 2ND RESPONDENT TO THE 2ND PETITIONER
P5 TRUE COPY OF ORDER NO. 445/3/A/ECHS DATED 13.12.2016 ISSUED BY
THE 2ND RESPONDENT TO THE 3RD PETITIONER
P6 TRUE COPY OF MODEL CONTRACTUAL AGREEMENT BETWEEN
CONTRACTUALLY ENGAGED PERSON AND STATION COMMANDER
P7 TRUE COPY OF THE REPRESENTATION DATED 19.12.2016 SUBMITTED BY
THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT
P8 TRUE COPY OF THE REPRESENTATION DATED 19.12.2016 SUBMITTED BY
THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT
P9 TRUE COPY OF THE REPRESENTATION DATED 19.12.2016 SUBMITTED BY
THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT
P10 TRUE COPY OF THE PROCEDURE FOR CONTRACTUAL EMPLOYMENT
DATED 22/9/2003
P11 TRUE COPY OF THE MODEL AGREEMENT
RESPONDENT(S)' EXHIBITS
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R3(A) TRUE PHOTOCOPY OF THE AUDITED STOCK LEDGER OF PC THUMPAMON
R3(B) TRUE PHOTOCOPY OF THE COMPUTER ENTRIES OF THE RELEVANT
ENTRIES
R3(C) TRUE COPY OF THE WRITTEN CAUTION ISSUED TO THE FIRST
PETITIONER BY THE THIRD RESPONDENT DATED 18/7/2016
R3(D) TRUE COPY OF THE SECOND WARNING LETTER ISSUED TO THE FIRST
PETITIONER BY THE THIRD RESPONDENT DATED 27/7/2016
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WP(C).NO.41201/2016
R3(E) TRUE COPY OF THE CAUTION LETTER ISSUED TO THE FIRST PETITIONER
BY THE SECOND RESPONDENT DATED 7/11/2016
R3(F) TRUE COPY OF THE CAUTION LETTER ISSUED TO THE 2ND PETITIONER
BY THE 2ND RESPONDENT DATED 7/11/2016
R3(G) TRUE COPY OF THE CAUTION LETTER ISSUED TO THE 3RD PETITIONER BY
THE 2ND RESPONDENT DATED 7/11/2016
/TRUE COPY/
P.A.TO JUDGE
sts
DEVAN RAMACHANDRAN, J.
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WP(C) No.41201 of 2016
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Dated this the 12th day of April, 2017
JUDGMENT
The petitioners assert to be appointed on contract as Paramedical Staff in the Ex-Servicemen Contributory Health Scheme [ECHS], Polyclinic, Pathanamthitta. They say that they were appointed a few years ago and that they were continued as paramedics by a repeated extension of the contracts year to year. According to them, their contracts were last renewed in the year 2016 and it would conclude only by June or July, 2017. However, while so, Exts. P3 to P5 orders were issued by the Station Commander of the ECHS, the 2nd respondent herein, terminating the contractual employment of the petitioners with effect from 20.01.2017. The petitioners impugn these orders in this writ petition as being illegal and contrary to the terms of WP(C) No.41201 of 2016 2 their contractual engagement.
2. I have heard Sri.S. Subhash Chand, the learned counsel for the petitioners and the learned Central Government Counsel appearing for the respondents.
3. When the impugned orders namely Exts.P3 to P5 are examined, it concedes to no reason at all for termination of the contract of the petitioners, but merely says that the contractual employment is terminated with effect from 20.01.2017. I notice that this Court has not granted any interim order until now to retain the petitioners in service beyond 20.01.2017, but a learned Judge of this Court has ordered that their termination would be subject to the result of this writ petition.
4. The essential claim of the petitioners is that their contract cannot be terminated by the respondents in such an arbitrary manner. According to them, the respondents are governed by Ext.P10 Scheme, under which it is stipulated that disciplinary action will be initiated against a contract employee and his contract terminated only after giving a show-cause notice without prejudice to any further action that may be deemed fit and WP(C) No.41201 of 2016 3 initiated considering the nature of the offence committed. It further provides that the Station Commander will initiate action for termination of contract on recommendation of the Officer-in- charge of the Polyclinic and that a show-cause notice will be given to the employees detailing the nature of offence. The learned counsel for the petitioner argues vehemently that since none of these procedures can be even seen to have been complied with before issuing Exts.P3 to P5 orders, the same are illegal and clearly beyond the competence of the competent Officer under Ext.P10 Scheme.
5. In contrary submissions, the learned Central Government Counsel refers to Ext.P11, which are the terms of the contract entered into by the petitioners with the competent among the respondents. He invites my attention to Clauses 11 & 12 thereof, which say that the ECHS shall have the right to terminate the agreement by giving one month's notice or one month's consideration to the contract employee, but without prejudice to the generality of the right of termination on the grounds shown therein. Clause 12 of Ext.P13 provides that the contract WP(C) No.41201 of 2016 4 employee shall also have the right to terminate the agreement before the expiry of the contract by giving one month's notice or by forgoing one month's contractual amount. He, therefore, says that Exts.P3 to P5 have been issued by the respondents under the prescription of Clauses 11 & 12 of Ext.P11 contract and that it has not been issued on account of any disciplinary action initiated or concluded against the petitioners. He asserts that the respondents have the choice under the contract to either terminate it without assigning any reasons by giving one month's notice or to initiate disciplinary action against the contract employees, if they are found to have committed misconduct. He says that if the latter option is exercised by the respondents, that is to initiate disciplinary action against the employee, then alone they will be hit by the rigor of the procedure for disciplinary action mandated under Ext.P10.
6. I see that a Counter Affidavit has been placed on record on behalf of the respondents by the 3rd respondent. He maintains that the conduct and performance of the petitioners were below par and he has referred to certain instances specifically in the WP(C) No.41201 of 2016 5 Counter Affidavit to show that the petitioners have acted against the interest of the Institution and in violation of the trust reposed on them. However, it is pertinent that these issues have not been referred to or been mentioned about in Exts.P3 to P5. In fact Exts.P3 to P5, as has also been contended by the learned Central Government Counsel, appears to have been issued as a simplicitor termination of the contract without reference to any act of misconduct on the part of the petitioners.
7. An examination of Exts.P10 & P11, makes it ineluctable that both the respondents as well as the petitioners are authorised under the terms of the contract to terminate it by giving one month's notice. This is a privilege given to both sides if, for any reason, they want to terminate the contract without any further consequence. However, the contract also mandates for disciplinary action if it is found requisite by the employer for the reasons of the misconduct enumerated in the contract itself. Obviously, the option to avail of one of the two avenues, either for termination of the contract or initiation of action against the contract employee is vested with the respondents and when they WP(C) No.41201 of 2016 6 choose one course over the other, they cannot be found fault with, since it is their prerogative to elect the course of action that they want to pursue against the employee.
8. In the case at hand, even though I see that Exts.P3 to P5 are merely termination simplicitor without assigning any cause of misconduct against the petitioners, the pleadings of the 3rd respondent would indicate that the petitioners were found to be incompetent and below par. If this be so, it would only have been fair and just that the petitioners be told while such an assessment was made against them. Of course Sri.Rajkumar says that the respondents have chosen to issue Exts.P3 to P5 in the nature of a simplicitor termination only so that there would be no stigma attached to the petitioners when they are terminated from the contract. The learned counsel for the petitioners au contraire asserts that this was not proper, since there being allegations made against his clients, they ought to have been informed of the same and their explanation sought so that they could have explained the circumstances in which they were suspected of such misconduct or to be below par in performance. WP(C) No.41201 of 2016 7
9. I find some force in the submissions of the learned counsel for the petitioner, since the pleadings show that there were allegations against the petitioners and hence it was only proper in equity and justice that they had been afforded an opportunity of explaining and allaying the suspicions obtained against them.
10. However, since I see that the petitioners have already been terminated from service as per Ext.P2 and P3, I do not think that it be justified, especially in view of the averments in the Counter Affidavit, that they be now directed to be reinstated. I think the better course of action would be to permit the petitioners to approach a higher Officer, then who issued Exts.P3 to P5 orders with a representation explaining their stand as well as the suspicions leveled against them, as is discernible from the Counter Affidavit in this case, requesting that their contract be reinstated.
11. Since the 2nd respondent has already taken a view on Exts.P3 & P5, I deem it necessary that the petitioner's representation be considered by a higher Authority and I am told WP(C) No.41201 of 2016 8 that the Officer immediately higher to the 2nd respondent is the GOC, K and K Sub Area, Cubbon Road, Bangalore-2. This representation may be made by the petitioners, if they are so advised, within a period of 15 days from the date of receipt of a certified copy of this judgment to the GOC, K and K Sub Area, Cubbon Road, Bangalore-2. On such a representation being received by the said Officer, he shall consider the same, after affording an opportunity of being heard to the petitioners and take a decision as to whether the contract of the petitioners can be reinstated and whether they can be allowed to continue to work under such contract. This decision will have to be taken by the GOC, K and K Sub Area, Cubbon Road, Bangalore-2 as expeditiously as possible, but not later than one month from the date on which he receives the representation from the petitioners.
11. I make it clear that the GOC, K and K Sub Area, Cubbon Road, Bangalore-2 shall consider the claims of the petitioner untrammeled by any of the proceedings in this writ petition or by anything that I have stated in this judgment since my views are WP(C) No.41201 of 2016 9 exclusively intended for resolution of the lis involved before me and nothing else.
This writ petition is thus ordered as above. In the peculiar facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
//True Copy// P.A to Judge sp/27/04/17