Judgment:
V.K. Ahuja, J.
1. This judgment shall dispose of the civil writ petition filed by the petitioner under Article 226 of the Constitution of India challenging the orders passed by the respondents dated 18.9.2007 and 5.3.2008.
2. Briefly stated the facts of the case are that the petitioner was engaged as a Driver, on contract basis, with the respondent Corporation for one year on 2.6.1998. The services of the petitioner were terminated on 27.11.1999. He preferred an appeal and he was re-engaged on contract basis for a period of one year w.e.f. 29.3.2000 to 28.3.2001. An agreement was also entered in between the parties on 27.90.2000. The services of the petitioner were again terminated by the respondent Corporation by invoking the provisions of Clause 5(iii) of the agreement. The petitioner filed an Original Application before the erstwhile H.P. State Administrative Tribunal for quashing of the order of termination, which was quashed on 19.10.2001 and the respondents were directed to re-engage the petitioner. The respondent/Corporation preferred a writ petition challenging the order of the Tribunal and the same was withdrawn on 7.7.2004 by the respondent Corporation.
3. Thereafter, a show cause notice was served upon the petitioner by respondent No. 3 on 9.10.2006, which was replied to by the petitioner and no fresh agreement had been entered into in between the parties. By an order, dated 18.9.2007, the contractual agreement was cancelled with immediate effect. The petitioner preferred an appeal to respondent No. 1 and also filed an Original Application before the Tribunal in the year 2008. The said Application was disposed of by the Tribunal on 11.1.2008 with the directions that the said Original Application be treated as representation to respondent No. 1. On 5.3.2008, respondent No. 1 rejected the said representation of the petitioner and being aggrieved, the petitioner had filed the present writ petition before this Court.
4. A notice of the petition was issued to the respondents, who filed their reply.
5. We have heard the learned Counsel for the parties and have gone through the record of the case.
6. The submissions made by the learned Counsel for the petitioner were that the impugned orders passed by respondent No. 1 rejecting the representation of the petitioner is mala fide and no reasons have been given and accordingly the impugned orders are liable to be set aside. It was also submitted that no fresh contract was entered in between the parties and, therefore, the respondent could not have invoked Clause 5(iii) of the agreement.
7. We have gone through the record of the case.
8. We have gone through the show cause notice issued to the petitioner on 9.10.2006 before passing the impugned order which shows that the petitioner had refused to perform the duty which was assigned to him and proceeded on leave without any sanction. The petitioner replied to the show cause notice and pleaded that he was present on duty on the relevant date. A perusal of the impugned office order dated 18.9.2007 also shows that the Regional Manager had passed the order which reads as under:
WHEREAS Sh. Prerm Lal, s/o Sh Pritam Dass, Village Ganoh PO Panjra Teh.Nurpur, Distt.Kangra, H.P. was engaged on contract basis as driver vide this office order No. HRTC/KLU/E/contractual apptt/10971103 dated 14-5-03.
AND WHEREAS Sh. Prem Lal, was served with Show Cause Notice vide No. 5192 dated 9-10-2006 for refusing the duty with Kullu-Jalugran bus service on dated 2-9-2006 and his previous repeated misconducts from time to time with his superiors and refusing duties so assigned to him.
AND WHEREAS on 18-9-2007 Sh. Prrem Lal, driver was found carrying 5 Nos. spring leaves from the workshop premises unauthorizedly.
Now, therefore, the undersigned has come to the conclusion that Sh. Prem Lal, driver (on contract) is not fit to be retained in service of the corporation. As such in accordance with clause No. 5(iii) of the agreement the contractual agreement in respect of Sh. Prerm Lal, driver (on contract) is hereby cancelled with immediate effect.
9. The petitioner preferred an appeal, dated 24.9.2007. A perusal of the order dated 5.3.2008 passed by the Managing Director of the respondent Corporation shows that after hearing the petitioner in person and after careful consideration of the record of the whole case, the Managing Director had come to the conclusion that the petitioner had not reformed himself inspite of opportunities and he has committed acts of omission and commission and had disobeyed the orders of his superiors.
10. It was also observed in the said order that earlier too the petitioner was disengaged twice and but when he was reengaged, he failed to amend himself. Accordingly, the appeal preferred by the petitioner was rejected.
11. It is, therefore, clear form the order passed by the Appellate Authority that he had considered the facts and the whole record and accordingly had concluded that the petitioner was not fit to be retained in service. The petitioner was employed on contract basis by the respondent Corporation and according to the agreement referred to in the impugned order, dated 18.9.2007, the provisions of Clause 5(iii) of the agreement were invoked, which agreement was in regard to the contractual employment of the petitioner. It is clear from a perusal of the pleadings made by the petitioner that though earlier an agreement was entered in between the parties but when he was re-engaged on 31.3.2000, no fresh agreement was entered into on 15.5.2007 when the period of contract was over. The agreement, dated 1.6.2006, is on the record and a perusal of the same shows that the contract was for a period of one year w.e.f. 17.5.2006 to 16.5.2007. The services of the petitioner were to stand terminated on the expiry of this period, but it appears that no fresh agreement was executed and the petitioner continued to be in service. Clause 5(iii) to which a reference has been made in the earlier agreement or in the impugned order passed by the respondent Corporation is not attached with the record in which Clauses No. 1 to 3 and 7 to 22 are existing. However, it is clear that if no formal agreement was entered in between the parties, even then the employee was liable to comply with the orders of the Corporation passed from time to time as is clear from a perusal of Clause 2 of the Agreement. Moreover, the employment in question was contractual, which could be terminated by the employer if the employer is not satisfied with the services being rendered by the employee. Accordingly, if the petitioner failed to perform the duties assigned to him by the respondent Corporation, his services could have been terminated but he has to be given an opportunity of being heard.
12. A perusal of the record mentioned above clearly shows that the petitioner was issued show cause notice, was given time to reply to the said show cause notice, which was duly replied by him and then the impugned order of termination was passed. The Appellate Authority had also heard him in person as is clear from the order and had also seen his record as well as past conduct.
13. Keeping in view the facts and circumstances of the case, it cannot be said that the petitioner was bound to be given a fresh opportunity to again commit some mistake and a perusal of the order passed by the Appellate Authority shows that he was also found carrying 5 spring leaves, for which he was given an opportunity to reply and he replied to the allegations vide his reply dated 24.9.2007. It is, therefore, clear that show cause notice was issued to the petitioner, who replied to the same, which reply was not found satisfactory and the order of termination was passed as against him, which was upheld by the Appellate Authority after due application of mind and it cannot be said that the said order suffers from any infirmity.
14. In view of the above discussion, we hold that there is no merit in the petition filed by the petitioner which is liable to be dismissed and the same is dismissed accordingly. However, the petitioner has also prayed for the relief of payment of wages for 66 days for which he had worked. In this regard, a perusal of the reply filed by the respondents shows that the payment of compensatory leave already stands made to the petitioner on 6.12.2007 vide receipt Annexure R-1, placed on the record with the reply. It is, therefore, clarified that the petitioner is not entitled to any other relief, except that in case the payment in question has not been made for the period the petitioner had worked or he was on duty, then the same shall be made to him by the respondent Corporation within a period of four months from today.
15. The writ petition stands disposed of accordingly.