Allowed

Smt. Rashmi Upadhyay v. State of U.P. and 3 Ors.

Allahabad HC12 Sept 2018SPLA/848/2018

Case brief

AI extract

What is this about?

A Special Appeal challenging the dismissal of a writ petition by the Single Bench that terminated a teacher without calling for her explanation. The Supreme Court held that for fixed-term appointments, an enquiry conducted behind the employee's back rendering adverse findings violates natural justice, making the termination order bad in law; consequently, the appeal was allowed.

What did the court decide?

The appeal was allowed; the impugned order dated 21st August, 2018 was set aside, and the writ petition filed by the appellant was allowed, setting aside the termination order dated 24/25th July, 2018

Smt. Rashmi Upadhyay Vs State of U.P. and 3 Ors. — Service and Employment | Allahabad HC (2018)

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Court No. - 21

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Case :- SPECIAL APPEAL No. - 848 of 2018

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Appellant :- Smt. Rashmi Upadhyay Respondent :- State Of U.P. And 3 Ors Counsel for Appellant :- Abhishek Singh,Shri H. N. Singh Counsel for Respondent :- C.S.C.,Sanjay Kumar

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Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.

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This appeal is before us to examine correctness of the order dated 21st August, 2018 passed by learned single Bench in Writ-A No.17779 of 2018.

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Learned single Bench dismissed the petition for writ by arriving at the conclusion that appointment of the appellant-petitioner was on contractual basis and, therefore, no need was there even to call her explanation with regard to the allegations in question.

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In brief, factual matrix of the case is that an appointment was accorded to the appellant-petitioner under an order dated 26th December, 2009 passed by the Expert Basic Education Officer, Muzaffarnagar as Warden-cum-Teacher (Full Time) for the educational session of 2009-10. The appointment though was given on contractual basis on a fixed honorarium but the same was extended time to time. Under an order dated 24/25th July, 2018, the District Basic Education Officer, Shamli terminated the appellant-petitioner from service being failed to discharge her duties.

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As per the order dated 24/25th July, 2018 three girls residing at the hostel concerned left the hostel without having any permission and returned on 22nd July, 2018. The movement of the girls caused huge difficulty for the local administration and the department of education. On an enquiry, it was found that the appellant-petitioner was negligent in discharging her duties, therefore, she was terminated from service. Aggrieved by the order dated 24/25th July, 2018, the appellant-petitioner preferred a petition for writ that came to be dismissed under the order impugned.

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In appeal, the argument advanced by learned counsel appearing on behalf of the appellant is that though the appointment of the appellant-petitioner was on contractual basis but even that could have not been terminated without asking explanation from her. It is stated that the termination of the appellant-petitioner is not

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simpliciter but stigmatic in view of the findings arrived in an enquiry that was conducted behind the back of the appellantpetitioner.

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Per contra, as per learned Standing Counsel, the appellantpetitioner was working purely on contractual basis and, therefore, instant one is a case of termination of service contract and for that if the petitioner is having any grievance, she may claim damages by way of filing a suit but she cannot be reinstated in service by issuance of a writ or decree.

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Heard learned counsels for the parties.

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On going through the order of appointment dated 26th December, 2009, it reveals that though the appointment of the appellant-petitioner was termed as on contractual basis but that was as a consequence to a process of selection for full time working as Warden-cum-Teacher. The order also creates a right for extension of service tenure on having satisfactory conduct. The order of appointment as a matter of fact no where discloses that any service contract between the parties were executed but that reflects that an appointment was given for a fixed term with definite honorarium.

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The appointment given on fixed term and appointment as a consequence to service contract are two different and distinct kind of employments. In fixed term appointment, it is not necessary to have any service contract between the parties. In such kind of employment the appointment is given by the employer for a specific term with a pay/salary/wages settled by the employer himself. On the other hand, contractual service as a consequence to service contract requires an offer for employment, its acceptance and the agreement between the parties settling service conditions relating to employment.

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In the case in hand, there was neither any offer of appointment nor any acceptance thereof and as such there was no question of executing agreement of service conditions. The appointment was given to the appellant-petitioner for a fixed term with an honorarium. The term of employment and the honorarium were decided by the employer and service of the appellant-petitioner were utilized under an order of appointment and not by executing any contract of service with conditions of service.

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In view of whatever stated above, we are not in agreement with the argument advanced by learned counsel appearing on behalf of the respondents that the instant one is a case of termination of contract. On arriving at the conclusion that the appointment of the appellant-petitioner was not a contractual one but for

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fixed term, we are of the opinion that at least an opportunity should have been given to her to explain the circumstances relating to the incident in question.

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True it is, the appellant-petitioner is not a civil servant and, therefore, is not entitled to have a reasonable opportunity to defend herself but that will not preclude the employer from adhering the opportunity of audi alteram partem, specially looking to the circumstance that an enquiry behind the back of the appellant-petitioner was conducted recording the adverse findings.

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Looking to this factual background, we are having no hesitation in arriving at the conclusion that the order impugned dated 24/25th July, 2018 is bad on its face.

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For the reasons given above, the appeal deserves acceptance. Accordingly, the same is allowed. The order impugned dated 21st August, 2018 passed by learned single Bench is set aside. The writ petition preferred by the appellant-petitioner is allowed. The order dated 24/25th July, 2018 is set aside. The respondents are at liberty to take appropriate disciplinary action against the appellant petitioner and to discontinue her from service after seeking necessary explanation. No order to cost.

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Order Date :- 12.9.2018 Bhaskar

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(Chandra Dhari Singh, J.) (Govind Mathur, J.)

Smt. Rashmi Upadhyay v. State of U.P. and 3 Ors.

Case brief

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Smt. Rashmi Upadhyay v. State of U.P. and 3 Ors.

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