Order dated : 24.08.

2022
Writ Petition No.13195 of 2015

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.08.2022

CORAM

THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

Writ Petition No.13195 of 2015

and
M.P.Nos.1 & 2 of 2015

S.Suresh Jothi Kumar ... Petitioner

Vs.

1.The Director of Public Health and Preventive

Medicine, DMS Campus,
Chennai - 600 006.

2.The Deputy Director (State Public Health Laboratory),

Office of Director of Public Health and Preventive
Medicine, DMS Campus,
Chennai - 600 006. ... Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records and
quash the impugned order issued by the first respondent bearing reference
Proc.No.016823/IDSP/2015 dated 09.04.2015 (signed on 20.04.2015) and
consequently, direct the respondents 1 and 2 to retain the petitioner as the
Micro Biologist in their Department, pay him all the monetary and other service
benefits, which he would have drawn had the impugned order not been passed.

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Writ Petition No.13195 of 2015

For Petitioner : Mr.K.Srinivasa Murthy

for M/s.Row and Reddy

For Respondents : Mr.L.S.M.Hasan Fizal

Additional Government Pleader

*****

ORDER

The order of termination terminating the contract services of the

petitioner under Integrated Disease Surveillance Project on consolidated pay is

under challenge in the present writ petition.

2. The petitioner states that he acquired M.Sc. Microbiology from

Madras University. He registered his name in the employment exchange on

23.05.2007 and subsequently, his name was sponsored by the employment

exchange for appointment to the post of Microbiologist in the respondent

department. The respondents established microbiology in their District

Laboratory for investigation and surveillance on diseases like dengue and other

communicable diseases in the State of Tamil Nadu. The petitioner was

admittedly appointed on contract basis and he signed the agreement dated

23.02.2011. The period of contract was one year and periodically, the contract

was renewed on expiry of one year. At the request of the petitioner, his services

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Writ Petition No.13195 of 2015

were not terminated at the end of 12 months and he was allowed to continue

and the consolidated salary was increased to all such contract employees. While

so, the petitioner was served with the impugned order terminating his services

without any show cause notice or affording any opportunity. The order

impugned states that he has failed to carry out the duties specified.

3. Learned counsel appearing on behalf of the petitioner submits that it is

a stigma attached and no show cause notice was issued to the petitioner nor he

was provided with an opportunity to defend the allegations regarding his

alleged failure to carry out any of the duties. When there is no allegation set out

regarding the failure of the petitioner, then there is no reason to terminate the

services of the petitioner. Thus, the impugned order is liable to be set aside.

4. Learned Additional Government Pleader appearing on behalf of the

respondent submits that as per Clause 7 of the Contract Service Agreement

entered into between the petitioner and the department in case of improper

conduct and/or unsatisfactory performance/insubordination and or

misbehaviour by the signatory, having regard in particular to the terms and

conditions of the agreement and also the guidelines/directives issued from time

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 Order dated : 24.08.2022
Writ Petition No.13195 of 2015

to time, the department shall terminate the contractual appointment without any

notice.

5. Though the aforesaid clause stipulates that on unsatisfactory

performance, the contract can be terminated without any notice, the order

impugned stipulates that there was a failure on the part of the petitioner in

carrying out the duties specified. Under those circumstances, at least a notice or

memo ought to have been issued to the employee concerned regarding the

failure in performing his duties. Even the order impugned is silent about any

such failure on the part of the petitioner. If at all any such failure has been

specified in the order impugned, then the authority may be right in invoking

Clause 7 of the agreement. Such notice is required in order to prevent arbitrary

invocation of the termination clause in the contract agreement. Once an

employee is appointed on contract basis, in normal circumstances, he must be

allowed to work till the expiry period of the contract. In between, if the

employee has committed any misconduct or his performance is not to the

satisfaction of the authorities concerned then some reasons must be recorded in

the order and a blanket order terminating the services cannot be construed as

valid with reference to the termination clause in the contract. No doubt, the

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Writ Petition No.13195 of 2015

authorities are empowered to terminate the services without any notice for

unsatisfactory performance.

6. In the present case, the order impugned states that the petitioner has

failed to carry out the duties specified. Under those circumstances, what are the

duties which were not performed by the petitioner is to be stated, otherwise, the

same would result in arbitrary exercise of power by the competent authority.

7. This Court is of the considered opinion that contract appointment

admittedly was for a period of one year. Now, by virtue of an interim order, the

petitioner was allowed to continue as contract employee. Thus, he must be

allowed to continue till the expiry of the period of contract. If at all the services

of the petitioner are required, then a fresh agreement is to be entered between

the department and the employee concerned. Contract employees have no right

to claim regularization but they have got a right to continue till the expiry of the

period of contract.

8. In the present case, contract appointments were made under a scheme

and for a consolidated pay. Those employees appointed on contract basis under

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Writ Petition No.13195 of 2015

a project/scheme on consolidated pay cannot seek permanent absorption or

regularization. Even to invoke Clause 7 of the agreement i.e. termination, if an

employee is to be terminated based on the agreement, reason for such

termination is to be furnished to the employee by way of a show cause notice or

otherwise. No doubt, in case of improper conduct or misbehaviour, the

authority competent is empowered to terminate the contractual services of the

employee concerned. While doing so, an employee must be made known about

the reason for such termination as in the present case it is stated that the

petitioner has failed to carry out his duties specified. Then the authorities may

issue a show cause notice what are the duties assigned to the petitioner, how he

committed failure in performing his duties and an opportunity, in this regard, is

certainly required and in the absence of any such opportunity, there is every

possibility that the authorities can arbitrarily exercise the power by invoking

Clause 7 of the agreement for termination of such employees. In order to

prevent the arbitrary exercise of power by the authorities concerned, such a

show cause notice is required, more so, enabling the employee to know about

the deficiency or otherwise or provide an opportunity to rectify such failure or

otherwise. This being the principles to be followed, this Court is of the opinion

that the order impugned is infirm and not in consonance with the terms of

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agreement entered into between the department and the petitioner. However, it

is made clear that the petitioner cannot seek the benefit of regularization or

permanent absorption merely based on his service rendered by virtue of interim

order passed by this Court in the present writ petition. Continuous litigation

will not provide any right to a person, more so, a contract employment should

be rescinded after the expiry of the period of contract or it is to be terminated

by following the procedures as contemplated in terms of the agreement and in

the event of any such misconduct or otherwise, it is to be communicated to the

employee concerned by way of a show cause notice enabling him to submit his

explanation. Thus, there is no impediment for the authorities to relieve the

petitioner on expiry of the period of contract entered into between the

department and the employee.

Accordingly, this Writ Petition is allowed and the order passed by the

first respondent bearing reference Proc.No.016823/IDSP/2015 dated

09.04.2015, is quashed. No costs. Consequently, connected miscellaneous

petitions are closed.

24.08.2022
Index : Yes
Speaking order
gm
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 Order dated : 24.08.2022
Writ Petition No.13195 of 2015

S.M.SUBRAMANIAM., J

gm
To

1.The Director of Public Health and Preventive

Medicine, DMS Campus,
Chennai - 600 006.

2.The Deputy Director (State Public Health Laboratory),

Office of Director of Public Health and Preventive
Medicine, DMS Campus,
Chennai - 600 006.

Writ Petition No.13195 of 2015

24.08.2022

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