The Kerala High Court recently held that contractual employees cannot be terminated on the ground of ‘unsatisfactory performance’ of service without the issuance of notice or finding to that effect.
Setting aside an order passed by Mananthavady Municipality by which the service of petitioners at Ayush NHM Homeopathic Dispensary was discontinued, Justice Anu Sivaraman said that the primary reason for termination of services of the contract was that their services had been found to be unsatisfactory.
“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,” the court said.
The court further noted that even in case the contention of the respondents is that the petitioners were not appointed after a 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.
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“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 perversive,” said the bench.
It was also submitted that there was no performance appraisal carried out in respect of the petitioners and it was only on the subjective satisfaction of the respondents that the decision to terminate their services was taken.
In the counter affidavit submitted by the municipality, it was contended that following the directions of the court in the earlier round of litigation, the Director had concluded that the government orders that were relied on were not applicable to the petitioners and they were thus, not entitled to continue in service.
The municipality further argued that the petitioners were only contractual employees and they did not have any claim for permanent appointment under the Panchayat. However, the question was with respect to their claim for continuance, it added.
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.
“However, this will not stand in the way of the municipality to take an appropriate action against them in accordance with law after issuing due notice,” it was added.
The petitioners were represented by Advocates Kaleeswaram Raj, Thulasi K. Raj, and Shilpa Soman. Central Government Counsel Mini Gopinath and Advocate Santharam P. appeared on behalf of the respondents. Senior Government Pleader V.K. Sunil also appeared in the case.
Source: Live law
Case Title: Tintu K. &Anr. v. Union of India &Ors.
Citation: 2023 LiveLaw (Ker) 18
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