The terms and conditions did not contemplate a hearing before the issuance of the order of termination: High Court Of Sikkim

THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE W.P.No. 321 ….. Petitioner Ms. Manju Chettri W o Shri Bishal Chettri R o Lower Sichey P O Gangtok P.S. Sadar Thana Gangtok East Sikkim 737102. Represented by and through Chief Secretary Government of Sikkim Tashiling Gangtok. East Sikkim 737101. 1. State of Sikkim 2. Power Department 3. Teesta Urja Limited 4. Manager HR & A 5. Mr. Arvind Kumar Through the Managing Director Local Office Near Manan Kendra Pintsho Namgyal Building Development Area Gangtok East Sikkim 737101. Human Resource & Administration Teesta Urja Limited East Sikkim 737101. Executive Chairman and Nominee Director of Government of Sikkim Local Office Near Manan Kendra Represented by and through PCE cum Secretary Government of Sikkim Power Secretariat Kazi Road Gangtok East Sikkim 737101. W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. Pintsho Namgyal Building Development Area Gangtok East Sikkim 737101. ….. Respondents Application under Article 226 of the Constitution of Mr. J. B. Pradhan Senior Advocate with Mr. Bhusan Nepal and Mr. D.K. Siwakoti Advocates for the Mr. Sudesh Joshi Additional Advocate General for the State respondent nos. 1 & 2. Date of hearing : 21.10.2021. ORDERBhaskar Raj Pradhan J. This writ petition is listed for admission hearing before issuance of notice. The learned Additional Advocate General is present on advance notice. 2. Aggrieved by the order of termination dated 09.09.2020 passed by the 3rd respondent discharging her contractual service with immediate effect the petitioner has preferred the present writ petition under Article 226 of the Constitution of India. The petitioner has prayed for a declaration that the order of termination is illegal and arbitrary and in violation of principles of natural justice. She has also prayed for reinstatement in service with all consequential benefits. W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. 3. Mr. J. B. Pradhan learned Senior Advocate representing the petitioner took this court through the writ petition the order of termination the appointment order dated 15.07.2015 and the representation made to the Hon’ble Chief Minister by the petitioner dated 13.09.2020 in which there is an endorsement to the Executive Chairman of the 3rd respondent to consider her case on special ground. It is submitted that in spite of the endorsement when the 3rd respondent failed to consider the petitioner’s case she was compelled to approach this court. 4. This court has perused the writ petition and the documents attached therewith. Although the petitioner seeks a declaration that the order of termination is arbitrary and in violation of principles of natural justice she has failed to demonstrate how it is so. A perusal of the offer letter dated 16.06.2015 and the appointment order dated 15.07.2015 makes it evident the petitioner’s appointment was contractual. Contractual service governed by the terms and conditions of the contract. Clause 2 of the letter of appointment provides that the probation is to be for an initial period of 6 months from the date of joining which could however be extended depending upon her performance at the sole discretion of the W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. management. It was further provided that the petitioner would continue to be on probation until and unless the completion of probation is confirmed in writing by the Management. Admittedly there is no such confirmation in writing by the 3rd respondent. 5. Clause 9 provides for termination. The 3rd respondent has reserved their right to terminate the petitioner’s service by giving one month notice in writing or one month pay in lieu thereof. The order of termination sought to pay one month pay in lieu of the notice in terms of clause 9 of the appointment letter dated 15.07.2015. Clause 16 of the letter of appointment provided that in case the terms and conditions of the offer letter are acceptable to the petitioner the duplicate copy duly signed as a token of acceptance shall be returned to the 3rd respondent. The petitioner has signed on the duplicate copy of the offer letter dated 16.06.2015 as a token of acceptance of the offer which provided that the appointment letter with detailed terms and conditions would be issued subsequently on her joining. It is quite evident that the petitioner having served the 3rd respondent for a little more than 5 years had accepted the terms and conditions. The terms and conditions did not contemplate a hearing before issuance of the order of W.P.No. 321 Manju Chettri vs. State of Sikkim and Ors. termination. In the matter of this nature the scope is limited. A writ court under Article 226 is required to examine whether the petitioner’s right conferred by part III of the Constitution of India or her statutory right has been violated by any action of the Government authority or person. From what has been placed before this court the act of the 3rd respondent is not violative of the rights conferred by part III of the Constitution of India or any other statutory rights. It is neither arbitrary nor illegal. In view of the above this court is of the considered view that the writ petition is not maintainable. It is accordingly dismissed. However the petitioner is free to make such representation to the 3rd respondent if she so desires to consider her case sympathetically. Judge Bhaskar Raj Pradhan ) Approved for reporting:Yes No :Yes No Internet 

Summary: A writ court under Article 226 was required to examine whether the petitioner’s right conferred by part III of the Constitution of India or her statutory right was violated by any action of the Government, authority or person. Such an opinion was held by The Hon’ble High Court Of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Ms. Manju Chettri Vs. State of Sikkim and Ors [W.P. (C) No. 34 of 2021]. The facts of the case were associated with an application under 226 of the Constitution of India. The writ petition was listed to admit the issuance of notice. The petitioner was aggrieved by the order passed by the 3rd respondent. The said respondent discharged the petitioner from her contractual service. The petitioner prayed for a declaration and stated that her contract termination was illegal and violated the principles of natural justice. She also prayed for restoring her service with all benefits. The counsel, Mr. J. B. Pradhan representing the petitioner stated that there is an endorsement to the Executive Chairman of the 3rd respondent to consider her case on the special ground. The Hon’ble Court stated that the petitioner had failed to prove that how the termination of the contract was illegal, arbitrary and violated natural justice. It’s evident that contractual service is governed by the terms and conditions of the contract. Therefore, according to clause 2 of the letter of appointment, initially, the probation was for 6 months and can be extended upon her performance. It seemed that the petitioner signed all the terms and conditions but the T&amp;Cs were not looked at thoroughly before order issuance.  Considering all the facts and submissions, The Hon’ble Court ruled out “… From what has been placed before this court, the act of the 3rd respondent is not violative of the rights conferred by part III of the Constitution of India or any other statutory rights. It is neither arbitrary nor illegal… In view of the above, this court is of the considered view that the writ petition is not maintainable. It is accordingly dismissed. However, the petitioner is free to make such representation to the 3rd respondent, if she so desires, to consider her case sympathetically.”