Calcutta High Court (Appellete Side)
Sk. Kamrul Hossen vs The State Of West Bengal & Ors on 13 November, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
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05
13.11.2019.
d.p./p.k.
W.P. 20172 (W) of 2019
Sk. Kamrul Hossen
-versus
The State of West Bengal & Ors.
Mr. Kamalesh Bhattacharyya,
Mr. Shahan Shah.
...For the Petitioner.
Mr. Amal Kumar Sen,
Mr. Milan Maity.
...For the State.
By an order dated 20th June, 2018 the petitioner was
engaged in the post of District Accounts Manager on contract basis
by the Executive Director of the West Bengal State Health and
Family Welfare Samiti.
The terms and conditions of engagement mentioned that the
engagement was purely on contract basis and will be terminated
automatically after expiry of 31st March, 2019. The period of
contract may be extended subject to approval of the position in the
next financial year and satisfactory performance. The service was
terminable by one month's notice from either side.
The Executive Director by a communication dated 23rd April,
2019 written to the Chief Medical Officer of Health renewed the
engagement of the contractual staff till 31st March, 2020 with effect
from 1st April, 2019.
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The petitioner is aggrieved by the notice of termination dated
1st October, 2019 issued by the Executive Officer of the Samiti
intimating him that due to unsatisfactory performance the Samiti
has decided to terminate his service. The notice of termination was
to take effect after one month from the date of notice.
The sheet anchor of the submission of the petitioner is that
the engagement of the petitioner has been terminated without
initiating any disciplinary proceeding and in complete violation of
the principles of natural justice.
The petitioner was issued a show cause notice which he
replied but without initiating the regular disciplinary proceeding
the engagement of the petitioner has been illegally terminated. The
said termination is stigmatic and casts aspersion on the standard
of performance of the petitioner.
It has been submitted that as the petitioner had replied to
the show cause notice, it was incumbent upon the Executive
Director to furnish reasons as to why he was not satisfied with the
explanation given by the petitioner. In the absence of reasons in
the impugned order of termination, it is not possible for the
petitioner to read the mind of the said authority as to factors relied
upon by them to terminate his engagement.
The learned advocate relies upon a judgement delivered by
the Hon'ble Supreme Court in the matter of V.P. Ahuja -vs- State of
Punjab reported in AIR 2000 SC 1080 paragraph 7 wherein it has
been laid down that a probationer, like a temporary servant, is also
entitled to certain protection and his services cannot be terminated
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arbitrarily, nor can those services be terminated in a punitive
manner without complying with the principles of natural justice.
The petitioner prays for setting aside the impugned order of
termination and reinstatement in service.
The learned advocate representing the State respondents
vociferously opposes the submissions made on behalf of the petitioner. It has been submitted that the engagement of the petitioner flows from the engagement order dated 20th June, 2018. The engagement of the petitioner was subject to certain terms and conditions as mentioned in the letter of engagement. The reasons for terminations are clearly indicated in the impugned order. Following the conditions mentioned therein, the petitioner was given one month's notice prior to giving effect to the order of termination.
The service of the petitioner was discontinued on account of unsatisfactory performance. Being a contractual employee, the petitioner is not entitled to the protection as mentioned in the order of the Hon'ble Supreme Court in the case of V.P. Ahuja (supra).
The learned advocate relies upon the provision of Section 14(c) of the Specific Relief Act, 1963 which mentions that a contract cannot be enforced if the same is by nature determinable.
In the instant case, there is a provision for termination of engagement which has been complied with by the respondents and accordingly, the same is not open for scrutiny before the Hon'ble Court.
4I have heard the submissions made on behalf of both the parties. It appears that the petitioner was engaged on contractual basis upon fulfillment of certain terms and conditions. The engagement of the contractual employee was subject to satisfactory performance. The engagement letter mentions about issuance of prior notice before terminating the service of an employee.
The renewal letter of the contractual staff reveals that the same was issued by the Executive Director to the Chief Medical Officer of Health categorically indicating that the service could be renewed based on satisfactory performance. The said letter of renewal was not issued individually to the petitioner. It was a general instruction given by the Executive Director to the Chief Medical Officer of Health.
It appears that by a letter dated 10th April, 2019, the Chief Medical Officer of Health directed the District Accounts Manager i.e. the petitioner herein to update the books of account of various programmes. It was mentioned that the books of account were not updated since September 2018 in spite of repeated verbal intimations.
The petitioner's wife by a communication dated 26th April 2019 intimated the Chief Medical Officer of Health that her husband was suffering from illness and was not in a state to attend office. She requested the authority to grant leave in favour of the petitioner herein. The petitioner thereafter by a communication dated 30th April 2019 requested for leave.
By a communication dated 15th May 2019 the petitioner was issued revised show cause for negligence towards his duties. The 5 said letter was issued by the Member Secretary of the District Health & Family Welfare Samiti. As many as eleven instances of negligence were mentioned in the said show cause notice.
A letter allegedly written by the petitioner on 24th May 2019 to the Chief Medical Officer of Health in reply to the revised notice of show cause has been annexed with the writ petition but there is no receipt showing submission of the said explanation to the authority concerned.
The petitioner again by another communication dated 14th June 2019 requested the authority for post facto leave for the period 14th May 2019 till 13th June 2019.
By a communication dated 8th August 2019 the petitioner was directed to prepare the final accounts and to submit the same urgently by 10th August 2019. The petitioner by a communication dated 9th August 2019 sought for time for preparation of the annual accounts. The petitioner again by letters dated 6th September and 13th September 2019 prayed for leave.
The impugned order of termination of the engagement of the petitioner was issued on 1st October 2019. There are eight instances distinctly mentioned highlighting the unsatisfactory performance of the petitioner.
I am not convinced with the arguments made by the petitioner that a regular disciplinary proceeding ought to have been conducted against the petitioner prior to his termination.
6It is trite law that an employee who is engaged on contractual basis does not enjoy the same benefits and protection as enjoyed by a regular, permanent or temporary employee. It appears from the documents annexed to the writ petition that he is not keeping good health and in view of which he remains absent on frequent basis.
An employee is engaged on contract for performance of certain duties and if the person concerned remains absent and the work remains pending then there is no requirement for retaining the said person in service. The employer always has the right and the privilege to test the standard of performance of an employee. If an employee fails to perform his duties satisfactorily and remain absent on regular basis, there is no reason to keep him in service. The work of the authority ought not to suffer and remain pending due to the negligent and unsatisfactory performance of the employee. After all, it has to be kept in mind that public duty and services should be given utmost importance and priority and such duties ought to be entrusted upon the best candidates. The employer definitely has the right to select and retain the best of the lot and let go the ones who become a burden upon the State.
In the instant case, there are several instances mentioned which shows that the service of the petitioner is far from satisfactory.
Moreover, being a contractual employee, the petitioner does not have the right to hold on to the job without delivering the service as required from him. The service of the petitioner was contingent to his satisfactory performance. As the petitioner failed 7 to perform satisfactorily the action of the respondents terminating his service cannot be faulted.
The decision relied upon by the petitioner speaks of protection and for compliance of the principle of natural justice in respect of employees who have been engaged in a regular post under sanctioned vacancies. In the case at hand, the service of the petitioner was completely contractual, the same was neither temporary nor the petitioner was a probationer. Accordingly, the aforesaid judgement is clearly distinguishable and not applicable in the facts and circumstances of the instant case.
The provision relied upon by the respondents under the Specific Relief Act clearly mentions that if the contract was determinable in nature then the same cannot be specifically enforced. The letter of engagement from which the petitioner derives the right to continue in service indicates the grounds upon which the same could be terminated. Following the conditions mentioned in the letter of engagement, the petitioner was given one month's prior notice before his termination. The grounds for termination are also mentioned in the said letter.
The petitioner is not entitled to any relief in the instant writ petition.
W.P. No. 20172 (W) of 2019 stands dismissed.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.
(Amrita Sinha, J.) 8