The High Court of Jammu & Kashmir and Ladakh at Srinagar Bench has clarified that where a person is engaged purely on a contractual basis, has no right to the post, and the contract itself permits termination by notice or salary in lieu thereof, then termination in accordance with that contractual clause does not amount to punishment merely because the record refers to unsatisfactory performance or lack of professional competence. In such a case, Article 311 protections are not attracted, and no formal departmental enquiry is required unless the termination is in substance founded on a specific charge of misconduct and carries stigma.
The Division Bench comprising Justice Sindhu Sharma and Justice Shahzad Azeem observed that the appellant’s employment was governed by contract and that his services had been terminated by invoking Clause (11) of the agreement. Clause (11) entitled the respondents to terminate the agreement by giving one month’s notice or one month’s salary in lieu thereof, and preserved a general right of termination on grounds including professional incompetence, misconduct, moral turpitude and unsatisfactory performance of duty.
The Bench referred to Parshotam Lal Dhingra v. Union of India [AIR 1958 Supreme Court 36] to reiterate that where the employer has an express or implied contractual or statutory right to terminate employment, termination in exercise of that right is prima facie not a punishment and Article 311 is not attracted. It also referred to State of U.P. v. Ram Chandra Trivedi [AIR 1976 Supreme Court 2547] for the proposition that where a temporary employee has no right to the post and the order is ex facie one of termination simpliciter without stigma or evil consequences, the Court cannot go behind the order to examine motive and extend protection under Article 311(2).
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The Bench further reiterated that a probationer, temporary employee or contractual employee who has no right to the post does not enjoy the protection available to a holder of a civil post, and termination on the ground of unsuitability or under contractual terms does not amount to punishment requiring a formal enquiry. It specifically noted that the appellant was not working on a civil post but was engaged on a contractual basis, with renewals from time to time under the agreement of service, and therefore the safeguard under Article 311 was unavailable to him.
The Bench pointed out that the termination was not founded on any specific charge of misconduct, but on overall unsatisfactory performance and lack of professional competence as reflected in the record and prior communications. It therefore concluded that no stigma was attached to the termination order so as to require a departmental enquiry.
Briefly, the appellant, Manzoor Ahmad Bhat, was engaged as a Laboratory Assistant under the Ex-Servicemen Contributory Health Scheme (ECHS) by appointment order dated Oct 04, 2004. His engagement was contractual in nature, initially extended by agreement for 11 months and thereafter extended again in 2006. Later, a termination notice dated May 21, 2007 was issued to him, to which he submitted a reply, but respondent No. 2 thereafter passed the termination order. He challenged the termination on the grounds that respondent No. 3 was not competent to issue the notice and that his services could not have been terminated without an enquiry.
The respondents contended that the appellant was only a contractual employee governed by the terms of the agreement, the last of which was executed on Sep 06, 2006. They stated that the termination notice had been issued by respondent No. 3 on behalf of respondent No. 2, while the final termination order was passed by the competent authority. They further relied on repeated warnings issued to the appellant regarding his unprofessional conduct and unsatisfactory performance.
The Single Judge, after examining the record, noted that an inspection conducted in 2007 had revealed deficiencies in the laboratory functioning. It was also noticed that the appellant had been repeatedly warned regarding his conduct, attitude towards colleagues and lack of diligence, and that even in his reply to the show cause notice he had, to an extent, admitted deficiencies while attributing them to others. On that basis, the Single Judge held that under Clause (11) of the agreement the respondents were entitled to terminate his services upon issuance of a show cause notice, and since such notice had been issued and replied to, the termination was justified.
