Kerala High Court: Without issuance of Notice no Contractual Employee can be terminated

Kerala High Court: Without issuance of Notice no Contractual Employee can be terminated

The Kerala High Court ruled that contractual employees, are entitled to a notice regarding their unsatisfactory nature of their service and their services could have been terminated only on a finding being rendered on the same.

The single judge Justice Anu Sivaraman set aside an order passed by Mananthavady Municipality by which the service of petitioners- Tintu K and others at Ayush NHM Homeopathic Dispensary was discontinued. The court noted that the primary reason for termination of services of the contract was because the services rendered by the petitioners were found unsatisfactory.

The petitioners in this case were appointed as the Attender and Part-Time Sweeper at the dispensary in Mananthavady. It was contended that their appointments to the posts were done after due selection. It was submitted that orders had been issued by the Government hat appointments were made on contract basis to a particular project or scheme and it does not have to be discontinued based on general orders for discontinuance of temporary employees. Additionally, it was submitted that later Government Orders had been issued regarding continuance of temporary employees and contract appointees during the Covid period.

It was submitted that the petitioner had earlier approached this Court and an attempt was made to terminate their services and judgment was rendered directing the respondents- Union of India to permit the petitioners to continue without prejudice to the right of the Municipality to engage contract employees after paper publication and inviting application etc. It was submitted that an appeal was preferred by the petitioners and judgment was rendered directing that in case the petitioners submit a representation before the Director of Urban Affairs, the same shall be considered with notice to the Municipality as well. The applicability of the Government Orders relied on by the petitioner was also directed to be considered.

Thereafter, it was submitted that the impugned order had been passed terminating the services of the petitioners on the ground that the Government Orders relied on by the petitioners were not applicable in the instant case.

The respondents submitted that following the directions contained in the appeal, the Director had concluded that the Government Orders relied on were not applicable to the petitioners and that therefore they were not entitled to continue in service. It was contended that the petitioners were only contractual employees and that they did not have any indefeasible right to continue in service. It was further contended that when the Covid Pandemic was at its peak, the 2nd petitioner's daughter was infected with Covid and that she had attended duty suppressing the said fact and a show cause notice had been issued to her. The petitioners were not employed after undergoing a due process and that the appointment was not under Rule 9 or Rule 9A of the Kerala State & Subordinate Service Rules 1958 (in short KS&SSR), according to the respondents.

Having considered the contentions advanced on either side, the Court noted that there was a specific contention raised in the writ petition and that the petitioners had been engaged after a due process of selection and that they were not back door entrants.

The Court took note of the fact that it was not in dispute that the petitioners were contract employees and that they did not have any claim for permanent appointment under the Panchayat. However, the question regarding their claim for continuance was what was directed to be considered. The Panchayat evidently took a stand that they were terminated because of deficiencies in their services and the same was accepted by the Director.

The Court stated, "If that be so, even though the petitioners are contractual employees, they were entitled to a notice with regard to the unsatisfactory nature of their service and their services could have been terminated only on a finding being rendered on the same. In the instant case, such findings are conspicuous by their absence. Even in case the contention of the respondents is that the petitioners were not appointed after full process of selection was carried out, it is not in dispute that they have been continuing in service on contract basis from 2010 and 2016 onwards and the contention that they can be sent out of service on the specific ground of unsatisfactory performance without any notice or finding to that effect, according to me, is a perversive."

It is in this context that the court observed that without the issuance of notice, the petitioners could not have been terminated. The Court accordingly set aside the order of termination, and directed the respondents to permit the continuance of the petitioners in service as contractual employees in the municipality.