Dismissed

Ravi Ranjan Kumar v. The State Of Bihar and Ors.

Patna HC7 Aug 2015CWJC/12088/2015

Case brief

AI extract

What is this about?

Petitioner challenged termination from a contractual appointment on grounds of natural justice violation and malafide. The court rejected malafide claims against the unimpleaded respondent and held that contractual employees are not protected by Article 311. The petition was dismissed as barred by delay since the file was quo warranto the contract had expired.

What did the court decide?

Impugned termination order dated 11.01.2014 dismissed as application barred by delay and laches having no merit.

Ravi Ranjan Kumar Vs The State Of Bihar and… — Contract and Commercial Disputes | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12088 of 2015

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====================================================== Ravi Ranjan Kumar son of Sri Jaleshwar Singh, R/o Mohalla Babaliya Road, Noorsarai, P.S. Sasaram, District Rohtas at Sasaram.

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.... .... Petitioner/s

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Versus 1.The State of Bihaar through Principal Secretary, Rural Development Department, Government of Bihar. 2.The District Rural Development Agency through its Deputy Development Commissioner, Rohtas at Sasaram. 3.The Deputy Development Commissioner, Rohtas at Sasaram. 4.The District Magistrate, Rohtas District Rohtas at Sasaram. 5.The Block Development Officer, Kargahar, District Rohtas at Sasaram.

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.... .... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Dinu Kumar, Adv Mr. Rajesh Kumar Singh, Adv, Mr. Rajesh Kumar Singh, Adv Mr. Santosh Kumar, Adv For the Respondent/s : Mr. Deepak Sahay Jamuar AAG6 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT

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2 07-08-2015 Heard learned counsel for the parties.

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The prayer of the petitioner in this writ

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application reads as follows:-

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“For quashing the office vide memo no. 17 dated 11.01.2014 issued under the signature of Deputy Development Commissioners, Rohtas at Sasaram as contained in Annexure-7 by which the petitioner has been discharged with immediate effect to the post of Executive Assistant, Block Kargahar.

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Also for directing to give the consequential effect for the period of termination/dispensed with from the service.”

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Mr. Dinu Kumar, learned counsel appearing on

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behalf of the petitioner in support of the aforementioned

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prayer has basically concentrated on the aspect that the

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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impugned order is bad because the petitioner was never served with specific show cause notice as with regard to his performance in course of his appointment to be bad. In this regard, he has relied on paragraph no. 12 and 13 of the writ petition, which for the sake of clarity and convenience is quoted hereinbelow:-

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“That before issuance of the order vide memo no. 71 dated 11.01.2014 issued by the Deputy Development Commissioner, Rohtas at Sasaram, as contained in Anneuxre7 the petitioner was not given show cause notice by Deputy Development Commissioner, Rohtas at Sasaram as to why the petitioner be not terminated/dispensed with on the reason the petitioner has not responded to the Block Development Officer, Kargahar against the explanation and the petitioner is not attending in office in time and taking interest resulting delay in work of Indra Awas Yojna on this ground alone termination order issued by the Deputy Development Commissioner, Rohtas at Sasaram memo no. 71 dated 11.01.2014 as contained in Annexure-7 is against the principles of natural justice on this ground alone impugned order as contained in Annexure- is fit to quashed in the ends of justice.

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That the petitioner states and submits that on point of time Block Development Officer, Kargahar or Deputy Development Commissioner, Rohtas at Sasaram has asked explanation mentioning therein the petitioner is not attending the office and taking interest on the reason the petitioner has one computer shop of teaching/institution at Sasaram and this fact has come first time in termination order as contained in Annexure-7 by Deputy Development Commissioner, Rohtas at Sasaram which proves malafide intention of the Deputy Development Commissioner, Rohtas at Sasaram in terminating the service of the petitioner upon the request of the Block Development Officer, Kargahar against whom the petitioner has brought facts to the District Magistrate, Rohtas at Sasaram about the financial indiscipline in Indra Awas Yojna on this score only termination order passed by the Deputy Development Commissioner, Rohtas at Sasaram as contained in Annexure-7of the writ application is not fair action, on this score only Annexure-7 is fit to be quashed in

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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the ends of justice.”

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Mr. Dinu Kumar, next has contended that the malafide on the part of the Block Development Officer, becomes manifest from perusal of Annexure-8, the wage statement of the petitioner, which will go to show that the Block Development Officer had paid him wages on daily rate basis whereas his order of appointment was on monthly fixed emoluments. According to him, the payment of wages by reducing on daily wages itself will not only violate the terms and conditions of the appointment letter to show that the Block Development Officer was somehow biased against the petitioner. Finally, he has submitted that even when the petitioner had filed exhaustive petition highlighting arbitrariness and illegalities committed by the Block Development Officer, no action has been taken against him and only the petitioner has been removed from service by way of impugned order.

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Before this Court would go into the merits of the case, it must reject the plea of malafide raised by the

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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learned counsel for the petitioner. The petitioner has sought to make out a specific allegation against the Block Development Officer, but he has not been impleaded as party by name to this writ application. By now it is well settled that it is very easy to make allegation of malice on fact but very difficult to prove it. Probably the petitioner could not have mustered some evidence against the Block Development Officer by impleading him by name as a party to this writ application as he was afraid that if he would make him party to this writ application and this Court would call upon him, the Block Development Officer who could disclose his deeds and misdeeds.

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This Court therefore following the ratio laid down by the Apex Court in the case of C.S. Rowjee Vs. State of Andhara Pradesh reported in 1964 SC 862, must reject the plea of personal malafide because the Block Development Officer has not been made party by name inasmuch as the Apex Court in this regard has held as follows:-

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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"It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent time. It is also somewhat unfortunate that allegations of this nature which have no foundation in fact, are made in several of the cases which have come up before this and other courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of it at least might stick. Consequently it has become the duty of the Court to scrutinize these allegations with care so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus cast on the courts it would conduce to a more satisfactory disposal and consideration of them, if those against whom allegations are made came forward to place before the court either their denials or their version of the matter, so that the court may be in a position to judge as to whether the onus that lies upon those who make allegations of mala fides on the part of authorities of the status of those with which this appeal is

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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concerned, have discharged their burden of proving it. In the absence of such affidavits or of materials placed before the Court by these authorities, the Court is left to judge of the veracity of the allegations merely on tests or probability with nothing more substantial by way of answer."

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As with regard to the next submission that the salary of the petitioner could not have been made on daily wages, such submission has to be again noted for its being rejected. True it is that the petitioner’s engagement was made for the period of 11 months on fixed monthly salary. As per the absentee statement, if a person engaged on monthly wages is not present in the Office on a particular day, his salary for that day must be deducted from his salary while making payment on pro rata basis of monthly wages by computing of the days of office attendance by a person though he may continue on contract basis of monthly salary. That however will not in any way show malafide. To that extent, this Court cannot find anything from Anneuxre-8, which only

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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shows the period of five months, when the petitioner was paid his salary for 10 days, 25 days, 27 days, 26 days and 26 days respectively and the same was in accordance with the terms and conditions of the appointment letter fixing monthly wages.

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The petitioner also cannot be heard to say that even he will come to office for one day in the month he will have to be paid full wages for the entire month. The doubt as to whether the petitioner was paid salary for ten days and he did not question the same by approaching the Deputy Development Commissioner, will only go to show that the petitioner concurred with the order of the Block Development Officer as with regard to deduction of his pay and therefore, this Court cannot make out anything more from this payment order issued by the Block Development Officer.

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Coming next to the issue as to a show cause notice should have been given to the petitioner, this Court will have to firstly look into as to what was the terms and conditions of the appointment of the

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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petitioner. The petitioner was not a regular Government servant protected by the principles of Article 311(2) of the Constitution of India. The petitioner was merely working on contract basis. Clause-2 of his appointment letter dated 08.07.2013, had meant nothing but his such continuation was only for a period of 11 months i.e till 07.06.2014. Such clause also very clearly stipulated that in the event of requirement of service in future and the work of the petitioner to be found satisfactory, extension of service could be given to him. It is here on the basis of the impugned order, it will have to be recorded that the services of the petitioner were not found satisfactory for being extended, this Court would find that there was not only the report of the controlling officer of the petitioner but even the show cause was specifically asked from the petitioner by the Deputy Development Commissioner, who had passed the impugned order. Such show cause notice clearly had given liberty to the petitioner to explain as to why he was not taking interest in the work. The content of such show cause notice as

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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contained in Annexure-5 being relevant is quoted

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hereinbelow:-

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^^ftyk xzkeh.k fodkl vfHkdj.k jksgrkl] lklkjkeA i=kad 2487@ft0 xzk0 fnukad 02@12@13

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izsf"kr&

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jfo jatu

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dk;Zikyd lgk;d ¼bfUnjk vkokl ;kstuk½

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iz[kaM& djxgj

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fo"k;& dk;Z esa :ph ugha ysus ds laca/k easA

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iz[kaM fodkl inkf/kdkjh us vius i=kad 2101 fnukad 21-11-13 ds }kjk lwfpr fd;k gS fd vki dk;kZy; le; ls ugha vkrs ,oa dk;Z esa :ph ugha ysrs gSA bl laca/k esa tc vkils Li"Vhdj.k iwNk x;k rks vkids }kjk Li"Vhdj.k dk tcko ugha fn;k x;kA vkids mDr O;ogkj ds dkj.k iz[kaM esa vkokl lkWQV dk;Z izHkkfor gks jgk gSA

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vr% funs'k fn;k tkrk gS fd mDr foUnqvksa ij viuk Li"Vhdj.k nks fnuksa ds vanj v|ksgLrk{kjh dks Hkstuk lqfuf'pr djsaA

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Let it be noted that the petitioner had claimed

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to have filed its reply but the copy thereof has not been enclosed with the writ petition. What has been enclosed is his representation dated 26.12.2013, addressed to the Collector. The Collector had never issued show cause

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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notice to him and therefore, this Court will have no difficulty in approving the impugned order.

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The impugned order passed by the Deputy Development Commissioner being relevant is also quoted hereinbelow:-

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^^ftyk xzkeh.k fodkl vfHkdj.k] jksgrkl ¼lklkjke½ vkns'k

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iz[k.M fodkl inkf/kdkjh djxgj us vius i=kad 2101 fnukad 21-11-2013 ds }kjk lwfpr fd;k gS fd bafnjk vkokl ;kstuk ls lacaf/kr dk;Zikyd lgk;d Jh jfojatu dqekj lle; dk;kZy; ugha vkrs gSa ,oa dk;Z eas :fp ugha ysrs gSA iz[kaM fodkl inkf/kdkjh }kjk ;g Hkh izfrosfnr fd;k x;k fd Jh dqekj ls Li"Vhdj.k dh ekax dh x;h ijUrq muds }kjk dksbZ tokc ugha fn;k x;k ,oa u gh dk;Z O;ogkj esa lq/kkj yk;k x;kA

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mDr vkjksi ds vkyksd esa Jh jfojatu dqekj] dk;Zikyd lgk;d ls bl dk;kZy; ds Kkikad 2482 fnukad 21-11-2013 }kjk Li"Vhdj.k dh ekax dh x;hA Jh dqekj }kjk Li"Vhdj.k lefiZr fd;k x;k] ftlesa mUgksaus Lo;a ds fo:n~/k yxk, x, vkjksiksa ds laca/k esa lQkbZ nsus ds ctk; iz[k.M fodkl inkf/kdkjh ij bafnjk vkokl esa vfu;ferrk dk vkjksi yxk;k x;k gSA ;fn iz[kaM fodkl inkf/kdkjh }kjk bafnjk vkokl vkoaVu esa vfu;ferrk dh tk jgh Fkh rks bldh lwpuk rRdky nh tkuh pkfg, Fkh tks muds }kjk ugha nh x;hA bl dk;kZy; }kjk Li"Vhdj.k iwNs tkus ij muds }kjk mDr lwpuk miyc/k djk;h x;hA Jh dqekj dk Li"Vhdj.k muds dk;Z {ks= dh ifjlhek ls ijs gSA Li"V gS

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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fd Jh dqekj us Hkze mRiUu djus ds mn~ns'; ls vius Li"Vhdj.k esa mDr rF;ksa dks vafdr fd;k gSA mudk Li"Vhdj.k Lor% mudh vuq'kklughurk dk ifjpk;d gS ,oa Lohdkj djus ;ksX; ugha gSA mYys[kuh; gS fd ftyk Lrjh; cSBkdsa esa Hkh iz[ksM fodkl inkf/kdkjh }kjk dbZ ckj Jh dqekj dh vuqifLFkfr ds laca/k esa ekSf[kd :i ls izfrosfnr fd;k x;k gSA iz[kaM fodkl inkf/kdkjh }kjk ;g Hkh crk;k x;k gS fd Jh dqekj dh lklkjke esa dEI;wvj las lacaf/kr dksbZ nwdku@f'k{k.k laLFkk gS ftl dkj.k os dk;kZy; fu;fer :i ls ,oa le; ij ugha vk ikrs gSA

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vr% Jh jfo jatu dqekj dk;Zikyd lgk;d] ia[kaM djxgj dks lle; dk;kZy; esa miyC/k ugha djus ,oa dk;Z esa okafNr :fp ugha ysus ds dkj.k rRdky izHkko ls dk;Z ls ineqDr fd;k tkrk gSA

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g0@&

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mi fodkl vk;qDr jksgrkl] lklkjke

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Kkikad 71 @ ft0 xzk0] fnukad 11@01@2014**

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The question therefore would arise that when

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a contractual employee becomes too big beyond his boots and starts questioning and starts making baseless allegation against his superior officials is it necessary for

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the authority to retain such person on contract basis? The answer obviously would always be in negative. A contractual employee who survives by his conduct for

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Patna High Court CWJC No.12088 of 2015 (2) dt.07-08-2015

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the limited period, if he did not want to work he can definitely do so but not by continuing in the service and the petitioner being found thoroughly in competent has been correctly removed from service on 11.01.2014. Today, when the tenure of 11 months has come to a end on 07.06.2014, this writ application filed on 06.08.2015, questioning the impugned order dated 11.01.2014 must be held to be barred by the principles of delay and laches.

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Thus, for the reasons indicated above, this Court does not find any merit in the application and the same is, accordingly, dismissed.

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(Mihir Kumar Jha, J)

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Ranjan/U

Ravi Ranjan Kumar v. The State Of Bihar and Ors.

Case brief

What is this about?

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Ravi Ranjan Kumar v. The State Of Bihar and Ors.

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