Allowed

Kishore Ch.Panda v. State of Orissa

Orissa HC19 Dec 2023WP(C)/6888/2016

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a writ petition challenging the termination of a contractual employee. The court held that the termination violated natural justice principles as no show-cause notice or inquiry was conducted prior to termination. Additionally, the court quashed the order as it contradicted guidelines and official communications regarding the employee's 'good' performance rating.

What did the court decide?

Impugned termination order set aside.

Kishore Ch.Panda Vs State of Orissa — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(C) No.6888 of 2016

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Kishore Chandra Panda ....... Petitioner

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-Versus-

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State of Odisha & others ....... Opp. Parties

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For Petitioner : Mr. S.D. Routray,
Advocate
For Opp. Party Nos.1 & 3 : Mr. S.N. Pattanaik, AGA
For Opp. Party No.2 : Mr. B.P. Tripathy,
Advocate
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CORAM: JUSTICE SANJAY KUMAR MISHRA

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--------------------------------------------------------------------------------Date of Hearing: 21.06.2023 Date of Judgment: 19.12.2023 ---------------------------------------------------------------------------------

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S.K. Mishra, J . The Petitioner, who was working as Accountant-

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Cum-D.E.O in the Area Hospital, Dhusuri on contractual basis, has preferred the present Writ Petition challenging the Order of termination dated 27^th February, 2016 issued by the District Mission Director-Cum-C.D.M.O., Bhadrak ( Opposite

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Party No.3) vide which the services of the Petitioner was terminated with effect from 3^rd March, 2016.

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2. The brief background facts, which lead to filing of the Writ Petition, are that National Rural Health Mission (NRHM), which is a scheme, has been introduced by the Central Government. The said scheme is being executed by respective State Government to improve the health standard of public. For implementation of the said scheme, the State Mission Director (NHM) decided to fill up different posts on contractual basis through respective Mission Director-CumC.D.M.O. Accordingly, an advertisement dated 24^th March, 2012 was issued by the Zilla Swasthya Samiti, Bhadrak for appointment in different contractual posts, including the post of Accountant-Cum-D.E.O., in Area Hospital. So far as the post of Accountant-Cum-D.E.O. in Area Hospital, three posts

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were advertised to fill up on contractual basis with a consolidated remuneration of Rs.7600/- per month, fixing the eligibility criteria as detailed in the said advertisement. The Petitioner, who had requisite qualification to be appointed as Accountant-Cum-D.E.O in Area Hospital, offered his candidature against the said three advertised posts. He was

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duly selected by the Selection Committee constituted by the District Mission Director-Cum-C.D.M.O., Bhadrak (Opposite Party No.3). Accordingly, appointment letter was issued in his favour vide letter dated 19^th December, 2012. Pursuant to the same, the Petitioner was engaged as Accountant-Cum-D.E.O. under the Area Hospital under National Rural Health Mission, Bhadrak and his place of posting was assigned in the Area Hospital, Dhusuri in the district of Bhadrak.

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3. Further case of the Petitioner is that, in the said engagement order it was specifically mentioned that the contractual service period is for eleven months or till the end of the project. Further extension will be given on assessment of the performance during the period in service. Though the Petitioner was appointed in the year 2012, the same was extended/renewed from time to time taking into consideration his performance as well as other activities.

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4. Though he was initially appointed in Area Hospital,

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Dhusuri, by virtue of the letter dated 21^st December, 2012 issued by the Opposite Party No.3, he was deployed to work as Accountant under the Community Health Centre, Dhamnagar. While the Petitioner was continuing as such, his

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service was renewed from time to time. Vide Office Order dated 5^th June, 2014, the service contract of the Petitioner was renewed retrospectively from 4^th February, 2014 to 3rd January, 2015. While continuing as such, on 12^th August, 2014, the Medical Officer, Dhusuri, asked the Petitioner to give Rs.1,000/-, since the Petitioner was working as Accountant. When the Petitioner asked the Medical Officer as to reason for asking so, he started misbehaving with the Petitioner along with one Pharmacist namely, Binod Mahalik and Attendant, Manas Jena. There Petitioner immediately informed the said incident to the Medical Officer-in-Charge, Dhamnagar Community Health Centre namely, Dr. Jhari Baral on 13^th August, 2014. Again the Petitioner was threatened by the said persons on 4^th April, 2015, for which he informed such incident to the authority on 7^th April, 2015 and 4^th May, 2015 regarding such illegal activities of the above named persons and also regarding misutilisation of Government money by the Medical Officer, Dhusuri hospital.

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5. While the Petitioner was continuing as such, instead of taking action against those persons, who have threatening the Petitioner, so also misutilising the Government money, the

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District Mission Director-Cum-C.D.M.O., Bhadrak (Opposite Party No.3) suddenly issued a letter on 20^th May, 2015 to the Medical Officer, Community Health Centre, Dhamnagar, wherein it was indicated that as per the Enquiry Report submitted by the Additional District Medical Officer, Bhadrak, the Petitioner has been found guilty. On alleged administrative ground, he was directed to work under the C.D.M.O., Bhadrak until further order. Further stand of the Petitioner is that, if at all there was any enquiry, no notice has ever been issued to him at any point of time before issuance of such letter dated 20^th May, 2015. Since the Petitioner raised objection against the Medical Officer, Dhusuri for his illegal activities, he has been victimized. Alleged enquiry has been conducted in absence of the Petitioner by the Additional District Medical Officer, Bhadrak finding the Petitioner guilty. It has also been stated that neither any show cause nor any opportunity was given to the Petitioner to have his say against the said allegations, before the Petitioner was found guilty in the so called enquiry.

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6. Vide communication dated 20^th May, 2015, the C.D.M.O., Bhadrak, wrote to the Medical Officer-in-Charge,

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C.H.C., Dhamnagar, Bhadrak, intimating therein that as per

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the Enquiry Report submitted by the Additional District Medical Officer, (FW), Bhadrak, Petitioner is found guilty. But ten days thereafter i.e. vide Office Order dated 30^th May, 2015, while the Opposite Party No.3 renewed the contract period of different contractual employees, also renewed the contractual service of the Petitioner only up to 30^th June, 2015.

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7. When the matter stood thus, again the Opposite Party No.3 issued an Office Order dated 28^th August, 2015, vide which the Petitioner was deputed to Community Health Centre, Chandbali. While the Petitioner was continuing as such, the Contract Renewal Committee decided to renew the contract period of the Petitioner. Accordingly, the Opposite Party No.3 issued an Office Order on 5^th January, 2016, vide which it was intimated to the Petitioner that his services have been renewed up to 4^th December, 2015. On the very same day another letter was issued by the Opposite Party No.3, wherein it was indicated that as per remarks received for the previous PAR for the period 2014-15, the performance of the Petitioner is rated as “good” and further, during observation

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period, the performance of the Petitioner was also “good”. But it was mentioned therein that since no improvement has been made on the part of the Petitioner, so far as his performance is concerned, he is warned to improve his performance for consideration of his case for further renewal. It is the case of the Petitioner, once his PAR speaks that the performance of the Petitioner was good and further during observation period also the performance of the Petitioner was good, how it could

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be indicated in the said letter that he is to improve his performance.

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8. It has also been pleaded that though letter has been issued by the Opposite Party No.3 on 5^th January, 2016 with a warning to the Petitioner to improve his performance, but one month thereafter, again letter has been issued on 23^rd February, 2016 by the said Opposite Party No.3, indicating therein that as per PAR for the period 2014-15 and 2015-16,

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the performance of the Petitioner is rated as “good”. But the Petitioner was again warned and given an opportunity to improve his performance by 3^rd March, 2016, as the contract period had already been extended up to the said date i.e. 3^rd March, 2016. It was further indicated vide the said

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communication that if the Petitioner fails to improve the performance, no further renewal of his engagement of contract will be accepted. The case of the Petitioner is that once the PAR of both 2014-15 and 2015-16 show that the performance of the Petitioner has been “good”, in order to take action against the Petitioner, such a letter has been issued by the Opposite Party No.3 with oblique motive, indicating therein to improve his performance, which is unsustainable in the eye of law.

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It is also the case of the Petitioner that though a letter was issued on 23^rd February, 2016 warning the Petitioner to

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improve his performance, but four days thereafter i.e. on 27^th February, 2016, Office Order was issued by the Opposite Party No.3, vide which one Saroj Kumar Dixit, the Accountant in R.N. Eye Hospital, was directed to work in place of the Petitioner at C.H.C., Chandbali as Accountant. In the said Office Order, it was indicated that the Petitioner will continue at C.H.C., Chandbali without any charge and his service will be utilized by allotting any work in the office till completion of the contract extension period i.e. 3^rd March, 2016. On 27^th February, 2016, the Opposite Party No.3, while issuing such

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Office Order, directed the Petitioner to continue at C.H.C., Chandbali without any charge. Surprisingly, on the very same day, another letter was issued addressing the Petitioner, wherein it was stated that in view of the various irregularities observed during the tenure of the Petitioner as AccountantCum-DEO, his service is no longer required and accordingly, the same was terminated with effect from 3^rd March, 2016.

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The stand of the Petitioner is that the entire action

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taken by the Authorities against the Petitioner clearly indicates that the Opposite Party No.3 was predetermined and biased to take drastic action against the Petitioner without

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any fault on his part, as the Petitioner raised objection regarding misutilisation of Government money by the higher authority. He has been victimized by arbitrarily terminating

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him from service without following any procedure, even though the authority concerned, in his PAR 2014-15 and 2015-16, rated him as “good”. Therefore, there was no

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justification to terminate the services of the Petitioner on the ground of poor performance or irregular activities, as stated by the Opposite Party No.3. It is also the case of the Petitioner

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that on receiving the said letter dated 27^th February, 2016,

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vide which his services were terminated with effect from 3^rd March, 2016, having no alternative remedy to ventilate his grievances, the Petitioner submitted a detailed representation before the Mission Director, National Health Mission, Bhubaneswar (Odisha) on 4^th March, 2016.

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9. It is further grievance of the Petitioner that while he was continuing in service, his salary for the period from 29^th August, 2015 to 30^th September, 2015 and from 1^st December, 2015 to 3^rd March, 2016 has not been paid. Hence, he gave representation on 19^th October, 2015 to the Opposite Party No.3 to sanction leave for the said period and to pay the salary for his treatment, but no action has yet been taken on the said representation by the authority concerned. Accordingly, a prayer has been made to quash the order of termination dated 27^th February, 2016 and to direct the Opposite Parties to reinstate the Petitioner in service as Accountant and to pay him all consequential service benefits, including the pending arrears, within a reasonable time to be stipulated by this Court.

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10. Being noticed, the Opposite Party Nos.1 to 3 have filed a joint Counter Affidavit taking a stand therein that the

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Petitioner was appointed on 21^st December, 2012. During his career, his performance was rated as “good”. He never improved over it. As per the Rule, if any employee, whose remarks were recorded in the PAR as “good” for two consecutive terms, their performance having been of minimum utility for achievement of Mission objective and not having been improved from the previous year mediocre performance, will be kept under observation for two quarters

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from the date of expiry of the last contract period with a day

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break in between date of expiry of last contract period and

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commencement of the observation period, as per the guidelines dated 10^th April, 2015. The Petitioner was kept under observation for the period from 5^th January, 2015 to 30^th June, 2015. Again, it was reviewed after two quarters and

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it was found that he has not improved on his previous performance. Hence, he was given another two quarters observation period from 2^nd July, 2015 to 4^th December, 2015. As on 4^th December, 2015, the Petitioner had not submitted his PAR, extension of another quarter was given to him with instruction to submit the PAR. Pursuant to the same, PAR was submitted by the Petitioner, which was reviewed on 6^th

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February, 2016. It was found that he rates “Poor”

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performance. Thus he was to be terminated from service by the Renewal Committee. The Committee sat on 27^th February, 2016 and did not allow further extension of the services of the Petitioner after 3^rd March, 2016.

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11. As to the allegations made against the Petitioner, after the matter was investigated into, the Petitioner was found at fault. The behavior and activities of the Petitioner were detrimental to the interest of the National Health Mission (NHM). To substantiate such pleadings, an Enquiry Report dated-Nil has been annexed to the Counter Affidavit as Annexure-C/3, which indicates that after termination of service of the Petitioner, based on his grievance petition, an enquiry was conducted by the State Level Team comprising of AD (Finance), JD (Admn) & SFM constituted by the Mission Directorate order dated 5^th April, 2016. The said team proceeded to Bhadrak on 12^th May, 2016 and 4^th August, 2016, met the C.D.M.O.-DMD, Bhadrak, D.P.M. Bhadrak and verified the files, documents in connection with the grievance petition of the Petitioner. As to the allegation made by the Petitioner as to conducting the enquiry behind his back, it

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has been stated in the Counter that the enquiry team proceeded to Dhusuri Area Hospital with prior intimation to all concerned vide order dated 15^th May, 2015, including the Petitioner to remain present in the enquiry. Such enquiry was done in response to the allegations made by the Petitioner vide his representation dated 13^th August, 2014, 7^th April, 2015, 4^th May, 2015 and report of the Medical Officer (I/c), Dhamnagar C.H,.C. vide his letter dated 11^th May, 2015. All points as alleged by the Petitioner were discussed in presence of the Petitioner and all other concerned and the observations were recorded. It has also been stated in the Counter that from the grievance petition dated 4^th March, 2016 (Annexure-13) it can be well revealed that the Petitioner was present during the enquiry. It has been stated in the Counter that PAR of the Petitioner was “good”. Hence, he was kept under observation for two quarters up to 30^th June, 2015. Again he was given another chance from 2^nd July, 2015 to 4^th December, 2015 and provided with all facilities to improve his efficiency. It is also stand of the Opposite Parties in the Counter that essential work like payment of honorarium to ASHA’s, payment of incentive to mothers under Janani

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Surkshya Yojana (JSY) and other similar accounts activities suffered in spite of possible external support provided by the District Officials and because of the reason of his noncooperation. Ultimately, an alternative arrangement was made to clear the backlog activities of the CHC. Hence, the allegation of oblique motive made by the Petitioner has been denied to be baseless. As to the allegation regarding PAR of the Petitioner for the quarter, it has been stated that it was

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rated as “poor”. As per point No.ix of the guidelines, those employees, whose performance are rated as poor, their contractual service shall not be renewed. Accordingly, as per the decision taken by the Chairman of the Contract Renewal Committee, an order for non-renewal of agreement issued to the Petitioner. It is also stand of the Opposite Parties that due to sub-optimal level of performance of the Petitioner, which was adverse to the interest of OSH & FW Society by depriving the public from getting the benefits on time, his contract was not renewed and the action taken against him was in terms of the guidelines of Mission Directorate which was followed scrupulously before terminating the contract of the Petitioner with effect from 3^rd March, 2016. Further stand of the

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Opposite Parties is that the Petitioner was provided with adequate opportunities to improve his performance. However, he failed to perform better. As to the allegation of nonpayment of his legitimate dues, it has been averred that the same has been paid to the Petitioner through PFMS on 20^th June, 2016 by transferring the same to his SBI Account. To substantiate such stand taken in the Counter, a communication to the said effect made by the Medical OfficerIn-Charge, C.H.C., Dhamnagar, Bhadrak addressed to the

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C.D.M.O., Bhadrak has been appended to the Counter Affidavit as Annexure-D/3.

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12. In response to the Counter Affidavit filed by the

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Opposite Parties, the Petitioner has filed Rejoinder Affidavit specifically indicating therein that the so called enquiry conducted by the District Level Team was done behind the back of the present Petitioner. At no point of time the Petitioner was ever called upon to appear before the Committee and submit his reply. Without affording any opportunity to the Petitioner, the alleged enquiry was

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conducted, wherein it was found that the Petitioner’s service has been rightly terminated by the Authority. Therefore, since

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the Petitioner has not been called upon to appear in the said Enquiry, the Enquiry Report, on which the Opposite Parties rely upon, cannot be taken into consideration. Even assuming, not admitting, that such enquiry report has been submitted by following due procedure, still then no further action has been taken by the Opposite Party No.2 to consider the grievance of the Petitioner. Hence, the said so called Enquiry Report may not be taken into consideration and the same deserves to be ignored, as it was done in gross violation

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of the principles of natural justice.

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13. It has been pleaded in the Rejoinder that the specific

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case of the Petitioner is that the Opposite Party No.3, on 5^th

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January, 2016 issued a letter to the Petitioner to improve his performance. Further, on 23^rd February, 2016, vide

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Annexure-10, the Petitioner was warned to improve his performance, indicating therein that as per his previous PAR for the period 2014-15 and 2015-16, his performance was “good”. Four days thereafter i.e. on 27^th February, 2016, the impugned order was passed by terminating his service without following any procedure, as contemplated under law. Hence, in no circumstances, the impugned order dated 27^th

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February, 2016 is sustainable in the eye of law and the same is liable to be quashed. So far as the allegation of Opposite Parties as to poor performance of the Petitioner, as observed by the District Review Committee headed by the Collector, it has been stated that the same is total incorrect and fabricated. At no point of time such District Level Review Committee, headed by the Collector, has given any finding regarding poor performance of the petitioner. His services were terminated, even though his past performances are quite satisfactory and he was given “good” remarks, which is well

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evident from the so called Enquiry Report, as at Annexure-

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C/3 as well as Annexure-10 to the Writ Petition. So far as allegation of non-utilization of Government fund, it has been stated in the Rejoinder that, the Petitioner served at Dhusuri Hospital from 21^st December, 2012 to 2^nd June, 2015 and has spent all the Government money by utilizing the same properly. Despite such satisfactory performance, the authority concerned victimized him and terminated his services. To substantiate the stand as to proper utilization of Government money in a proper way, document has been appended to the Rejoinder Affidavit as Annexre-15, obtained under the Right

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to Information Act, 2005. It has also been averred in the Rejoinder that law is well settled that even though the Petitioner has been appointed on contractual basis, the principle of natural justice is required to be followed before terminating the service of a contractual employee. But in the instant case, neither before passing the impugned order under Annexure-12 nor before submitting such Enquiry Report under Annexure-C/3, the Petitioner was ever given an

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opportunity of being heard. On that ground alone, the impugned order is liable to quashed, as such action is vindictive and has been taken without following the due procedure of the law.

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14. Learned Counsel for the Petitioner submitted that as

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per guidelines dated 01.10.2011, all staff whose remarks are recorded as “Outstanding/Very Good/Good”, may be allowed

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to continue in the service and shall discharge all functions after completion of the contract period pending renewal. He further submitted that Clause (vii) and (ix) clearly state that that those employees whose performances are rated “good”, they would be given a warning letter to improve their performance in future and those employees whose

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performances are rated as “poor”, their contractual service shall not be renewed. He further submitted, from Annexure-9 and 10 it is crystal clear that the PAR of the Petitioner was rated as “good” and he was warned to improve his performance as per the guidelines dated 1^st October, 2011. Therefore, the impugned order dated 23^rd February, 2016, being contrary to the guidelines, is liable to be quashed. Learned Counsel for the Petitioner further submitted that though the Opposite Parties, in para-9 of their Counter, have clearly stated that PAR of the Petitioner was “good”, contrary to their own pleadings, in paragraph-13 it has been stated that PAR of the Petitioner was rated as “poor” and therefore, his services were not renewed. In view of such contrary stand taken in the Counter Affidavit, the same is unsustainable. Such action is also in clear contravention to letter dated 23^rd February, 2016, wherein it has been clearly stated that the PAR of the Petitioner for the period 2014-15 and 2015-16 were rated as “good” and he was warned and given an opportunity to improve his performance. Learned Counsel for the Petitioner further submitted that service of the Petitioner was terminated allegedly basing on an enquiry conducted by

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the Medical Officer-Incharge, Dhamnagar C.H.C. and no show cause notice was issued to the Petitioner. Therefore, principle of natural justice has not been followed before issuance of the order of termination. He further submitted that the stand taken by the Opposite Parties in the Counter are contradictory. Though in paragraph-5 of the Counter Affidavit, it has been stated that the PAR of the Petitioner was reviewed on 6^th February, 2016 and it was found that he rates “poor” performance and accordingly, the Committee sat on 27^th February, 2016 and did not allow further extension of the service of the Petitioner after 3^rd March, 2016, as if it is a case of termination simplicitor, but contrary to the same, also a stand has been taken in paragraph-7 of the Counter Affidavit that the behavior and activities of the Petitioner were detrimental to the interest of the National Health Mission. Hence, it is well evident that the action taken against the Petitioner is not a case of termination simplicitor. Rather, the same was punitive for the alleged behavior and activities of the Petitioner, which were allegedly detrimental to the interest of N.H.M.

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15. Mr. Rout, learned Counsel for the Petitioner further submitted that even though somebody is appointed on contractual basis, if his service is brought to an end because of any misconduct, the principles of natural justice is to be followed before terminating the services of a contractual employee. To substantiate his argument, learned Counsel for the Petitioner relied on judgment of this Court dated 22^nd September, 2015 passed in W.P.(C) No.7515 of 2015 ( Pravat Kumar Mishra vs. State of Orissa and others ), Judgment dated 28^th March, 2011 passed in W.P.(C) No.2964 ( Monalisa Behera vs. State of Orissa and others ), Judgment dated 28^th October, 2022 passed in W.P.(C) No.7612 of 2019 ( Ramesh Sahoo vs. State of Odisha and others ) and Judgments of the apex Court in State of U.P. and others vs. Ram Vinai Sinha , reported in (2010) 15 SCC 305 and in GRIDCO Limited and others vs. Sadananda Doloi and others , reported in AIR 2012 SC 729.

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16. Learned Counsel for the contesting Opposite Parties, reiterating the stand taken in the Counter Affidavit, submitted that the Petitioner being a contractual employee and his last tenure of service being extended till 3^rd March, 2016, has no

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right to ask for continuance of his contractual service beyond

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the said period and the authority concerned i.e. Review Committee, based on the PAR of the Petitioner and in terms of the guidelines prescribed by the Mission Directorate, took a decision not to renew the contractual service period of the Petitioner beyond 3^rd March, 2016 in terms of point No.ix of the said guidelines. There is no illegality or infirmity in the said order and the same is in conformity of the guidelines, so also contractual service agreement entered into between the Odisha State Health and Family Welfare Society under the Department of Health and Family Welfare, Government of Odisha. Continuance of the Petitioner is subject to satisfactory performance of the duties and midterm evaluation of work, concomitant to the provision of Articles 6 & 7 of the said Agreement. Such service condition of the Petitioner is guided under Clause-2 of the said Agreement. Since the performance of the Petitioner was found poor, the said contract stood terminated.

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17. To substantiate the stand taken in the Counter Affidavit, Mr. S.N. Pattanaik, learned Additional Government Advocate for the State relied on the judgment of this Court

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reported in 2016 SCC OnLine Ori 291 ( Jyana Ranjan

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Mohapatra vs. National Health Mission ).

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18. From the pleadings of the parties and the argument advanced by the learned Counsel for the parties, the issues to be decided by this Court as to whether the Opposite Parties were justified to bring to an end the service of the Petitioner with effect from 3^rd March, 2023 in terms of the Order and Guidelines of Mission Directorate, National Rural Health Mission, Odisha and whether such action of the authority concerned is punitive in nature and if so, whether the principle of natural justice has been followed before taking such punitive action. Before dealing with the issues as detailed above, it is apt to reproduce below the order of appointment of the Petitioner dated 19.12.2012 as at Annexure-2, so also Clause-2 of the Contractual Service Agreement dated 5^th January, 2015 as at Annexure-A/3 to the Counter Affidavit.

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“OFFICE OF THE CDMO & DISTRICT MISSION DIRECTOR, BHDRAK DISTRICT PROGRAMME MANAGEMENT (Department of Health & FW. Govt. of Orissa)

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Letter No.16/3/DPMUBDK Date: 19.12.2012

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In accordance to the interview conducted on 12^th December, 2012 vide Advertisement No.429 Dated 28.03.2012 of CDMO & District Mission Director, Bhadrak, I am pleased to inform you that, you are

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provisionally selected for engagement as Accountantcum-DEO in Area Hospital under NRHM, Bhadrak with terms and conditions as detailed below on a monthly consolidated base remuneration of Rs.9,880/- (Rupees Nine Thousand Eight Hundred Eighty) only and other allowance as per OSH & FW norms, as noted against each.

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Sl.No	Name of the Candidate	Place of Posting
1.	Radha Krishna Panda	RN Eye Hospital, Bhadrak
2.	Niyazuddin Khan	AH, Puruna Bazar, Bhadrak
3.	_Kishore Chandra Panda _	*AH, Dhusuri,* Bhadrak

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1. The engagement is purely contractual in nature and can be terminated at any point of time without assigning any reason thereof,

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2. The candidate once engaged cannot claim for reengagement under any conditions as a matter of right,

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3. The contract is initially for a period of eleven (11) months or till the end of the Project period whichever is earlier and further extension will be provided on assessment of your performance of the period in service.

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4. You will be located at the concerned Area Hospital and report to Medical Officer I/C and DAM/DPM, NRHM and under overall supervision of CDMO & District Mission Director. Your job responsibilities are as mentioned in the ToR attached to Annexure-I.

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A. The engagement is subject to signing of agreement (Annexure-A), undertakings (Annexure-B) and acceptance of TOR (Annexure-C). The agreement must be made in non-judicial stamp paper of Rs.10/-.

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B. At the time of joining, the following documents are to be submitted along with joining report without which your joining shall be accepted.:

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1. Production of certificate of Medical fitness from Gazetted Officer not below the rank of Asst. Surgeon;

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2. Character Certificate from a Gazetted Officer of the State/Central Government;

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3. Photo proof of identity (driving license/voter ID Card/passport/PAN card);

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4. Attested photocopy of all educational qualification certificates and mark sheets (HSC, Intermediate, Graduation, Post Graduation, PGDCA and extra qualification if any);

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5. Resident certificate, Caste certificate;

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6. Two Passport size photograph.

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C. If any declaration given or information furnished by you proves to be false or if you are found to have willfully suppressed any material/information, you will be liable to be removed from the said post and such other action as the competent authority may deem necessary.

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D. Please communicate your acceptance within 3 days of receipt of this letter and join within 7 Days of receipt of this letter to the undersigned along with agreement paper and other documents. If you failed to join within the stipulated time, this offer of engagement made to you is liable to be treated as cancelled forthwith.

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Yours sincerely,
XXX XXX XXX”
(Emphasis supplied)
“Extract from Contractual Service Agreement
“ 2. DURATION OF AGREEMENT

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The contract shall be from 05.01.015 to 04.12.015 ( Subject to continuance of the post in the PIP ) any may ordinarily, subject to satisfactory performance of duties and midterm evaluation of the work concomitant to the provisions of Articles 6 and 7 of this agreement be renewed. The Second Party shall neither have any right or lien on the contractual job and the services shall stand automatically terminated at the expiry of the contract period or at the end of the project or abolition of the post by GoI or ceasation of release of funds whichever is earlier.

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There will be performance appraisal in every eleven months and if two consecutive appraisals are average the contract will stand automatically cancelled .”

¶149

(Emphasis supplied)

¶150

19. Similarly, it is worthwhile to reproduce below the guidelines dated 1^st October, 2011 on preparation and submission of Annual Performance Appraisal Report (APAR),

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so also relevant portions from the Office Order dated 10^th

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April, 2015 as at Annexure-B/3.

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“ Mission Directorate

¶156

National Rural Health Mission, Orissa Department of Health & Family Welfare, Government of Orissa

Letter No.13429

Date: 01/10/11

From

Dr. Pramod Meherda, IAS
Mission Director, NRHM &
Ex-Officio Addl. Secretary to Govt.

¶161

TO
All Chief District Medical Officers.
Sub: Guidelines on preparation and submission
of Annual Performance Appraisal Report
(APAR)
Sir,
With reference to the subject cited above, I am to
furnish the detailed guidelines on preparation and
submission of APARs as under for your information &
needful action.

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i) All the Contractual staff of the OSH&FW Society should submit their APARS before two months of the completion of their last contract period.

¶163

ii) The DHIO of each District Programme Management Unit should update their employees’ database in the HRMIS (Human Resource Management Information System) every month.

¶164

iii) All the staff while submitting their APARS to the concerned Reporting Authority should put their data entered in the online system of HRMIS and send an advance copy thereof to the Mission Directorate for information & necessary action.

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iv) All the staff whose remarks in APARS are recorded as “Outstanding/Very Good/Good”, may be allowed to continue in the service and shall discharge all functions after completion of

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contract period pending renewal. In case of those staff whose performances are recorded as “Poor/Average”, the concerned reporting officers should give adequate justifications to substantiate such remarks and the concerned staff should be refrained from exercising any financial powers till receipt of orders of renewal of their contract from the Mission Directorate .

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v) If the APARS of the employees do not reach the Mission Directorate before expiry of the contract period, then the advance copy of APARS submitted to the Mission Director would be sent to the State level Consultant for giving his/her remarks and thereafter as the said APARs would be placed before the Contract Renewal Committee meeting for de cision.

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vi) Those employees whose performances are rated as “Outstanding”, the Reporting Authority would give sufficient justification to substantiate such remark. They would be given appreciation letter to maintain the same level of performance in future.

¶171

vii) Those employees whose performances are rated as Good, they would be given warning letter to improve their performance in future .

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viii) The employees whose performance are rated as “Average” with sufficient justification, they would be given three months time to improve their performances.

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ix) Those employees whose performances are rated as “Poor”, their contractual service shall not be renewed.

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Sd/-
Mission Director, NRHM &
Ex-Officio Addl. Secretary to Govt.
Memo No.13460 Dated : 01.10.2011

¶175

Copy forwarded to all DPMs/DAMs for information & necessary action.

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Sd/Mission Director, NRHM & Ex-Officio Addl. Secretary to Govt.”

¶177

(Emphasis supplied)

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“ Extract from Office Order dated 10^th April, 2015

¶181

“vi. Wherever, the remark of successive PAR assessing authorities differ for more than one grade (Example-Reporting Authority rated as Good and Reviewing Authority as Outstanding), then the concerned PAR of the employee will be sent to both the authorities again for re-assessment of their remarks.

¶182

vii. Those employees, whose remarks were recorded in the PAR as ‘Good’ for two consecutive terms , their performance having been minimum utility for achievement of Mission objectives and not having been improved from the previous year mediocre performance, their performance will be kept under observation for 2(two) quarters from the date of expiry of the last contract period with a day break in between the date of expiry of last contract period and commencement of the observation period .

¶183

viii. In case of contractual employees whose PAR assessment has been rated as “Good” or above for unexplained reasons, but has been assessed at the State level that the performance of the employee has been at the sub-optimal level and adverse to the interest of the OSH&FW Society scheme, the State authorities can take up independent evaluation and assessment of the employee by their own mechanism, keeping the employee under 3 (three) months observation period with a speaking order on the same .”

¶184

(Emphasis supplied)

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¶187

20. In Pravat Kumar Mishra (supra), vide paragraph

¶188

Nos.1, 6, 14 and 20, the Coordinate Bench of this Court held as follows:

¶189

“ 1. The petitioner, who was working as Assistant Director, MIS under Orissa Primary Education Programme Authority (in short hereinafter referred to as OPEPA) has filed this application challenging his termination from contractual engagement with immediate effect as per Rule-28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 by giving him one month’s salary in lieu of one month notice pursuant to office order dated 09.04.2015 vide Annexure-1.

¶190

6. On perusal of Annexure-1, it appears that the entire action has been taken against the petitioner following an enquiry caused on the allegation. Therefore, the action taken in terminating the services of the petitioner is not a termination simplicitor . Therefore, the rule as contemplated in Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996 mentioned above are not applicable to the petitioner. Rather, the action of the authorities is absolutely punitive one inasmuch as the purport of the office order clearly indicates that following an inquiry the action has been taken against the petitioner with his immediate termination from contractual engagement as per Rule 28(i) (iv) (a) (b) & (c) of OPEPA Service Rules and Regulations, 1996.

¶191

14. Therefore, in view of the law laid down by the apex Court, the impugned order passed without complying with the principles of natural justice is non est in the eye of law since no opportunity has been given before passing the order of termination under Annexure-1 . More so, in R. Sulochana Devi (supra), the apex Court held considering the judgment in Krishan Lal v. State of J & K. (1994) 4 SCC 422 that an order passed in violation of the principles of natural justice renders the same invalid. Likewise, an order made without hearing the party affected is also bad in law. Applying the said principle to the present context, it appears that the order in Annexure-1 has been passed in violation of the principles of natural justice. Therefore, the same is void and as such it is a nullity in the eye of law.

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20. Accordingly, this Court sets aside the order passed in Annexure-1 dated 09.04.2015 and directs the opposite party to take the petitioner immediately into services and grant all consequential benefits as due admissible in accordance with law as if he has continued in service.”

¶195

(Emphasis supplied)

¶196

21. In Monalisa Behera (supra), vide Paragraph Nos.2 & 6,

¶197

the Coordinate Bench held as follows:

¶198

“ 2. The Petitioner, who was working as Part Time Guest Instructor on contractual basis has filed this writ application challenging the Order Dated 1.2.2011 passed by Opp. Party No.3 in Annexure 11 on the allegation that the said order has been passed without following the principles of natural justice .

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6. As the order impugned has been passed on the next day of the inspection without affording an opportunity of hearing to the Petitioner, we are of the opinion, even if the Petitioner is not a regular employee, the principle of natural justice demands that the authority should have afforded an opportunity of hearing to the Petitioner before taking action which would ultimately involve civil consequence and prejudicially affect the Petitioner (See: Smt. Maneka Gandhi V. Union of India and Anr. MANU/SC/0133/1978: AIR 1978 SC 597).”

¶200

(Emphasis supplied) 22. In Ramesh Sahoo (supra), vide Paragraph Nos.2, and

¶201

12 to 15, the Coordinate Bench held as follows:

¶202

“ 2. The brief facts leading to filing of this writ petition are that the opposite party no.3 issued an advertisement to fill up the post of Cook. Pursuant to such advertisement, the petitioner submitted his application and the same having found in order he was issued with a call letter on 25.06.2009 to participate in the process of selection. Thereafter, the petitioner was selected and appointed as Cook in the office of opposite party no.3-Commandant, Special Operation Group,

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Chandaka, Bhubaneswar, vide appointment letter issued on 21.08.2009, on contractual basis for a period of six years . While the petitioner was discharging his duties, on 23.04.2011, he was selected for a Special Training Course, i.e., PCIC-39 to be held in the Training Centre, National Security Guard, Maheswar Post, Gurgaon, Haryana. While he was on duty under SOG, the petitioner suffered from serious fever and jaundice and treated by the Doctor of CHC, Papadahandi in the district of Nabarangpur on 02.09.2013. As he could not be cured by the treatment, the doctor advised him for referral treatment and also bed rest. Consequentially, he applied for leave to Team in-charge Officer, Dy. Subedar, Papadahandi in the district of Nabarangpur which was also sanctioned, as he was suffering from jaundice and fever.

¶206

12. In Karunakar Khandapani (supra), this Court already held that termination of service of the petitioner having been one without following due procedure of law and without complying the principles of natural justice, the order of termination cannot be sustained , and by so holding this Court quashed the order of termination issued against the petitioner and directed that the petitioner is deemed to be continuing in service.

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13. In Pravat Kumar Mishra (supra), this Court, relying upon the judgment rendered in the case of Karunakar Khandapani (supra), held that the order impugned passed without complying the principles of natural justice, is non est in the eye of law, since no opportunity was given before passing the order of termination. In the said case, this Court also placed reliance on the decisions of the apex Court in the cases of R. Solochan Devi v. D.M. Sujatha , AIR 2005 SC 4152 and Krishan Lal v. State of J&K , (1994) 4 SCC 422, by which the apex Court has held that an order passed in violation of the principles of natural justice renders the same invalid. Reliance was also placed on the judgment delivered in K. Khandapani (supra) and it was held that since the petitioner faced termination without following due procedure of law and without complying with the principles of natural justice, the order impugned cannot sustain .

¶208

14. Applying the aforesaid principles to the present context, it can be safely held that the order of automatic termination/discharge of the petitioner from service has been passed in violation of

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principles of natural justice and, therefore, the same is void and is a nullity in the eye of law.

¶212

15. In view of such position, even though the petitioner was appointed as Contractual Cook, but without giving him any opportunity of hearing his automatic termination/discharge from service cannot have any justification. Thereby, Clause-(ii) of the office memorandum dated 23.06.2012 in Annexure-8 issued by the Finance Department of the Govt. of Odisha is held to be ultra vires to Articles 14 and 16 of the Constitution of India. As a result thereof, the order dated 27.02.2019 passed by the Tribunal in O.A. (C) No. 2845 of 2015 confirming the order of termination/discharge passed by the authority in Annexure-14 without considering the rudiments of law, cannot sustain and the same is liable to be quashed and is hereby quashed. Consequentially, the order of automatic termination/discharge issued in favour of the petitioner on 06.11.2013 under Annexure-7, so far as it relates to the petitioner, also cannot sustain in the eye of law and the same is liable to be quashed and is hereby quashed, as the same has been passed without following due procedure of law and is in gross violation of the principles of natural justice . The opposite parties are directed to allow the petitioner to join in service and extend all consequential service and financial benefits admissible to him, by notionally fixing the same, from the date of joining, as this Court has already held that automatic termination/discharge of the petitioner from service is bad in the eye of law.”

¶213

(Emphasis supplied)

¶214

23. In State of U.P. (Supra), vide paragraph-11, the apex Court has observed as follows:

¶215

“11. As per the order of termination, the services of the respondent were terminated on the ground that his services were not required. At the same time, it is not disputed that his juniors were retained in service. Termination of the services of the respondent while retaining his juniors in service was sought to be justified on the ground that he was found unsuitable in view of the criminal case registered against him. Hence, it was not a termination simpliciter. But before holding that he was unsuitable and terminating his services, no notice was issued to the respondent and no enquiry was conducted and he was not given any opportunity of

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being heard. Therefore, the impugned termination of service was in violation of the principles of natural justice, illegal and arbitrary. It also offended the provisions in Art. 311(2) of the Constitution of India. Hence, the Tribunal was justified in quashing the order of termination of service of the respondent and the High Court rightly refused to interfere with the order of the Tribunal. The fact that the respondent was subsequently convicted by the criminal court and the matter is pending in appeal will not change the legal position regarding the illegality of the impugned order of termination of service.”

¶219

(Emphasis supplied)

¶220

24. In GRIDCO Limited (Supra), vide paragraphs-3,9,10

¶221

& 26, the apex Court has observed as follows:

¶222

“ 3. The questions are:

¶223

1. What was the true nature of the appointment of the respondent? In particular, was the appointment regular or simply contractual in nature? and

¶224

2. If the appointment was contractual, was the termination thereof vitiated by any legal infirmity to call for interference under Article 226 of the Constitution?

¶225

9. Aggrieved by the termination of his services, respondent no.1 filed a writ petition in the High Court of Orissa for issue of a Writ of Certiorari quashing the same on several grounds. A learned Single Bench of the High Court, however, dismissed the said petition holding that the appointment of the writ petitioner, respondent herein, being purely temporary and contractual in nature and the termination being in no way stigmatic, the respondent had no legal right to claim continuance in service. The writ petition was, on that basis, dismissed .

¶226

10. Respondent No.1 then filed Writ Appeal No.11 of 2003 which was heard and allowed by a Division Bench of the High Court of Orissa in terms of the impugned judgment and order. The Division Bench held that `introduction of a contractual condition' in a regular appointment under the State was opposed to the principles of Articles 14 and 16 of the Constitution, and that the freedom of contract was rendered illusory by an unequal bargaining power between a citizen seeking appointment

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to public service on the one hand and a giant employer like a State Corporation on the other. The order passed by the learned Single Judge was on that reasoning set aside by the High Court and the order terminating the services of respondent No.1 quashed.

¶230

26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A 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 . Having said that we must add that 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 a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.”

¶231

(Emphasis supplied)

¶232

25. On examining the judgment cited by the

¶233

State/Opposite Parties, it is found that the facts and circumstance of the said case are different from the present case. Hence, not applicable.

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26. From the pleadings of the parties as detailed above so also the submissions made by the learned Counsel for the Petitioners, it is amply clear that as per Clause-iv of guidelines dated 01.10.2011 (Annexure-B/3), all the staff, whose remarks are recorded as “Outstanding/Very Good/Good”, may be allowed to continue into the service and shall discharge all functions after completion of contract period pending renewal. However, in case of those staff, whose performances are recorded as “Poor/Average”, the concerned reporting officer should give adequate justifications to substantiate such remarks and the concerned staff should be refrained from exercising any financial powers till receipt of order of renewal of their contract from the Mission Directorate. Similarly, in terms of Clause-vii of the said guidelines, those employees whose performances are rated as “Good”, they should be given a warning letter to improve their performance in future. Whereas, in terms of Clause-ix of the

¶237

said guidelines, those employees, whose performances are rated as “Poor”, their contractual services shall not be renewed.

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27. Office Orders dated 05.01.2016 so also dated

¶241

23.02.2016, as at Annexures-9 series & 10 respectively, show that the PAR of the Petitioner was rated as “Good”. Further, it is well evident from Officer Order dated 05.01.2016, as at Annexure-9 series, that the Contract Renewal Committee, based on the remarks received on the individual performances reflected in the PARs of the petitioner, allowed the renewal of his contract with retrospective effect from 4^th

¶242

December, 2015. Thereafter, vide communication dated 23.02.2016 as at Annexure-10, it was communicated to the Petitioner that as per the remarks received vide his previous PARs for the period from 2014-15 & 2015-16, his performances were rated as “Good” in both the PARs. Accordingly, the Petitioner was warned and given opportunity to improve his performance by 3^rd March, 2016, as his contract period was extended up to the said date indicating therein that if he fails to improve, no further renewal of his engagement contract will be accepted. But surprisingly, the termination order was passed immediately four days thereafter i.e. on 27.02.2016. The said conduct of the Opposite parties being contrary to the circular dated

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01.10.2011 so also Office Order dated 10^th April, 2015, as quoted above, this Court is of the view that the order of termination dated 27.02.2016, as at Annexure-12, is illegal and liable to be set aside.

¶246

It may not be out of place to mention here that, though in para-9 of the Counter, it was admitted that the PAR of the Petitioner was good, but contrary to the said admission, in para-13 of the said Counter, a stand has been taken that PAR of the Petitioner was rated as “Poor” for which his service was

¶247

not renewed. Such stand of the State/Opposite Parties is contrary to the contents of letter dated 23.02.2016 (Annexure-10), vide which not only it was indicated that PARs for the period from 2014-15 and 2015-16 were rated to be “good” but also he was given opportunity to improve his performance by 3^rd March, 2016.

¶248

Further, the so called enquiry was conducted after terminating the services of the Petitioner, on getting his grievance petition, as has been admitted in para-7 of the Counter read with the Report dated ‘Nil’ as at Annexure-C/3. The services of the Petitioner was terminated w.e.f. 03.03.2016 vide letter dated 27.02.2016 (Annexure-12),

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whereas the alleged enquiry was conducted by the term on 12.05.2016 and 04.08.20106. Such report also does not disclose any date on which it was signed and submitted by the officers of NHM, who were members of the said team. In view of the stand taken by the State/Opposite Parties in its Counter that the action was taken based on enquiry conducted by the Medical Officer of Dhamnagar C.H.C., no Show Cause being issued to the Petitioner for such alleged misconduct, this Court is of the view that there is violation of principles of natural justice as the alleged enquiry was conducted after terminating the services of the Petitioner, as has been observed above.

¶252

Apart from the same, decision of the Contract Renewal

¶253

Committee, being contrary to the order dated 10.04.2015 of the Mission Director, National Health Mission, Odisha (Annexure-B/3) so also settled principles of law, this Court is

¶254

of further view that even though the Petitioner was appointed on contractual basis, there cannot be automatic termination

¶255

of service without affording an opportunity of hearing and following the principles of natural justice. Hence, the action of the authority concerned, being illegal and unjustified, the

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impugned order dated 27.02.2016, as at Annexure-12, is hereby set aside. The Opposite Party No.3 is directed to reinstate the Petitioner in his previous post and position, which he was holding as on 27.02.2016, within a period of two weeks from the date of communication of the certified copy of this order in terms of the scheme introduced by the Central Government, if the same is still in vogue.

¶259

So far as the direction for payment of consequential

¶260

service benefits, this Court is of the view that since the appointment of the Petitioner was schematic so also contractual and he has not worked after his disengagement with effect from 27.02.2016, he is to be reinstated, as directed above, with continuity of service on notional basis.

¶261

So far as direction for release of unpaid arrears, in view of specific averments made in para-20 of the Counter Affidavit that the arrears have already been paid to the Petitioner through PFMS and the same has not been disputed/denied by the Petitioner in his Rejoinder Affidavit, the said prayer having become infructuous, no direction is necessary in the said regard.

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28. With the aforesaid observation and direction, the Writ Petition stands disposed of. However, there shall be no order as to cost.

¶265

…….….……………………

¶266

S.K. MISHRA, J.

¶267

Orissa High Court, Cuttack
The 19 th December, 2023 /Prasant

¶268

Signature Not Verified

¶269

Digitally Signed Signed by: PRASANT KUMAR PRADHAN W.P(C) No.6888 of 2016 Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Dec-2023 18:34:07

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Page 40 of 40

Kishore Ch.Panda v. State of Orissa

Case brief

What is this about?

What did the court decide?

Kishore Ch.Panda v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

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