Himachal Pradesh High Court
Kunal Brahma vs The Board Of Trustees Of Irmt & Others on 9 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2680 of 2015.
.
Judgment reserved on : 04.07.2019.
Date of decision: 09.07.2019.
Kunal Brahma .....Petitioner.
Versus
The Board of Trustees of IRMT & others
.....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. B.N. Mehta, Advocate.
For the Respondents: Mr.Vinod Thakur, Addl. A.G with Mr. Bhupinder Thakur, Dy. A.G and Mr. Ram Lal Thakur, Asstt.
A.G. Tarlok Singh Chauhan, Judge Aggrieved by his termination, the petitioner has filed the instant writ petition for the following reliefs:-
"(i) That the petitioner in the facts and circumstances prays that annexure P/4, dated 02.03.2015 may be set aside and quashed and the direction may please be issued to re-instate the petitioner in active 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 2 service in the interest of law and justice with all consequential benefits.
(ii) That the respondents may also be directed to pay .
to the petitioner special compensation of Rs.20 lacs on account of leave salary encashment and payment of gratuity.
(iii) The respondents may also be directed to pay due salary of the petitioner w.e.f. February 2015.
(iv) That the respondent No.1 may be directed to appoint the petitioner and Dr. Madhaik as Director of the trust in view of the contribution of the petitioner and Dr. Madhaik in the Herbal research."
2. The petitioner was appointed as an Administrator with the respondent-Trust purely on contractual basis for a period of one year on monthly salary of Rs.15,000/-. However, he continued to serve the respondents up till 01.03.2015 when his services came to be terminated vide order dated 02.03.2015 (Annexure P-4).
3. It is averred that the order of termination is highly illegal and violative of Articles 14, 16, 19 and 21 of the Constitution of India and that the petitioner has been rendered pauper at the age of 56 years for no fault on his part. It is further averred that the State of Himachal Pradesh is regularizing the services of the daily wagers and contract employees on completion of 7 years and, therefore, the services of the ::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 3 petitioner should have been regularized, rather than being terminating.
.
4. The respondents opposed the petition by filing reply wherein it is averred that the Trust is not getting recurring grant either from the Government of India or from the State Government and is totally dependent and the entire expenditure of the Trust both committed and emergent is being met mainly souvenir items. This income r to from the income accruing to the Trust from the sale of tickets and by its very nature is highly fluctuating and seasonal. The Trust has two Curator, one Indian and one Russian. The salary of the Indian Curator is met out from the grant received from the Ministry of External Affairs, whereas, the salary of the Russian Curator is being met from the International Centre of the Roerichs (ICR), Moscow. It is further averred that since the grant given by the Ministry of External Affairs is not a recurring grant and it may not continue, in such a situation, the burden of the Indian Curator i.e. Rs. 20,000/- per month will also have to be met by the Trust. It is after considering the financial position of the Trust that the Board of Trustees in its 17th meeting held on 20.12.2014 decided to abolish the posts of Manager and Cultural Organizer. This was done after due consideration and after weighing all the aspects.
::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 4It was found that the affairs of the Trust shall not suffer if these positions were ended and the contracts of the incumbents were .
terminated at the end of their respective terms. The decision is claimed to have been based purely on merit without any ill-will, prejudice or bias towards any individual and has been taken keeping in view the financial constraints and the comparative utility of the positions. It is the posts not the individuals that were found to be redundant.
I have heard the learned counsel for the parties and gone through the material placed on record.
5. It is not in dispute that the services of the petitioner were engaged purely on contractual basis that too only for a year, as is evident from Clause-I of his appointment letter dated 27.04.2006 which reads as under:-
"The appointment is purely on contractual basis for a period of one year including probation period. During the period of probation and at the completion of one year his services are liable to be terminated without any notice."
6. In such circumstances, the petitioner has no right to continue or claim continuity in service, especially, when his services are not being replaced by another contract employee.
::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 57. A careful reading of the letter of appointment leaves no manner of doubt that the appointment offered to the petitioner .
was a limited one. The respondents at the given time had never offered to the petitioner that he would continue in service or that his services would be regularized. It is not even the case of the petitioner that there was any uncertainty or ambiguity in the appointment made by the respondents as to the tenure on the
8. There r is a to post on which he had been appointed.
clear distinction between public
employment governed by the statutory rules and private
employment governed purely by contract. No doubt with the
development of law, there has been a paradigm shift with regard to judicial review of administrative action whereby the writ court can examine the validity of termination order passed by the public authority and it is no longer open to the authority passing the order to argue that the action in the realm of contract is not open to judicial review. However, the scope of interference of judicial review is confined and limited in its scope. The writ court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract.
::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 69. However, judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the .
decision. The Court cannot sit in the arm chair of the administrator to decide whether more reasonable decision or course of action could have been taken in the circumstances.
(Refer Gridco Ltd. & Another vs. Sadananda Doloi & Ors, AIR 2012 SC 729).
10. The petitioner has failed to place before this Court any material to show that the action of the respondents is either unreasonable or unfair or perverse or irrational. As observed earlier, the service conditions of the petitioner makes it abundantly clear that petitioner had been appointed on contractual basis, that too, on a non-statutory scheme.
11. It may be noticed that the petitioner had voluntarily accepted the appointment granted to him subject to the conditions clearly stipulated in the scheme. The appointment subject to the conditions has been accepted with his eyes wide open, therefore, now the petitioner cannot turn around claiming higher rights ignoring the conditions subject to which the appointment had been accepted.
12. It is next contended by the learned counsel for the petitioner that even though there was nothing adverse to the ::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 7 working of the petitioner, yet his services have malafidely been terminated. However, I find that there is no factual foundation laid .
for the same.
13. As a last ditch effort, learned counsel for the petitioner would contend that even though the order of termination on the face of it appears to be innocuous, however, in case the veil is pierced, then the real reason for the termination would be writ-
large.
14. to In support of his submission, learned counsel for the petitioner has placed reliance upon the averments made in para-3 on merits of reply to the petition which read thus:-
"The services of the petitioner were terminated as the Trust decided to discontinue the posts of Manager and the Cultural Organiser and also on the basis of the acts of commission and omission by the petitioner as is evident in the audit reports, and complaints against him. It is clear from the Audit Report submitted by the Chartered Accountant M/s Lamba Vij and Co., Shimla in 2013, which revealed glaring irregularities and mismanagement of finances and violation of procedures by the petitioner thereby defeating the very purpose of his role as Manager. The copies of the audit report of M/s Lamba Vij & Co., Shimla are attached as Annexure R-5. In addition the Internal Audit carried out by the Department of LAC, Government of HP also revealed that the petitioner had failed to discharge his duties. The report finds mention in the letter dated 06-02-2013 which was sent by the ::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 8 Director, Language, Art & Culture HP to the Principal Secretary (Language, Art & Culture) to the Govt. of HP, the copy of which is attached as Annexure R-6. The letter .
written in January 2013 by the former Director of IRMT, Mr. O.C. Handa, to the Director, Language, Art & Culture HP also casts aspersions on the working of the petitioner. The copy of said letter is attached as Annexure R-7. Employees of the IRMT vide their letter dated 04.01.2013 made a representation against the working of petitioner, to the President of the IRMT Nagar who is also the Chief Minister of the Government of Himachal Pradesh. The copy of the said representation is attached as (Annexure R-8). The aforesaid audit reports and complaints which indict the petitioner were also taken into account by the Board of Trustees of the IRMT in its meeting held at Shimla on dated 20.12.2014 along with the financial position of Trust as mentioned in preliminary submissions supra. The BOT decided to discontinue the post of Manager and also of Cultural Organiser and as such the petitioner was given a notice dated 2.3.2015 (Annexure R-9) in which it was intimated that the services would be terminated w.e.f. 1 st April, 2015 and it was directed to handover the charge of files/document, Trust articles/properties and other things to Sh. Ramesh Chander Indian Curator IRMT within 7 days."
15. Even this contention is equally without merit for the simple reason that it was in response to the averments made in para-3 that the respondents had filed the reply as extracted above.
::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 916. Now, in case para-3 of the petition is adverted to, it is stated that the petitioner has been discharging his duties to the .
entire satisfaction of his superior i.e. respondent No.3 and nothing adverse had been communicated to the petitioner, as would be evident from para-3 of the petition, which reads as under:-
"That the petitioner was discharging his duty to the entire satisfaction of the Superior i.e. Respondent No.3 and nothing adverse was ever communicated to the petitioner in nutshell he discharged his duty honestly and without any complaint whatsoever, the petitioner was taken aback when he was served with the order of termination dated 02-03-2015."
17. No doubt, the stray averments made in the reply in para-3 (supra) suggest that the services of the petitioner were terminated as the Trust decided to discontinue the posts of Manager and Cultural Organiser on the basis of the acts of commission and omission of the petitioner. But, the fact remains that the services of the petitioner were infact terminated only due to financial crunch and not on account of acts of commission and omission on the part of the petitioner as is loosely stated in para-3 of the reply to the petition, as extracted above.
18. It is settled law that the Court can lift the veil of the innocuous order to find out whether it is the foundation or ::: Downloaded on - 29/09/2019 00:35:07 :::HCHP 10 motive to pass an offending order. If misconduct is the foundation to pass the order, then an inquiry into the misconduct should be .
conducted and an action according to law should follow. But, if it is motive, it is not incumbent upon the competent officer to have the inquiry conducted and the services of the contract employee could be terminated in terms of the order of appointment.
19. The termination of the petitioner is in terms of the r to order of appointment and, therefore, it is not by way of punishment as a punitive measure. Accordingly, the need to conduct an inquiry into the alleged misconduct does not arise and the termination of services in terms of the contract has to be held to be valid.
20. In view of the aforesaid discussion and for the reasons stated above, I find no merit in this petition and the same is accordingly dismissed. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan) 9 July, 2019.
th Judge (krt) ::: Downloaded on - 29/09/2019 00:35:07 :::HCHP