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V.P. Rajmohan v/s Union of India, represented by Secretary to Government of India, Ministry of Communication & Information Technology, New Delhi & Others


Company & Directors' Information:- INDIA INFORMATION TECHNOLOGY LTD [Active] CIN = U74140DL1992PLC048211

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- NEW COMMUNICATION TECHNOLOGY PVT LTD [Active] CIN = U31909GJ1989PTC012512

Company & Directors' Information:- C H C INFORMATION TECHNOLOGY LIMITED [Strike Off] CIN = U72200WB2001PLC093126

Company & Directors' Information:- V R INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72900MH2000PTC128632

Company & Directors' Information:- K. K. INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72200OR2009PTC011100

Company & Directors' Information:- S A I S INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72100TN2010PTC075284

Company & Directors' Information:- S H INFORMATION TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC135610

    Original Application Nos. 180/00881 of 2016

    Decided On, 31 May 2017

    At, Central Administrative Tribunal Ernakulam Bench

    By, THE HONOURABLE MR. JUSTICE N.K. BALAKRISHNAN
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. P. GOPINATH
    By, ADMINISTRATIVE MEMBER

    For the Applicant: Sukumar Ninan Oommen, Advocate. For the Respondents: N. Anil Kumar, Senior PCGC.



Judgment Text

N.K. Balakrishnan, Judicial Member.

1. Annexure A21 order dated 4.10.2016 which states that the applicant who was engaged in CDAC as Project Service &Support-I from 29.9.2010 stood relieved of his duties with effect from 30.9.2016 (AN) on completion of contract assignment. The applicant contend that he is an Ex-Serviceman who served the IAF for 20 years. He wasdischarged as Sergent on 31.1.2002. He got himself registered with the Kerala State Ex-Services League vide Annexure A2. He had served CDAC for 4 years from 25.9.2006 to 26.9.2010 as Administrative Assistant. The duties and responsibilities of Administrative Assistant were similar to the duties and responsibilities of similar employees in CDAC. The performance of the applicant was satisfactory. His appointment to the post was on contract basis for a period of one year on monthly consolidated sum of Rs. 7500/-. That contract was extended till 31.12.2012. The post of Administrative Assistant (A) was re-designated as Project Service & Support-I. The applicant was relieved on 31.12.2014 and was again appointed on contract basis for a period of one year from 1.1.2015 to 31.12.2015. Third respondent extended his contact for a period of six months from 1.1.2016 to 30.6.2016 and again for a further period of three months from 1.7.2016 to 30.9.2016. There was an inherent promise by the respondents of a career in CDAC. The recruitment was done in accordance with Clause 22 of the guidelines. There was a promise to continue the contract if the performance of the applicant was satisfactory. The respondents had no option to terminate the contract when the applicant's performance was to their satisfaction. The order of termination is in violation of the fundamental rights, statutory provisions, rules and other instructions and thus the applicant moved this Tribunal to stay the operation of Annexure A21 order and to permit him to perform the duties assigned.

2. The respondents resisted the claim contending as follows. The applicant was relieved from CDAC on completion of contractual period. The applicant was not victimized or discriminated against nor was any hostile treatment meted out to him. Annexure A21 was issued on completion of the tenure of his contract assignment in compliance with the rules, guidelines and bylaws of the society. The assignment given to the applicant was purely on temporary basis. Further assignment was offered considering exigencies of work in hand and to meet the ongoing requirement. That does not imply renewal of a contract automatically. As per Clause 15 of the guidelines it is clearly stated that contractual appointment as per the agreement is time bound and is not regular in nature for specified duration and at the end of the contractual period he shall not derive any right or claim for a regular post in CDAC. The contractual assignment came to an end on 31.12.2014 on expiry of the agreement as can be seen from Annexure A9. A fresh letter of agreement was executed between the applicant and the respondentdepartment. Clauses 7 and 16 therein reiterate the same features of contractual assignment which is temporary and it does not accord any right to the applicant to claim regular employment beyond the period of agreement. During his tenure, salary of the applicant was paid by an outsourcing agency. During such time as per the need and requirement the respondents had obtained services of many personnel through outsourcing so as to meet the needs of the organization for timely execution and completion of its various projects. After completion of the respective projects, the incumbents used to be relived from engagement. In 2009, some guidelines pertaining to the recruitment of project based technical and non technical staff on contract and consolidated salary basis were published (vide Annexure A15). Clause 2 therein deals with such appointment. The respondents have not, at any point of time, expressly or impliedly made any promise of a career to the applicant in CDAC. The appointment of the applicant was fully in line with ‘2009 guidelines’.

3. The applicant had affixed his signature every time to the letter of agreement after having read through the clauses herein. He was relived from the post on completion of the contract period. No further offer was made for extending his contractual engagement. The applicant was relieved because the contract came to an end. It is not a question of termination. Therefore, the respondents contend that this OA is only to be dismissed.

4. We have heard the learned counsel appearing on both sides and have gone through the pleadings and documents.

5. The point for consideration is whether Annexure A21 impugned order contravenes the guidelines or violates any fundamental or constitutional right as contended by the applicant?

6. The fact that the applicant is an ex-serviceman and had served the IAF for 20 years from 20.1.1982 to 31.1.2002 is not in dispute. Annexure A1 is the discharge certificate dated 31.1.2022. It is also not in dispute that he got himself registered with Kerala Ex-Services League as can b seen from Annexure A2 and that as sponsored by them, the applicant had served CDAC during the period from 25.9.2006 to 26.9.2010. At that time the applicant had worked as Administrative Assistant (A). Annexure A3 certificate issued with respect to the same has been relied upon by the applicant to contend that he had experience by serving in CDAC. Annexure A34 certificate itself will make it clear that he had worked with CDAC only on contract basis through the Kerala State Ex-Services League for the period from 25.9.2006 to 26.9.2010. Therefore, the fact that the applicant had worked on contract basis on an earlier occasion will not confer on the applicant any right to get continuation of service in CDAC.

7. Annexure A4 is the employment notice. Clause 6 therein relates to Administrative Assistant-A. There were 13 posts. There also it is stated that the remuneration in lumpsum was Rs. 7500/-. That makes it clear that it was not a regular appointment but only a contractual and temporary employment for which a monthly lump sum payment of Rs. 7500/- was paid.

8. Annexure A5 is the subsequent order dated 23.9.2010 issued by the CDAC which is actually an offer for contract assignment as Administrative Assistant. There are seven clauses/conditions in the offer of contract assignment. All those clauses would make it clear that the assignment was purely on a temporary basis initially for a period of one year from the date of joining, extendable upto a maximum period of three years at a time. The learned counsel for the applicant wanted to have an interpretation that at a time the extensions should have been for a period of three years. That is not what can be understood from the language used. The maximum period of extension can be only for three years. It does not mean that at a time it should be extended for a period of three years. Again in Clause 3 it is stated that the assignment of the applicant is purely temporary and that the same will not confer on the applicant any right or claim for any further appointment with CDAC either temporary or permanent or otherwise. It is also stated that what was to be paid was a consolidated remuneration of Rs. 7500/-. Clause 11 therein states that the service of the applicant shall stand automatically terminated on expiry of the period of appointment. Therefore, Annexure A5 itself will make it clear that it was only an appointment for a specified period and it was purely temporary. What was paid to the applicant was only a consolidated remuneration. It was not on a running pay scale. Annexure A6 is the letter dated 28.9.2011 by which the period of assignment as Administrative Assistant was extended. It was stated that the assignment as mentioned above was extended from 26.9.2011 to 31.12.2012 and then also it was stated that he would be paid only a consolidated remuneration of Rs. 7500/-. It was made clear that all the terms and conditions stated in Annexure A5 will be applicable to the applicant.

9. Annexure A7 is the letter dated 31.12.2012 by which the pplicant who was engaged in CDAC was relieved of his duties w.e.f. 31.12.2012 on expiry of the contract assignment. Annexure A8 is another letter of agreement dated 28.12.2012 where also it was stated that the applicant would be paid only a consolidated salary of Rs. 7880/-. It was specifically stated that what was offered is a contract assignment for the period from 1.1.2013 to 31.12.2014 considering the exigencies of work in hand and to meet the ongoing project requirements at CDAC on the terms and conditions stated therein. A reading of the terms and conditions would make it abundantly clear that it was purely a contractual engagement for a specified period as stated therein. There is nothing to indicate that there was any promise or anything of that sort so as to contend that there was a legitimate expectation that he would be conferred appointment on regular basis. There can be no such appointment in public undertakings as it would be termed as 'back-door entry' especially because it has been held by the Hon'ble Supreme Court in a catena of decisions that such back door entries cannot be permitted at all. Here, it is purely a case of contractual appointment for a fixed terms. It was especially mentioned in all the documents that the appointment is purely temporary and that the persons engaged there under would be bound by the guidelines mentioned therein. Annexure A9 is another relieving order dated 31.12.2014 which says that the applicant who was engaged in CDAC was relieved of his duties is w.e.f. 31.12.2014 on expiry of the contract assignment. Therefore, that also would make it manifest that the engagement of the applicant was only on contract assignment and there was no promise of granting any sort of future employment. It was so specified in all the orders and letters issued to the applicant.

10. The respondents contend that the applicant had served in Indian Air force for 20 years and he is a well educated person and so the contention that he was unaware of the rules or regulations cannot be countenanced at all. Annexure A10 is another letter of agreement dated 24.12.2014 which also shows that what was offered was a contract assignment as Project Service and Support One in purchase section CDAC Trivandrum for a period of one year from 1.1.2015 to 31.12.2015 and that it was done considering the exigencies of work in hand and to meet the ongoing project requirements at CDAC. Similar conditions as mentioned in Annexure A8 are noted in Annexure A10 as well. It is mentioned therein that the applicant would be assigned work from time to time by the competent authorities of CDAC depending upon the requirements of the project and activities of the Centre consistent with the qualifications and capabilities of the applicant. Clause 12 and several other clauses in this agreement (Annexure A10) would also make it clear that it was only a contractual assignment for a specific period of one year. It does not confer on the applicant any right of continuance of service as pleaded by him.

11. Annexure A11 is another reliving order dated 16.11.2015 which shows that the applicant was relieved of his duties in PHS Section w.e.f. 16.11.2015 and that he was to report to the Group/section Head TPC for further instructions. Annexure A12 is the letter of agreement dated 22.12.2015 which shows that the applicant was given contract assignment in the projects associated with Technology promotion Centre for six months from 1.1.2016 to 30.6.2016. Which also was done considering the exigencies of work and to meet the on ongoing project requirements at CDAC. Learned counsel for the respondents would submit that all these documents would make it abundantly clear that the applicant was provided another contract assignment for another project work, that too only for a period of six months. This document would also make it clear that the engagement was purely contractual and that the said agreement (Annexure A12) does not imply renewal of contract automatically unless explicitly renewed or extended by a formal written communication. Several clauses mentioned in all these documents would undoubtedly make it clear that the engagement in different sections was for a specific period of one year or six months or three months as the case may be and that there was no offer of renewal of any such contract after the expiry of the term of contract.

12. The learned counsel for the applicant has relied upon the decision of the Hon'ble Supreme Court in West Bengal State Electricity Board and another Vs. Deshbandhu Ghsoh and others - (1985) 3 SCC 116 and submits that Annexure A1 order is arbitrary and unjustifiable. The aforesaid decision has absolutely no relevance to the case on hand. In the case cited supra the first respondent before the Hon'ble Supreme Court (petitioner before the High Court) was a permanent employee of the West Bengal State Electricity Board. On the ground that the order issued against him gave no reason for terminating his services and as there was nothing in the order which could possible be set to attach any stigma to the respondent therein the order of termination was challenged. There can be no doubt that if the petitioner/applicant is a permanent employee then certainly due procedure has to be followed before ordering termination. Here the applicant is not a permanent employee. On the other hand admittedly he was engaged only on contract basis for a specified period. It is not a case of termination as well. Therefore, the aforesaid decision is totally inapposite to the facts of this case.

13. The next decision of the Hon'ble Supreme Court cited by the learned counsel for the applicant is KC Joshi vs. Union of India and another - 1985 (3) SCC 153. In that case the appellant was appointed as Assistant Store Keeper and later he was selected in open competition and was appointed on 7.12.1963. The appointment was to a sanctioned post. It was found that the appellant was a man selected in an open competition and was offered the post. It was also found that on completion of the probation period, the appellant was appointed on a regular basis as Store Keeper. Therefore, he has to be treated as a permanent/regular employee. As such the order of termination of service without following the procedure prescribed was found to be illegal. Therefore, that decision also has to be distinguished on facts. It is inconceivable how an employee who was selected in an open competition and whose probation was declared and who became a permanent employee can be taken as a similar employee or employee similarly placed as the applicant.

14. The learned counsel for the applicant has also relied upon the decision of the Hon'ble Supreme Court in Kusum Gutpa Vs. Haryana State Small Industries Corporation Ltd. -- (1986) 3 SCC 506. There also order terminating the service of an employee was under challenge. There the bye law was clear that the service of an employee could be terminated by giving one month's notice or in lieu of notice by paying the salary for a period of one month. Therefore, it was held that it is open to the employee to produce ‘no due certificate’ by the employee. That was a case where it was found that the employer has taken advantage of the employee's failure to give a certificate to the employer and then claimed that the employer was entitled to withhold one month's pay and allowances payable in lieu of one months notice on the ground of non production of no due certificate by the employee. Therefore, the facts dealt with therein are also entirely different and have absolutely no bearing on the facts of this case.

15. The decision of the Hon'ble Supreme Court in Madan Singh and another Vs. State of Haryana and others - AIR 1988 SC 2133 has also been cited by the learned counsel for the applicant. It is argued by the learned counsel for the applicant that in the aforesaid decision it was found that the State Government has come forward with orders from time to time for absorption of the persons like the parties before the Hon'ble Supreme Court and so taking into consideration the continuous service of the petitioner/appellant therein it was found that the benefit conferred under those Government Orders were available to the appellant and therefore, they are entitled to continue in service. In that case it was found that the appellant therein had put in such a long period of service while persons junior to them in such service were retained. It was also found that fresh recruitment had been made almost simultaneously which indicated that there was need for the service and as such the Apex Court found that there was no justification for termination of service of the appellants therein. Here, it can be seen that though earlier the engagement on contract basis was for a period of one year from 1.1.2015 to 31.12.2015 when need or exigency arose to retain the applicant it was extended for a further period of 6 months from 1.1.2016 to 30.6.2016. According to the respondents still the service of the applicant was required for a very short period and so it was extended for a further period of three months from 1.7.2016 to 30.9.2016. These orders itself would make it clear that when the service of the applicant was necessary, by issuing relieving order and a fresh appointment order the engagement was extended for a short period of three months. Therefore, the decision cited supra has absolutely no relevance to the facts in this case.

16. The learned counsel for the applicant has also relied upon the decision of the Hon'ble Supreme Court in DK Yadav Vs. MA Industries Ltd - (1993) 3 SCC 259 in support of his submission that the cardinal point that should be borne in mind in every case is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly and impartially. It is submitted that the procedure for termination adopted by the employer must be just, fair and reasonable. In short the application of principle of natural justice no man should be contemned unheard should be followed. The facts dealt with therein are also not identical. That was a case where the respondent before the Hon'ble Supreme Court was dismissed on the ground that he absented himself without assigning any cause for his absence. The employee therein was absent for duty for eight days. No opportunity was given to the employee to explain the reasons for his absence or inability to return to the duty on the expiry of the leave. The provisions contained in the Industrial Disputes Act and the standing orders issued thereunder were considered by the Hon'ble Supreme Court in that case. In this case also the applicant was a workman coming under the Industrial Disputes Act and not an employee whose engagement was unlike the case on hand the engagement was purely on contract basis for a specified period. Therefore, that decision also does not come to the rescue of the applicant.

17. The other decision that has been cited by the counsel for the applicant is Samishta Dubey Vs. City Board, Itawa and another - (1999) 3 SCC 14. That was also a case under the Industrial Disputes Act. Provisions of that act were considered by the Hon'ble Supreme Court. It was stated that in the absence any contract between the employer and employee the employer shall ordinarily retrench the workman who was the last persons to be employed in that category, unless for reasons to be recorded, the employer retrenches any other person. Section 6P of the UP Act corresponding to Section 25F of the Industrial Disputes Act, 1947 was considered by the apex court in that case. Relying on the same the learned counsel for the applicant submits that the rule of 'first come last go' should be applied and in such a case the applicant could not have been terminated from service. Here that question does not arise since it is not a case where the provisions of the Industrial Disputes Act would have any applicat

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ion. Not only that, it is not a case where somebody else is accommodated in the place of the applicant. In other words, the rule of 'first come last go' has no application at all in this case. 18. The decision rendered by the Hon'ble Supreme Court in Prabhudayal Barari Vs. MP Rajya Nagarik Aapurti Nigam Ltd. - (2000) 7 SCC 502 has also been relied upon by the counsel for the applicant. In that case the appellant was appointed as Assistant District Manager in MP State Commodities Trading Corporation. As per the terms of appointment the services of the appellant could be terminated on one month's notice or on payment of one month's salary in lieu of notice by either side. There, the main dispute was since one month's notice was not given the appellant therein was entitled to get salary in lieu of such notice. The unauthorized absence of the appellant was projected as a ground to reject the claim for one month's salary. In other words, that was a case where the order of termination of the appellant was without giving one month's notice or one month's salary. Therefore the facts dealt with therein are also not applicable to the facts of this case. 19. The court or the Tribunal can come into picture only to ensure observance of fundamental rights, statutory provisions and other instructions, if any, governing the conditions of service. Whether rule of law has been ensured and the executive has acted fairly and whether the employee has been given a fair deal considering the requirement of Articles 14 and 16 are certainly matters to be gone into but so far as the case on hand is concerned the applicant was given only contractual appointment for a specified period for completion of a specified project work. After completion of the project the applicant cannot be retained. Applicant has no right to contend that he should be retained even after completion of the project work and beyond the period of contractual engagement. Since it is a clear case of contract assignment for a specified period the applicant is not entitled to the relief as prayed for. Ex consequenti the application being sans merit deserves to be dismissed. Hence OA is dismissed. No order as to costs.
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