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

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 ## WA NO. 360 OF 2023 AGAINST THE JUDGMENTWP(C) 1111/2023 OF THE HIGH COURT OF KERALA ## APPELLANT/S: DR. ZUBAIR.P.K., AGED 38 YEARS, S/O. ABDUL JABBAR P.K., PALLIPARAMBATH KUZHIKANDATHIL HOUSE, CHENNARA P.O. TIRUR TALUK, MALAPPURAM, PIN - 676561 BY ADVS.KALEESWARAM RAJ; THULASI K. RAJ APARNA NARAYAN MENON ## RESPONDENT/S: - 1 STATE OF KERALA, REPRESENTED BY 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 (HOMEO), MALAPPURAM, PIN - 676505 - 4 THE DISTRICT PROGRAMME MANAGER NATIONAL HEALTH MISSION, MALAPPURAM, PIN - 676505 - 5 DR RAJEEV O, NHM HOMEO DOCTOR, GRAMA PANCHAYAT HOMEO, PRIMARY HEALTH CENTRE, NANNAMBRA, NANNAMBRA P.O., MALAPPURAM, PIN - 676320 **W.A. No.360/2023** **==> picture [16 x 10] intentionally omitted <==** ## OTHER PRESENT: SRI. M. AJAY, SC FOR NATIONAL HEALTH MISSION. SRI. BEJOY CHANDRAN - SR. GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.A. No.360/2023** **-3-** ## J U D G M E N T ## S.V. Bhatti, J. We have heard Adv Thulasi K Raj, Adv M Ajay, Standing Counsel and Adv Bejoy Chandran, Government Pleader for the parties. 2. The writ petitioner is the appellant. Through a Contract of Engagement dated 02.04.2022, the appellant has been appointed as Homoeo Doctor for the period 02.04.2022 to 31.03.2023. The appellant’s services were terminated through a communication dated 09.01.2023 (Ext.P6). The appellant filed W.P.(C) No.1111/2023. Through the judgment impugned in the appeal, the writ petition was dismissed. Hence the appeal. **W.A. No.360/2023** **-4-** 3. Adv Thulasi K Raj argues that Ext.P6 is wholly illegal, arbitrary, and liable to be set aside. The argument proceeds on the premise that Ext.P6 cannot be treated as a letter severing the relationship between the appellant and respondent nos.2 to 4 because the counter affidavit filed by the contesting respondents would disclose that an enquiry into an allegation was conducted behind the back of the appellant and the said enquiry report constituted the basis for the termination. Therefore, even if the appointment of the appellant as a Homoeo Doctor is under a contract for a particular period, the order in Ext.P6 is liable to be set aside, and the appellant is allowed to complete the contractual term. She relies on _A.P. State Federation of Coop. Spinning Mills Ltd. v. P V Swaminathan_[1] for the proposition that the termination is a simpliciter or pursuant to an enquiry decides the reason for the termination. > 1 (2001) 10 SCC 83 **W.A. No.360/2023** **-5-** 4. Adv M Ajay argues that the judgment under appeal is based on admitted circumstances and the inferences available from the Contract of Engagement dated 02.04.2022. The appellant serving as a Homoeo Doctor under a contract can raise a grievance if the termination is in a way other than the terms of the Contract of Engagement. The reply given in the counter affidavit on alleged stigma is read out of context by the appellant. The severance in the relationship between the appellant and respondents 2 to 4 is interpreted in Ext.P6. The respondents have issued pay in lieu of notice and terminated the appellant’s service. The judgment cited is distinguishable, and no ground is available in the intra-Court appeal. 5. We have perused the record and taken note of the rival submissions. The following clauses of the Contract of Engagement are excerpted: **W.A. No.360/2023** **-6-** “10. The services of the Employee can be terminated at any time by the competent authority of the Society if the Employee is found to be guilty of any insubordination, intemperance or other misconduct or non-performance/non-cooperation. *** *** *** 13. The Society, in lieu of written notice, may give the Employee an amount equal to that of his/her consolidated emoluments for fifteen working days and for a shorter notice than fifteen working days, an amount equal to that for the period of which such notice falls short of fifteen days.” Clause 10 of the Contract of Engagement enables the National Health Mission (NHM) to terminate the services of an employee at any time if the employee is found to be guilty of any insubordination, intemperance or other misconduct or nonperformance/non-cooperation. The exigencies covered by Clause 10 are in addition to the procedure provided for under Clause 13 of the Contract of Engagement. Clause 13 obligates the National Health Mission to sever the relationship by giving the employee an amount equal to the employee’s consolidated **W.A. No.360/2023** **-7-** emoluments of fifteen working days. In the case on hand, despite noticing a situation attracting one or the other exigencies covered by Clause 10 of the Contract of Engagement, the National Health Mission preferred to take recourse to Clause 13 of the Contract of Engagement and without a stigma terminated the contract. Merely because a reply is given in the counter affidavit to the averments made in the writ petition, it cannot be inferred or interpreted that Ext.P6 is resulting in stigma and is a result of any enquiry conducted against the appellant. It is, at best, a case where the National Health Mission desired to dispense with the appellant’s services by paying emoluments in lieu of the notice period. The circumstances enabling a decision as communicated in Ext.P6 do not warrant the interference of this Court. 5.1 We have perused the judgment relied on by the Counsel for the appellant, and we are convinced that the **W.A. No.360/2023** **-8-** circumstances considered by the Supreme Court are distinguishable and cannot be made applicable to the facts of the case on hand. The view taken by the learned Single Judge is correct and tenable. The appeal fails - Dismissed. Sd/S.V.BHATTI JUDGE Sd/BASANT BALAJI JUDGE jjj **-9-** ## **W.A. No.360/2023** ## APPENDIX OF WA 360/2023 PETITIONER ANNEXURES Annexure I TRUE COPY OF THE ORDER PAN/14760/2020-E9 (DP) DATED 12.01.2021, ISSUED BY THE DIRECTOR OF PANCHAYATS. Annexure II TRUE COPY OF G.O. (RT.) NO. 1067/2021/LSGD DATED 01.06.2021, ISSUED BY THE SPECIAL SECRETARY. Annexure III TRUE COPY OF THE COMMON JUDGMENT DATED 27.09.2021 IN W.A NO. 807/2021 AND W.A NO. 925/2021. Annexure IV TRUE COPY OF THE JUDGMENT IN WP(C) NO.34541/2017 DATED 21.01.2019 OF THIS HON'BLE HIGH COURT. Annexure V TRUE COPY OF THE JUDGMENT IN WP(C) 26934/2022 DATED 02.12.2022 OF THIS HON'BLE COURT.