Dr. Zubair P.K. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 ``` ## **`WP(C) NO. 1111 OF 2023`** ## **`PETITIONER:`** ``` DR. ZUBAIR P.K. AGED 38 YEARS S/O. ABDUL JABBAR P.K., PALLIPPARAMBATH KUZHIKKANDATHIL HOUSE, CHENNARA P.O., TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676561 ``` ``` BY ADVS. C.M.MOHAMMED IQUABAL P.ABDUL NISHAD RAIHANATH T.H. ISTINAF ABDULLAH ANFAS C.K. MUHAMMED AMEEN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DIRECTOR, NATIONAL HEALTH MISSION, (AROGYA KERALAM) OFFICE OF THE MISSION DIRECTORATE, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE DISTRICT MEDICAL OFFICER, MALAPPURAM, DISTRICT MEDICAL OFFICE (HOMOEO), MALAPPURAM, PIN - 676505`** - **`4 THE DISTRICT PROGRAMME MANAGER, NATIONAL HEALTH MISSION, MALAPPURAM, MALAPPURAM P.O., PIN – 676505`** ``` WP(C) No.1111 of 2023 ``` ``` 2 ``` ``` 5DR. RAJEEV O, NHM HOMOEO DOCTOR, GRAMA PANCHAYATH HOMOEO PRIMARY HEALTH CENTRE, NANNAMBRA, NANNAMBRA P.O., MALAPPURAM DISTRICT, PIN – 676320 ``` ``` BY ADV M.AJAY-R2 AND R4 SMT.K.G. SAROJINI GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.1111 of 2023 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 31[st] day of January, 2023 The petitioner, who is a practicing Homeo Doctor working as a Medical Officer in Grama Panchayat Homeo Dispensary, is before this Court seeking to call for the records leading to Exts.P6 notice and P7 order and to quash the same by issuance of writ of certiorari. 2. The petitioner states that he is working as a Homeo Doctor in the Grama Panchayat Homeo Primary Health Centre under the programme of Arogya Keralam (National Health Mission) on contract basis. The first appointment of the petitioner was in the Primary Health Centre (Homeo), Tanalur during 2010. From 2010 onwards, the petitioner is continuously working. 3. The petitioner states that without any rhyme or reason, the service of the petitioner was terminated giving 15 days pay in lieu of notice, as per Ext.P6 notice dated ``` WP(C) No.1111 of 2023 ``` ``` 4 ``` 09.01.2023 of the District Programme Manager. By Ext.P7 order dated 09.01.2023, the petitioner was informed that the service of the petitioner is no longer required. 4. Counsel for the petitioner would urge that Exts.P6 and P7 are highly arbitrary and unsustainable. Exts.P6 and P7 have been passed without giving an opportunity of hearing to the petitioner. No notice of termination was issued to the petitioner. There is no reason whatsoever to dispense with the service of the petitioner. 5. The counsel for the petitioner further urged that the petitioner has executed an agreement with the 3[rd] respondentDistrict Medical Officer. The 4[th] respondent is only a Programme Manager. He has no authority to terminate the appointment of the petitioner made by a superior officer. According to the petitioner, there is no complaint against the petitioner till date. The termination of service of the petitioner as per Ext.P7 order is therefore premature, as the contractual engagement of the petitioner is to expire only on 31.03.2023. ``` WP(C) No.1111 of 2023 ``` ``` 5 ``` Unless Exts.P6 and P7 are quashed, the petitioner will be put to untold hardship, contends the counsel for the petitioner. 6. Standing Counsel entered appearance on behalf of respondents 2 and 4. The Standing Counsel submitted that the appointment of the petitioner is of contractual nature. Such contractual appointments are made for a period of one year. After the expiry of one year period, as per the performance appraisal, fresh contracts will be made with the candidates. The Standing Counsel submitted that the service is not continuous, but there are breaks in between. The Standing Counsel also submitted that there are serious allegations against the petitioner. 7. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 and 3 and the learned Standing Counsel representing respondents 2 and 4. 8. Ext.P5 is the form of Contract of Engagement of the petitioner. Ext.R4(e) is the original contract. Clause 11 of ``` WP(C) No.1111 of 2023 ``` ``` 6 ``` Ext.P5 says that notwithstanding anything contained in the contract, the Society reserves the right to terminate the agreement without assigning any reason. In such a case, a written notice of 15 working days will be given to the employee. Clause 13 further says that the Society, in lieu of written notice, may give the employee an amount equal to that of his/her consolidated emoluments for 15 working days and for a shorter notice than 15 working days, an amount equal to that for the period of which such notices falls short of fifteen working days. 9. In view of the specific contractual conditions as contained in Clauses 11 and 13 of Ext.P5, the petitioner cannot be heard to contend that the petitioner is entitled to a notice and hearing before termination of his services. 10. The Hon’ble Apex Court has held in the judgment in _**Kendriya Vidyalaya Sangathan v. Arunkumar Madhavrao Sinddhaye and another** [(2007) 1 SCC 283]_ that When a summary enquiry is held to determine only suitability ``` WP(C) No.1111 of 2023 ``` ``` 7 ``` to continue in service and termination is ordered as per terms of the contract, there is no punishment. In such cases, the question of principles of natural justice does not arise. In view of the above, I find no illegality in terminating the service of the petitioner as per Exts.P5, P6 and P7. The writ petition fails and it is dismissed. ## **Sd/-** **N.NAGARESH JUDGE** spk ``` WP(C) No.1111 of 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 1111/2023`** ``` PETITIONER EXHIBITS Exhibit P1THE TRUE COPY OF THE CERTIFICATE ISSUED BY TAMIL NADU DR. MGR MEDICAL UNIVERSITY DATED 20.9.2008 ``` ``` Exhibit P2THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY TRAVANCORE COCHINCOUNCILOFHOMOEOPATHIC MEDICINE DATED 8.3.2019 ``` ``` Exhibit P3THE TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 7.6.2010 ``` ``` Exhibit P4THE TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 1.4.2022 Exhibit P5THE TRUE COPY OF THE FORMAT OF THE AGREEMENT DATED NIL ``` - **`Exhibit P6 THE TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 09.01.2023`** - **`Exhibit P7 THE TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 9.1.2023`** ``` RESPONDENT EXHIBITS ``` - **`EXHIBIT R - 4 (A) A TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE FOURTH RESPONDENT FOR THE PERIOD 2.6.21 TO 31.3.22 DATED 21.6.21`** - **`EXHIBIT R - 4 (B) A TRUE COPY OF THE COMMUNICATION ADDRESSED TO THE DIRECTOR, HOMOEOPATHY BY THE THIRD RESPONDENT DATED 20.9.21`** - **`EXHIBIT R - 4 (C) A TRUE COPY OF THE REPORT PREPARED BY THE THIRD RESPONDENT DATED 20.10.21`** - **`EXHIBIT R- 4 (D) A TRUE COPY OF THE PERFORMANCE APPRAISAL OF THE PETITIONER FOR THE PERIOD 2021 - 22 DATED 21.3.22`** - **`EXHIBIT R-4 (E) A TRUE COPY OF THE AGREEMENT ENTERED INTO BY PETITIONER WITH THE FOURTH RESPONDENT FOR THE PERIOD 2.4.22 TO 31.3.23 DATED 2.4.22`** - **`EXHIBIT R - 4 (F) A TRUE COPY OF THE COMMUNICATION ADDRESSED BY THE DISTRICT POLICE CHIEF, KOZHIKODE RURAL TO THE THIRD`** ``` WP(C) No.1111 of 2023 ``` ``` 9 ``` ``` RESPONDENT DATED 2.9.22 ``` ``` EXHIBIT R - 4 (G)A TRUE COPY OF THE COMMUNICATION ADDRESSED TO THE THIRD RESPONDENT BY THE FOURTH RESPONDENT DATED 16.11.22 EXHIBIT R - 4 (H)A TRUE COPY OF THE COMMUNICATION ADDRESSED TO THE FOURTH RESPONDENT BY THE THIRD RESPONDENT DATED 21.12.22 EXHIBIT R - 4 (I)A TRUE COPY OF THE COMMUNICATION ADDRESSED BY THE SECOND RESPONDENT TO THE FOURTH RESPONDENT DATED 5.1.23 ```