Jharkhand High Court
Kumari Arati vs Mecon Ltd. & Ors. on 25 August, 2017
Author: Ananda Sen
Bench: Ananda Sen
1
W. P. (S) No. 5905 of 2006
In the matter of an application under Article 226 of the Constitution of India
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Kumari Arati D/o Sri Jawahar Lal, now posted Assistant Project Engineer, in the
Department of DC & C in MECON Ltd., P.O. Doranda, Dist- Ranchi, Resident of
Qtr. No.132, MECON Colony, Shyamli Colony, P.O. & P.S. Doranda, Dist-Ranchi.
Petitioner
Versus
1. MECON Limited, a Govt. of India Enterprises, through its Chairman-cum-
Managing Director, P.O. Doranda, Dist-Ranchi.
2. Dy. General Manager, TS/Electrical, MECON Ltd., P.O. Doranda, Dist- Ranchi.
3. Dy. General Manager (I/c), APDRP, MECON Ltd., P.O. Doranda, Dist- Ranchi.
4. Director Commercial, MECON Ltd., P.O. Doranda, Dist- Ranchi.
5. Sr. Personnel Officer, MECON Ltd., P.O. Doranda, Dist- Ranchi.
... ... Respondents
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PRESENT
HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioners : Mrs. M.M. Pal, Sr. Advocate
Ms. M. Palit, Advocate
For the State Respondents : Mr. Amitabh, Advocate
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JUDGMENT
CAV on 07.07.2017 Pronounced on 25.08.2017
Ananda Sen, J. Heard Mrs. M.M. Pal, learned Sr. Advocate appearing for the
petitioner and Mr. Amitabh, learned counsel appearing for the respondents.
2. In this writ application, the petitioner has challenged the order dated
06.09.2006and 07.09.2006, by which the service of the petitioner was brought to an end and a further prayer has been made to reinstate the petitioner with all benefits and to regularise her services.
3. The case of the petitioner is that an advertisement was published by MECON Ltd., in 2005 seeking applications for recruitment of engineers on contract basis on a fixed salary of Rs.12,000/- per month for a period of one year. As the petitioner was qualified for the said post, she applied. The petitioner, after going through all the formalities, was appointed as Assistant Project Engineer on contract 2 basis for a period of one year from the date of appointment on a consolidated salary of Rs.12,000/-. The said offer of appointment is dated 20.09.2005.
4. The petitioner claims that while she was working and posted in the Electrical (DC & C) Department, some employees, namely, Sujit Kumar and D. Patil were harassing her. She was transferred from the said Section and inspite of such transfer, she alleged that the harassment continued. She claimed that she complained before the Director Commercial, MECON on 27.02.2006, but, filing of the said complaint was not acknowledged by putting any date on the said complaint. Only after repeated requests, the same was acknowledged on 28.08.2006. She claims that her complain fell to deaf ears and no action was taken by the authorities, as such, she reported the matter to the Officer-in-Charge, Doranda Police Station on 01.09.2006. She claims that instead of taking any action against those two officials, her employer slapped a suspension order upon her on 05.08.2006, as a result of which she was put under suspension. On 05.08.2006, another letter was issued to the petitioner, wherein she was informed that Shri Divya Jyoti Patil has complained that this petitioner has assaulted him and recommended for taking stern action against the petitioner.
5. A memorandum of charge was issued to the petitioner on 07.08.2006, wherein she has been charged with assaulting, intimidating, threatening the officer concerned and also of using abusive language. The petitioner submitted her reply to the show cause and stated that just because this petitioner complained about sexual harassment against D. Patil, with an eye of revenge, this proceeding has been initiated against her. An enquiry was set up to inquire the charges levelled against this petitioner. The petitioner appeared in the said enquiry proceeding. It is alleged that during the pendency of the enquiry, an office order dated 06.09.2006 was issued by the Personnel Officer, MECON wherein it has been informed to the petitioner that she will be released from the service with effect from 06.10.2006 and a direction was given to hand over all the articles of the Company. Another letter was issued to the petitioner on 07.09.2006 informing her to hand over the quarters in vacant condition within 7 days from the date of expiry of the contract 3 period. Challenging the said two orders, the petitioner filed this writ application.
6. It is pertinent to mention here that during pendency of the writ application, vide office order dated 05.10.2006, the petitioner was awarded punishment of 'censure' on the basis of the findings of the enquiry officer, after conclusion of the departmental proceeding.
7. Learned senior counsel for the petitioner argues that the order of removal of the petitioner is not simplicitor and rather a stigmatic. She submits that the order is with a malafide intention. She states that though the contract period was for one year, in respect of others, the same has been extended and many of them have been regularised and petitioner has been left out. She stated that the petitioner complained against higher officials, as such she has been made a victim. It is her argument that without taking action against the officers against whom petitioner had alleged sexual harassment, the respondents have initiated departmental proceeding against the petitioner and thereafter removed her in a stigmatic manner taking shelter of the contract. She stated that the respondents should have proceeded with the complaint filed by this petitioner and by not doing so, respondents have saved the actual culprits and punished the petitioner who was being harassed. She submits that as per the judgment reported in (1997) 6 SCC 241 Vishaka & Ors. Versus State of Rajasthan & Others, the management is duty bound to prevent sexual harassment at work place against women and to take appropriate action against the employees who are guilty, but, in this case, the respondents have not taken any action and rather penalised the petitioner. She submits that since the order of removal is not simplicitor and rather stigmatic, the same should be set aside and the petitioner should not only be reinstated, but, rather should be regularised as permanent employee of MECON Ltd.
8. The respondents have filed their counter affidavit and relying on the counter affidavit, learned counsel appearing for the respondents refuted all the allegations levelled against them. In their counter affidavit, it has been stated that the employment was on contract basis for one year only and after one year, the petitioner has got no right for extension. It has been submitted that since the period 4 of one year has expired, MECON Ltd. decided not to extend the contract. It has been mentioned that since the contract was not renewed, it was the duty of the petitioner to hand over vacant possession of the quarters, wherein she was residing. So far as departmental proceeding is concerned, it has been mentioned that the offer of appointment clearly indicated that the petitioner would be governed by the Rules of the Company, meaning thereby, if any misconduct is committed by her, she will be subjected to departmental enquiry. It has been submitted that after departmental enquiry was concluded, she was awarded 'censure', which has got nothing to do with the termination of the contract. It is stated that the termination of contract cannot be linked with the departmental proceeding. It is submitted that the impugned order is simply non-extension of the contract period, which is not a stigma, thus, cannot be interfered with by this Court.
9. Learned counsel for the petitioner relies upon the decisions as reported in (1999) 3 SCC 60 [Dipti Prakash Banerjee versus Satyendra Nath Bose National Centre for Basic Science, Calcutta & Ors.], (2000) 3 SCC 239 [V.P. Ahuja versus State of Punjab & Ors.], 2010 (3) JLJR 10 [Shantanu Mazumdar versus Vice Chairman, Administrative Tribunal, Patna & Ors.], (2013) 10 SCC 324 [Deepali Gundu Surwase versus Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors.] and AIR 1997 SC 3011 [Vishaka & Others versus State of Rajasthan & Others].
10. Admittedly, the petitioner was appointed on 20.09.2005, the appointment letter is Annexure 2 to the writ application. Clause 1 of the said letter clearly suggests that the appointment is on contract basis for a period of one year from the date of appointment on consolidated salary of Rs.12,000/-. The probation period out of one year was 3 months, which can be extended or curtailed. It is necessary to quote Clause 01 of the letter, which reads as under: -
01. Your appointment will be on contract basis for a period of 1 (one) year from the date of joining on a Consolidated Salary of Rs.12000/- (fixed) per month. Besides this no other allowances/benefits will be admissible. However, you will be entitled to CPF as per MECON Provident Fund Rules. For PF deduction, your basic pay shall be treated as Rs.7000/-.5
11. Thus, from the aforesaid letter, there is no doubt that the period of appointment was only for one year with effect from the date of her joining. Clause 12 specifies termination of service. It is necessary to quote Clause 12, which reads as under: -
12. Termination of Service :
a) i) On completion of the period of the Contract or the tenure of the project for which you have been appointed.
ii) At any time by the Company without any previous notice if the Company is satisfied on medical evidence that you are unfit and/or likely to continue to be unfit for efficient discharge of your duties for a considerable time for reasons of ill health, provided always that the decision of the Company that you are unfit and/or likely to continue to be unfit shall be final and conclusively binding on you.
b. During the period of Contract, your service can be
terminated:-
i) By the Company without assigning any reason, by giving
one month's notice or by giving one month's pay in lieu of notice.
ii) By your giving one month's notice in writing to the Company or by giving one month's pay in lieu of notice.
12. Clause 12 (a)(i) clearly suggests that on completion of the period of contract or the tenure of the project for which the petitioner has been appointed, the service would be terminated. Over and above the aforesaid clause, Clause 12 B also suggests that without assigning any reason by giving one month's notice or by giving one month's pay in lieu of notice, the Company can terminate the contract. Clause 15 suggests that if the terms and conditions are acceptable to this petitioner, then only the petitioner will be subject to medical examination and she will be allowed to work.
13. No where from perusal of the entire offer of appointment it has been mentioned that the petitioner will be regularised on completion of the tenure or the petitioner had got any vested right of regularisation. In this case, the petitioner joined on 07.10.2005. Thus, the period of contract was to expire on 06.10.2006.
On 06.09.2006, a letter was issued to the petitioner informing that the period of one year will expire on 06.10.2006 and thus, on expiry of the said period, the petitioner 6 will stand relieved. Petitioner was requested to hand over medical card, identity card, library card or any other document or property of the company. Thereafter letter was issued to the petitioner to vacate the official accommodation. From perusal of the impugned letter dated 06.09.2006, it is understood that the letter is simplicitor information to the petitioner that the contract between the petitioner and the respondent is expiring on 06.10.2006 and on expiry of the said contract, the petitioner will stand released from the said services. There is nothing in the letter to suggest that the same is punitive in nature. None of the wordings of the letter suggest that any adverse remark or any adverse comment has been made against the petitioner. As the contract period came to an end, the Company decided not to continue with the petitioner and it was decided to release her from service.
14. The petitioner tried to influence this Court that since there was a departmental proceeding against the petitioner, petitioner was removed from service. Petitioner further tried to influence that the complaint of harassment made by the petitioner was not taken up by the Company, rather the allegation against the petitioner was inquired and the non-extension of the period of contract is the fall out of such inquiry. It has been further argued that the respondent was duty bound to inquire into the complaint of the petitioner and by not doing so, they committed grave illegality and thus, the termination of the petitioner is malafide and is liable to be quashed. I do not agree with these submissions of the petitioner.
15. The departmental proceeding was initiated against the petitioner in terms of the appointment letter itself. The appointment letter clearly mentions that the petitioner is subject to the Conduct, Discipline and Appeal Rules of the Company. The petitioner appeared in the departmental proceeding and participated. The proceeding ended on 05.10.2006 with a punishment of 'censure'. The authority found the petitioner guilty of the following charges: -
i) Intimidating, threatening, coercing and displaying utmost indecent behaviour.
ii) Commission of act subversive of good behaviour and discipline of the Company.7
iii) Habitual indiscipline and wilful insubordination and disobedience of lawful and reasonable order of Superior Authority.
iv) Negligence in duty and unsatisfactory performance of work assigned to her.
16. Thus, the disciplinary proceeding against the petitioner was in terms of the appointment letter to which the petitioner cannot have any grievance. Petitioner, with her open eyes, had accepted the conditions of appointment. This departmental proceeding is absolutely independent of the letter dated 06.09.2006 by which the petitioner was informed that she shall stand released on expiry of the contract period. The petitioner cannot take shelter of inaction of the company on the allegation levelled by this petitioner against their officers. That complaint is absolutely a different process and if the Company had not taken any action on the complaint, petitioner had other alternative remedies. The judgments cited by the petitioner, on the facts of this case and keeping in view the reliefs sought, is of no relevance.
17. As mentioned earlier, the appointment letter does not even whisper about the extension of the period of contract nor whispers anything about regularisation of service. Thus, since the appointment letter did not whisper regularisation or extension of service, the petitioner, as a matter of right, cannot claim the same. The impugned letter is a simplicitor order of non-extension of contract period. The petitioner, knowing fully well that the contract would come to an end after one year, has accepted the offer. She cannot have any grudge against the Company when the same has not been extended. As mentioned earlier, the impugned letter is not also punitive in nature and is not stigmatic.
18. Thus, I find no merit in the submissions of learned counsel for the petitioner. The order of termination of contract being simplicitor without any stigma, needs no interference.
This writ application is, thus, dismissed.
(Ananda Sen, J) High Court of Jharkhand, Ranchi dated, the 25th of August, 2017 AFR Kumar-cp.03