The Honble Lt.Governor And ORS v. Shri. Jophy Joseph

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/17/2025 (IA NO: CAN/1/2025) The Hon'ble Lieutenant Governor and Others Vs.

Shri Jophy Joseph Mr. Shatadru Chakraborty, Sr. Adv.

Mr. Rakesh Kumar Mr. Dibesh Dwivedi ... for the appellant Mr. Gopala Binnu Kumar ... for the respondent March 12, 2025 [SR] Item No.4 1.

The non-renewal of service of the respondent after he had served the Administration for ten years on a contractual basis was the subject matter of challenge in the writ petition in which the impugned order was passed.

2.

Mr. Shatadru Chakraborty, learned senior counsel for the Administration has relied upon a letter dated 2nd August, 2022 to argue that the letter conclusively establishes the relationship between the parties as contractual and there was no duty cast upon the appellants to disclose any reason for non-renewal of the service of the writ petitioner upon expiry of the renewal period.

3.

It is further submitted that there is no requirement in law to issue any formal letter of termination on the expiry of the tenure and unless a fresh letter of appointment is issued, it shall be deemed that the service of the writ petitioner has not been renewed.

4.

Mr. Gopala Binnu Kumar, learned counsel appearing on behalf of the writ petitioner has submitted that he was engaged as Junior Engineer against regular post by Administration and was discharging the duties in the Zilla Parishad, North and Middle Andaman, Mayabunder and by way of proper recruitment process initiated by the Administration. 5.

The continuation of the petitioner on contractual post is unfair and he should have been absorbed having regard to the fact that his service was continued for the last ten years before he was terminated.

6.

Mr. Kumar has drawn our attention to para 8 of the impugned order in which, he has relied upon the decision of the Supreme Court in the case of K.Rajupathi vs. The State of Uttar Pradesh and others reported in (2022) 6 SCC 346 and submits that the judgment is an authority for the proposition that mere nomenclature of the engagement being contractual would not ipso facto render a service contractual. 7.

In the conspectus of the aforesaid facts, the impugned order is required to be considered.

8.

It appears that although the appointment of the petitioner was on contractual basis, however, he continued to discharge his function continuously for the last ten years and suddenly the Administration decided to discontinue his service. He was appointed against a regular sanctioned post. It does not appear from the materials on record that the said post has become redundant or declared surplus. However, the most important feature is the reason disclosed in the affidavit-in-opposition, for non-renewal which reads as follows:

" There was an allegation against Zilla Parishad, North & Middle Andaman that 'Discrepancy occurred during execution of the project-Construction of Rural Road from Balai House to Gouranga Mondal at Kalipur Ward No. 1 under Zilla Parishad, Keralapuram Constituency, Diglipur' which had been referred to the Anti Corruption Unit to conduct a proper technical audit/examination by the Technical expert of Anti Corruption Unit (ACU) as recommended by the Executive Engineer, ZP, N & M Andaman.

In pursuance of the direction of the Vigilance Department of Administration, the Anti Corruption Unit conducted the enquiry on the issue and submitted the enquiry report containing the technical & Inspection Report submitted by Shri Srinivasan Lalu, Assistant Technical Examiner, which revealed following irregularities/lapses on the part of Shri Jophy Joseph, JE (Contract) and others. (i) Rolling the earth embankment was not done by engineering officials resulted in settlement and laternal cracks on the road surface.

(ii) Field level book was not maintained or submitted while forwarding bill for payment to the EE/ZP from Diglipur SubDivision. In the absence of level book/level sheet (LS & CS), the exact quantity executed in the agreement No. EE/N & M/ZP/2014-15/29 dtd. 27.02.2015 could not be established by the engineering officials.

(iii) During his posting as Junior Engineer, Zilla Parishad, Keralapuram Constituency, Diglipur, during the Execution of the said work he was responsible for supervision of the contract work including fixing of permanent bench mark taking initial & final level and rolling of earth embankment which was not followed by him which resulted in filling the embankment with less quantity of earth thereby causing loss of the Govt. exchequer to the tune of Rs. 16,33,633/-.

The Competent Authority has accorded permission for registration of FIR against Shri Jophy Joseph, Junior Engineer [Civil (Contract)] for criminal misconduct under Section 13(1) n (a) of Prevention of Corruption Act, 1988. Simultaneously the department has been directed by the

Competent Authority to initiated Disciplinary Proceeding against all erring Officials involved in the issue. In pursuance of the decision taken by the Competent Authority, Disciplinary action has been initiated against all Govt. Officers involved in the issue. In the case of Jophy Joseph, since he was a contract employee, as per the decision already taken by the Hon'ble Lt. Governor, A & N Islands in the similar case, no further engagement was made in respect of Shri Jophy Joseph.

Craves leave to produce report of Anti Courruption Unit at the time of hearing of the instant writ petition."

9.

The aforesaid statements made in para 11 of the affidavit was referred to in the impugned judgment. In the aforesaid backdrop the order of termination if considered left no iota of any doubt that the formation of opinion for not renewing of service was the allegation of misconduct for which no opportunity of hearing was given to the writ petitioner. 10.

The nature of imputation against the writ petitioner was stigmatic. The continuous renewal of the contract of the petitioner for ten years also prima facie establish tappings of regular and full time employment not a mere contractual one. However, we are not, in this proceeding, deciding as to whether the writ petitioner is entitled to absorption or not and we restrict our enquiry to ascertain the manner in which the service was discontinued. Although it is argued that it is a mere discontinuance of the service of the writ petitioner without anything more on a reading of the affidavit the relevant portions whereof have been set out above, it is, in effect, termination with stigma. The intemperate language used in the affidavit gives impression that his service was discontinued due to alleged misconduct.

11.

On such consideration, we do not find any reason to interfere with the order passed by the learned Single Judge. The appeal and the connected application stand disposed of. There shall be no order as to costs.

12.

The compliance of order of the learned Single Judge, on the prayer of the learned Senior Counsel for the appellant, is extended for one month from date.

( Soumen Sen, J. ) (Raja Basu Chowdhury, J. )