Shri. Jophy Joseph v. The Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/452/2022 Shri Jophy Joseph Vs The Lieutenant Governor and others Mr. Gopala Binnu Kumar ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents November 5, 2024 [SR] Item No.9 1.

The writ petitioner is aggrieved by an order dated 2nd August, 2022 whereby his service on contract was not extended by the State.

2.

The petitioner was engaged as Junior Engineer by the Administration and posted with the Zilla Parishad, North and Middle Andaman, Mayabunder. The process of recruitment was regular and in accordance with law. Due advertisement was published and application invited specifying qualification, terms and conditions. While some persons were engaged and absorbed permanently in the service of the Administration, some persons including the petitioner were engaged on a purely contractual basis for a period of 11 months. Petitioner's initial contract was for 11 months with effect from 21st April, 2011. The contract was renewed several times over a period of 10 years.

3.

Suddenly by an order dated 2nd August, 2022, the respondents informed the petitioner that his contract would not be renewed.

4.

In the affidavit-in-opposition, the respondents have clearly stated that there were various acts and omissions found by the Administration, inter alia, against the petitioner for which both criminal and departmental proceedings were recommended.

5.

Insofar the petitioner is concerned, it is averred in the affidavit-in-opposition that since he was on contractual engagement, his service could be ended simplicitor by refusing to renew his contract.

6.

Mr.Gopala Binnu Kumar places reliance of a judgment of a Coordinate Bench being dated 5th August, 2024, in WPA/397/2022 (Christopher Lazarus vs. The Lieutenant Governor and others) whereby the person similarly situated like the petitioner whose contract was terminated simplictor albeit after a show cause notice, alleging acts of omission and commission.

7.

The Coordinate Bench in its order dated August 05, 2024 set aside the order of termination and held that the petitioner should stand reinstated in service. The employer was, however, allowed to take out regular proceedings against the petitioner therein.

8.

Mr. Binnu Kumar also places reliance in the case of K.Ragupathi vs. The State of Uttar Pradesh and others

reported in (2022) 6 SCC 346 and submits that mere nomenclature of the engagement being contractual would not ipso facto render a service contractual.

9.

In the instant case, it is seen that the petitioner's contract was renewed for a period of ten years. The service of the petitioner, therefore, has trappings of a regular employment notwithstanding the fact that the petitioner was receiving a consolidated monthly payment.

10.

Mr. Shatadru Chakraborty, learned counsel for the respondent places reliance on the letter dated 2nd August, 2022 submits that irrespective of what is stated in the pleadings, the said letter forming the basis of the relation of the petitioner and the State. The letter of termination simpliciter declined renewal of service. It is submitted that by reason thereof no stigma can be imputed upon the petitioner to the termination. It is therefore submitted that the question of violation of any principles of natural justice in refusing to renew the petitioner's contract does not arise.

11.

Having heard learned counsel for the parties, this Court finds that the following statements in the affidavit-in-opposition extremely relevant.

" 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 the engineering officials resulted in settlement and laternal cracks on the road surface.

(ii) Field level book was not maintained or submitted while forwarding the 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 the 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 the report of Anti Courruption Unit at the time of hearing of the instant writ petition."

12.

In the backdrop of the aforesaid, this Court is of unequivocal view that non-renewal thereafter must and should be based on allegations of misconduct. The non-extension of the petitioner's contract is stigmatic.

13.

In any event, applying the decision of the Supreme Court in case of K.Raghupati (supra) , the continuous renewal of the petitioner's contract for ten years also indicates substantial trapping of a regular and fulltime employment and not a contractual one.

14.

In these circumstances, the impugned order of nonrenewal of contract dated 2nd August, 2022 is set aside. The petitioner shall be deemed to be on service since then. 15.

It is however made clear that the respondent shall be entitled to take out appropriate proceedings in accordance with law and within the rules against the petitioner. 16.

The petitioner shall be entitled to 50% normal monthly remuneration that he would receive, had he been continued in service from the date of termination till date. Let the same be paid to the petitioner within a period two months.

17.

With the above observation, the writ petition is allowed and disposed of.

18.

There shall no order as to costs.

19.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. ( Rajasekhar Mantha, J. )