Mani U. v. Payyannur Municipality and Hospital Management Committee (HMC), Government Taluk Hospital, Payannur, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** ## **WP(C) NO. 14004 OF 2019** ## **PETITIONER:** **MANI U. AGED 45 YEARS DRIVER, HOSPITAL MANAGEMENT COMMITTEE, GOVERNMENT TALUK HOSPITAL, PAYANNUR, P.O. PAYANNUR, KANNUR DISTRICT-670 307. BY ADV. SRI. P.M.PAREETH** ## **RESPONDENTS:** - **1 PAYYANNUR MUNICIPALITY REPRESENTED BY ITS CHAIRPERSON, P.O.PAYANNUR, KANNUR DISTRICT-670 307.** - **2 HOSPITAL MANAGEMENT COMMITTEE (HMC), GOVERNMENT TALUK HOSPITAL , REPRESENTED BY ITS MEMBER SECRETARY, P.O.PAYANNUR, KANNUR DISTRICT- 670 307.** - **3 SUPERINTENDENT, GOVERNMENT TALUK HOSPITAL AND MEMBER SECRETARY HMC, P.O.PAYYANUR, KANNUR DISTRICT- 670 307.** - **4 CHAIRPERSON PAYANNUR MUNICIPALITY, P.O.PAYANNUR, KANNUR DISTRICT-670 307** **BY ADVS.** **SRI. PREMCHAND R. NAIR, GOVERNMENT PLEADER SRI.M.SASINDRAN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 14004 OF 2019 2 ## **JUDGMENT** ## **Dated this the 25[th] day of February, 2022** The petitioner was appointed as Ambulance Driver at the Government Taluk Hospital, Payyannur on 17.06.2013 based on an interview conducted by the Hospital Management Committee. The period of appointment, which was for 179 days, was renewed thereafter, till the issuance of Ext.P7 order terminating the petitioner’s service. The termination was based on allegation of indiscipline and insubordination. The writ petition is filed seeking to set aside Ext.P7 order and for a declaration that the petitioner shall not be dismissed from service without a detailed enquiry, granting reasonable opportunity and following the prescribed procedural formalities. By interim order dated 04.06.2019, this Court directed the respondents to reinstate the petitioner in service provisionally, subject to further orders in the writ petition. Accordingly, the WP(C) NO. 14004 OF 2019 3 petitioner was reinstated in service. He is presently aggrieved by Ext.P13 order by which the Superintendent, Taluk Hospital, Payyannur has ordered the petitioner’s dismissal with effect from 17.01.2022, the date on which his contract comes to an end. 2. Learned Counsel for the petitioner relied on the decisions in **Jagdish Mitter v. The Union of India [AIR 1964 SC 449] and Mangal Singh v. The Chairman, National Research Development Corporation and others [MANU/** **DE/1526/2009],** to contend that even in the case of temporary employees, there cannot be any stigmatic or punitive termination, without conducting proper enquiry. Reliance is also placed on Exts.P8 and P9 judgments to contend that under identical circumstances, this Court had directed reinstatement of another employee. According to the learned Counsel, the respondents have committed gross impropriety by dismissing the WP(C) NO. 14004 OF 2019 4 petitioner from service, during the pendency of this writ petition. According to the Counsel, the action of the respondents is intended to subvert the proceedings pending before this Court. Finally it is contended that Ext.P7 order imputing indiscipline and insubordination having been issued against the petitioner, the petitioner should be afforded opportunity to disprove the allegation and erase the stigma. 3. At the instance of the petitioner, the learned Government Pleader has produced the proceedings of the Hospital Management Committee, based on which Ext.P13 order was issued. The proceedings reveals that decision was taken by the Hospital Management Committee not to renew the petitioner’s appointment after the contract period and if necessary, to appoint persons from an existing rank list. 4. Learned Government Pleader submitted that the decision of the Hospital Management Committee WP(C) NO. 14004 OF 2019 5 had decided to do away with the service of the petitioner, since the vehicle driven by him is entrusted at the Kannur Regional Workshop for repairs and can be used only after obtaining fitness certificate. It is submitted that the pendency of this writ petition, which pertains to the disciplinary action taken against the petitioner, cannot be a reason for compelling the respondents to continue the petitioner’s service indefinitely. There are valid reasons for not continuing the petitioner’s contract and Ext.P13 order is not stigmatic or punitive. Further, the employer having given up the proceedings that had culminated in Ext.P7, the petitioner cannot demand for a departmental enquiry into those allegations. 5. There can be no doubt regarding the proposition that even in the case of temporary employees, an enquiry has to be conducted before dismissal, if the termination is stigmatic or punitive. At the same time, the pendency of this writ petition WP(C) NO. 14004 OF 2019 6 and an interim order directing reinstatement of the petitioner, finding prima facie merit in the challenge against Ext.P7 cannot be a reason for continuing his service indefinitely. Indisputably, the petitioner was engaged on contract basis for a period of 179 days at a time. For reason of the contract having been continued for some years thereafter, the petitioner cannot claim either regularisation or permanency. The position is no more res integra in view of the decision of the Constitution Bench of the Apex Court in **Secretary, State of Karnataka and ors. v. Umadevi and ors. [2006 (4) SCC 1].** Therefore, the question is whether termination of the petitioner under Ext.P13 is stigmatic or not. From the decision of the Hospital Management Committee and the reasons pointed out by the learned Government Pleader, it is evident that decision of the Hospital Management Committee is neither stigmatic nor punitive. It is also clear that the proceedings that had culminated in Ext.P7 order has been given up WP(C) NO. 14004 OF 2019 7 by the respondents. As such, the stigma arising from those allegations is also does not subsist. In such circumstances, the contention that the petitioner should be allowed to continue in service till a decision is rendered in this writ petition or till an enquiry is conducted and decision taken on the allegation leading to Ext.P7 order, cannot be countenanced. In the result, the writ petition is dismissed. **Sd/-** **V.G.ARUN JUDGE** NB/25-2 WP(C) NO. 14004 OF 2019 8 ## **APPENDIX OF WP(C) 14004/2019** ## **PETITIONER’S EXHIBITS** **EXHIBIT P1 A TRUE PHOTOCOPY OF THE KERALA PANCHAYATH RAJ (MANAGEMENT COMMITTEE OF PUBLIC HEALTH INSTITUTIONS) RULES 2010.** **EXHIBIT P2 A TRUE PHOTOCOPY OF THE IDENTITY CARD ISSUED BY THE 3RD RESPONDENT EXHIBIT P3 A TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 8.4.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P4 A TRUE PHOTOCOPY OF THE REPLY DATED 9.4.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P5 A TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 29.4.2019 EXHIBIT P6 A TRUE PHOTOCOPY OF THE REPLY DATED 4.5.2019 EXHIBIT P7 A TRUE PHOTOCOPY OF THE ORDER DATED 6.5.2019 ISSUED BY THE SECOND RESPONDENT EXHIBIT P8 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 28.2.2018 IN W.P.(C) NO 10746/2017 EXHIBIT P9 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 6.2.2019 IN W.P.(C) NO. 31134/2018 EXHIBIT P10 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 29/3/2017 IN W.P.(C) NO.10746/2017 RELATING TO EXHIBIT P8 EXHIBIT P11 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 9/10/2018 IN W.P.(C) NO.31134/2018 RELATING TO EXHIBIT P9 EXHIBIT P12 A TRUE PHOTOCOPY OF THE ORDER NO.G-1060/2019 DATED 07-06-2019 ISSUED BY THE THIRD RESPONDENT EXHIBIT P13 A TRUE PHOTOCOPY OF THE ORDER NO.G-985/2016 DATED 17-01-2022 ISSUED BY THE THIRD RESPONDENT** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**