Remanded

Apurba Kumar Kalita and Anr. v. the Union of India and 5 Ors.

Gauhati HC10 Sept 2019WP(C)/5691/2017

Case brief

AI extract

What is this about?

The Gauhati High Court held that impugned orders denying extension of contractual appointments and issuing show-cause notices violated natural justice due to lack of prior notice, hearing, and pre-conceived findings. The court quashed these orders and remanded the matters to the Society for a fresh decision within four weeks.

What did the court decide?

The impugned office orders and show-cause notices were quashed and set aside. The matter was remanded to the Assam State AIDS Control Society to take a conscious decision on service extension within f

Apurba Kumar Kalita and Anr. Vs the Union of… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010141332017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 5689/2017

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1:BONTI SAIKIA

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D/O SRI THANU RAM SAIKIA, R/O HOUSE NO. A-103, ORNAT RESIDENCY, JILIKA PATH, PANJABARI, OPPOSITE KALAKHETRA, GUWAHATI-37

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VERSUS

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1:THE STATE OF ASSAM and 4 ORS.

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REP. BY THE SECRETARY BY THE SECRETARY MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI-1

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2:ADDL. SECRETARY AND DIRETOR GENERAL NATIONAL AIDS CONTROL ORGANIZATION NACO NEW DELHI-1

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3:THE STATE OF ASSAM

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REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HEALTH AND FAMILY WELFARE DISPUR GUWAHATI-6

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4:ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI-22 REP. BY THE PROJECT DIRECTOR

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5:THE PROJECT DIRECTOR ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI-2

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Advocate for the Petitioner : MR.S Y AHMED

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Advocate for the Respondent : SC, HEALTH

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Linked Case : WP(C) 5691/2017 1:APURBA KUMAR KALITA and ANR. S/O LATE DHIREN CH. KALITA C/O PANKAJ DAS @ AKON RADHALAYA GANESH MANDIR PATH HOUSE NO. 12 BYE LANE NO. 8 NOONMATI GUWAHATI-781020 2: SRI SUSANTA KUMAR SAIKIA S/O SRI KUSHAL KUMAR SAIKIA R/O 7TH HEAVEN APARTMENT BLOCK 3 4TH FLOOR NEAR SARUSAJAI GATE NO.2 BETKUCHI ROAD GUWAHATI-781034 VERSUS 1:THE UNION OF INDIA and 5 ORS. REP. BY THE SECRETARY MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI-1 2:THE ADDITIONAL SECRETARY AND DIRECTOR GENERAL NATIONAL AIDS CONTROL ORGANIZATION NACO NEW DELHI-1 3:THE STATE OF ASSAM REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HEALTH AND FAMILY WELFARE DISPUR GUWAHATI-6 4:ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI-22

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5:THE PROJECT DIRECTOR ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI-22

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6:THE IN-CHARGE ADMINISTRATION/HR ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI-22 Advocate for the Petitioner : MR.N ANSARI Advocate for the Respondent : C.G.C.

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Linked Case : WP(C) 5694/2017

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1:RINI NATH BORAH W/O DIPAM JYOTI BORAH R/O SURVEY BELTOLA NEAR CENTRAL NURSING HOME GUWAHATI. VERSUS 1:THE UNION OF INDIA and 4 ORS. REP. BY THE SECRETARY MINISTRY OF HELATH AND FAMILY WELFARE NEW DELHI-1.

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2:THE ADDITIONAL SECRETARY AND DIRECTOR GENERAL NATIONAL AIDS CONTROL ORGANIZATION NACO NEW DELHI-1. 3:THE STATE OF ASSAM REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM DEPRTMENT OF HEALTH AND FAMILY WELFARE DISPUR GUWAHATI -6. 4:ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI -22 REP BY THE PROJECT DIRECTOR. 5:THE PROJECT DIRECTOR ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI -22.

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Advocate for the Petitioner : MR.N ANSARI Advocate for the Respondent : C.G.C.

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Linked Case : WP(C) 4867/2017

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1:MINTU RONGPY S/O SRI CHABIN RONGPY R/O LAKHARA NEAR AXEL PUBLIC SCHOOL P.O. SAUKUCHI P.S. GARHCHUK PIN - 781040 ASSAM

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VERSUS

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1:THE UNION OF INDIA and 4 ORS.

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REP. BY THE HEAD OF THE NATIONAL AIDS CONTROL ORGANIZATION NACO A DIVISION OF MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI-11.

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HEALTH AND FAMILY WELFARE DEPARTMENT DISPUR GUWAHATI -6.

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3:THE PROJECT DIRECTOR ASSAM STATE AIDS CONTROL SOCIETY UNDER NATIONAL AIDS CONTROL ORGANIZATION NACO KHANAPARA GUWAHATI -22 ASSAM

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4:THE ADDITIONAL PROJECT DIRECTOR ASSAM AIDS CONTROL SOCIETY UNDER NATIONAL AIDS CONTROL ORGANIZATION NACO KHANAPARA GUWAHATI -22 ASSAM.

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5:SRI MANVENDRA PRATAP SINGH PROJECT DIRECTOR ASSAM STATE AIDS CONTROL SOCIETY KHANAPARA GUWAHATI -22 ASSAM

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Advocate for the Petitioner : MR.U PATHAK Advocate for the Respondent : MRS.A DASS

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BEFORE

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HONOURABLE MR. JUSTICE UJJAL BHUYAN

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ORDER

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Date : 10-09-2019

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This order will dispose of WP(C) Nos.5689, 4867, 5691 and 5694/2017.

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2. Heard Mr. B.C. Das, learned Senior counsel, assisted by Mr. M.J. Qadir, learned counsel

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for the petitioners in WP(C) Nos.5689, 5691 and 5694/2017 and Mr. H.K. Das, learned counsel for the petitioner in WP(C) No.4867/2017. Also heard Mr. D. Saikia, learned Senior counsel, assisted by Mr. P. Nayak, learned counsel for Assam State Aids Control Society for respondent Nos.2 to 5 and Mr. S.S. Roy, learned Central Government Counsel, for respondent No.1.

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3. Though subject-matter of all the writ petitions are more or less identical relating to termination of contractual engagement of the petitioners as well as related show-cause notice, since different factual features have been highlighted by learned counsel for the parties, it is necessary to briefly set out the individual facts of each case.

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WP(C) 5689/2017

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( i ) Petitioner in this case Smt. Bonti Saikia was initially engaged on 28.07.2008 in the Assam State AIDS Control Society (Society) as Assistant Director (Document Publicity) after

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being successful in a selection process initiated through an advertisement. Initially she was appointed in the said post on contract basis for a period of one year from the date of joining. It is stated that her contractual appointment was extended from time to time.

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( ii ) Subsequently, there was another advertisement by the Society for the post of Joint Director (IEC) in the Society to which petitioner responded and participated in the selection process. Petitioner was selected and appointed on 30.11.2011 on contractual basis which appointment was extended from time to time up-to 31.03.2017. It is stated that petitioner continued to render service after 31.03.2017 though no extension order was passed.

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(iii) Petitioner has contended that she had performed her duties diligently which was appreciated by the National Aids Control Organisation of which the Society is a State Unit. Petitioner has alleged that the then Project Director of the Society was transferred on 07.09.2017 and on that day itself, he issued an office order stating that overall performance of the petitioner and three others were not at all satisfactory in respect of their areas of work, office procedure and maintenance of office decorum. Therefore, services of the four persons including the petitioner were not considered for further extension and they were deemed to have been released from the Society with effect from 31.03.2017 with the clarification that the period for which the four employees including the petitioner had worked after 31.03.2017 would be paid on pro rata basis.

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( iv ) Aggrieved, Ms. Bonti Saikia has preferred WP(C) No.5689/2017.

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( v ) This Court by order dated 14.09.2017 had issued notice and passed an interim order to the effect that impugned office order dated 07.09.2017 in so far petitioner Smt. Bonti Saikia was concerned was suspended with the further interim direction that she be allowed to

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continue as Joint Director (IEC).

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( vi ) Respondent No.5, i.e., Project Director of the Society has filed affidavit. Stand taken in the affidavit is that adverse remarks were made against the petitioner by the Reporting Officer while assessing her performance for the years 2012-2013 and 2013-2014. Recommendation was made to the petitioner to maintain cordial relation with the officers and staff of the Society and to improve inter-personal relation. Project Director had issued three show-cause notices in respect of three different matters to the petitioner on 03.11.2015, 06.11.2015 and 11.11.2015 regarding allegation of insubordination and negligence of duty as well as non-maintenance of office decorum. Highlighting this aspect of the matter, it is stated that petitioner had even lodged first information before Dispur Police Station against the then Project Director. It is stated that since performance of the petitioner was found to be not satisfactory, no fresh contract was executed with her after 31.03.2017. After obtaining approval of the higher authorities, petitioner and three others were issued release order on 07.09.2017.

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( vii ) Petitioner has filed reply affidavit to the counter-affidavit of respondent No.5 wherein she has stressed upon the satisfactory nature of her performance. She has stated that she was subjected to harassment at the hands of the Project Director which compelled her to lodge first information against him before the Dispur Police Station on 05.11.2015.

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WP(C) 5691/2017

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( i ) Shri Apurba Kumar Kalita and Shri Susanta Kumar Saikia are the two petitioners in this case. They are serving as Computer Literate Steno in the Society. Like the previous petitioner, they are also aggrieved by the impugned office order dated 07.09.2017 whereby their

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contractual service was not extended beyond 31.03.2017 and they were deemed to have been released from the Society with effect from 31.03.2017.

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( ii ) On 14.09.2017, this Court while issuing notice, passed the following order:-

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“ It is submitted by Mr. Quadir that the petitioners were initially engaged on 9.1 2.1999 as Computer Literate on being successful in a selection process initiated through an advertisement and their contractual appointment was extended from time to time. Subsequently, the petitioners were re-designated as Computer Literate Steno (CLS).

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It is submitted by Mr. Quadir that the Project Director of Assam State Aids Control Society was transferred on 7.9.2017 and on that day, he issued the impugned order refusing to grant further extension to the petitioners and two others. He also recorded an opinion that service of the petitioners along with two others is not required in public interest.

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On a specific query of the Court, Mr. Borah has submitted that the Project Director who had issued the order dated 7.9.2017 was, in fact, transferred by an order dated 7.9.2017.

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Having heard the learned counsel for the parties, the impugned order dated 7.9.2 017, so far as it relates to the petitioners, is suspended and the petitioners will be allowed to continue till the next dated fixed.”

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( iii ) Respondent No.5 has filed an affidavit almost identical to the one filed in WP(C) No.5689/2017. Impugned office order dated 07.09.2017 has been justified on the ground

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that overall performance of the petitioners were not found to be satisfactory regarding their work, office procedure and maintenance of office decorum.

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( iv ) Petitioners have filed reply affidavit reiterating the averments made in the writ petition.

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WP(C) 5694/2017

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( i ) Smt. Rini Nath Borah is the petitioner in this case. She is serving as Deputy Director in

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the Society. By the impugned office order dated 07.09.2017, her contractual service was also not extended by the Society beyond 31.03.2017 on the ground of unsatisfactory performance in the areas of work, office procedure and maintenance of office decorum.

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( ii ) This Court vide order dated 14.09.2017 had issued notice and passed the following order:-

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“ It is submitted by Mr. Quadir that the petitioner was initially engaged on 16.9. 2010 as Consultant (CSM) on being successful in a selection process initiated through an advertisement and her contractual appointment was extended from time to time. Subsequently, the petitioner was re-designated as Deputy Director (SPM).

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It is submitted by Mr. Quadir that the Project Director of Assam State Aids Control Society was transferred on 7.9.2017 and on that day, he issued the impugned order refusing to grant further extension to the petitioner and 3 (three) others . He also recorded an opinion that service of the petitioner along with three others is not required in public interest.

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On a specific query of the Court, Mr. Borah has submitted that the Project Director who had issued the order dated 7.9.2017 was, in fact, transferred by an order dated 7.9.2017. Having heard the learned counsel for the parties, the impugned order dated 7.9.2 017, so far as it relates to the petitioner, is suspended and the petitioner will be allowed to continue till the next dated fixed. ”

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( iii ) Respondent No.5 has filed an identical affidavit justifying and supporting the impugned office order dated 07.09.2017.

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( iv ) Petitioner has filed reply affidavit.

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WP(C) 4867/2017

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( i ) Shri Mintu Rongpy is the petitioner in this case. He was offered appointment in the Society as Consultant (Voluntary Blood Donation) on contractual basis for a period of one

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year vide order dated 21.04.2010 issued by the Project Director of the Society. Petitioner accepted the said offer and entered into an agreement with the Society on 27.04.2011.

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( ii ) Project Director of the Society issued show-cause notice to the petitioner on 04.08.2017 alleging corrupt practice by the petitioner. Therefore, he was directed to showcause on or before 05.08.2017 as to why he should not be relieved from his duties. Till filing of show-cause reply, petitioner was asked to stay away from any official work. Petitioner submitted reply on 05.08.2017 stating that time given for submitting reply was wholly inadequate which prevented him from submitting a proper show-cause reply. Nonetheless he submitted his reply denying the allegations made against him.

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( iii ) Apprehending imminent termination from service, petitioner approached this Court by filing WP(C) No.4867/2017.

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( iv ) This Court by order dated 11.08.2017 had issued notice with an interim direction that if service of the petitioner had not been discontinued in the meantime, the same should not be discontinued until further orders. Relevant portion of the order dated 11.08.2017 is extracted hereunder:-

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“ It is submitted by Mr. Das, learned counsel appearing for the petitioner that not even one day’s time was granted to the petitioner to meet the allegations as made against the petitioner in the impugned Show-cause notice dated 04.08.2017 and, as such, the Show-cause notice displays a pre-conceived mind of the respondent authorities to discontinue the service of the petitioner as Assistant Director in Assam Aids Control Society. But, nonetheless, the petitioner had sub mitted his reply to the Show-cause notice. It is submitted by Mr. Das, learned counsel for the petitioner that the petitioner is still continuing in service as Assistant Director of Assam Aids Control Society.

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Having regard to the above, it is directed that if the service of the petitioner has

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not been discontinued in the meantime, the same shall not be discontinued until further orders.”

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( v ) Petitioner Shri Mintu Rongpy thereafter filed an Interlocutory Application which has been registered as IA(C) No.3052/2017 alleging that after the interim order was passed by this Court on 11.08.2017, petitioner was transferred to Blood Bank, Hailakandi Civil Hospital, Hailakandi. This Court by order dated 08.09.2017 directed that petitioner would be allowed to continue to function as Assistant Director (VBD) in the Society at Guwahati.

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( vi ) Respondent No.3 has filed affidavit stating that petitioner is incompetent to hold the post of Assistant Director (VBD). Therefore, extension of the petitioner’s contractual service

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with effect from 01.04.2017 has been kept pending as his performance was found to be unsatisfactory. Issuance of show-cause notice has been justified.

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4. Mr. B.C. Das, learned Senior counsel for the petitioners in WP(C) Nos.5689, 5691 and 5694/2017 argued that a perusal of the impugned order would go to show that it is stigmatic in nature. Even in a case of contractual appointment, if the termination is stigmatic, it would have to be preceded by a notice and hearing. In the absence thereof, such stigmatic order cannot be sustained. In support of his submissions, Mr. Das has referred to a large number of decisions.

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5. Mr. Saikia, learned Senior counsel for the respondents, fairly acknowledges that going by the tone and tenor of the impugned office order, a view can be taken that the same is stigmatic in nature. However, he would argue that even if such stigmatic order is interfered with by this Court as being legally impermissible, question still remains regarding continued contractual engagement of the petitioners since their contractual engagement had ended on 31.03.2017 and they are continuing in service only on the basis of Court orders. Mr. Saikia

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has also referred to a large number of decisions in support of his contentions.

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6. In his reply submission, Mr. Das strenuously argued that in a case of this nature, notwithstanding the fact that petitioners are contractual employees, if the termination is stigmatic or non-extension of service is stigmatic, a writ Court can mould the relief in favour of the petitioners by directing the respondents to consider continuance of contractual engagement. Otherwise, a victim of stigmatic termination would continue to suffer notwithstanding grant of relief by the writ Court which would be against the very concept of justice itself.

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7. Mr. H.K. Das, learned counsel for the petitioner in WP(C) No.4687/2017, drives home the point that there is factual distinction between the case of his client and that of the other four petitioners inasmuch as there is no termination order in respect of his client. What he has assailed in the writ petition is the purported issuance of show-cause notice to the petitioner and the wholly inadequate time given for submission of show-cause reply which reflects a pre-conceived mind. His further contention is that even in a case of contractual appointment, if the authorities take resort to disciplinary action by issuing show-cause notice, then they are bound to follow the laid down procedure including principles of natural justice and in such a case, it would not be open to the authorities to contend that since contractual period has expired, service of the petitioner cannot be directed to be extended. Such a stand would amount to travesty of justice.

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8. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.

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9. From the materials on record, it is evident that all the five petitioners were in

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contractual appointment with the Society, the contractual appointment being till 31.03.2017. In respect of the petitioners in WP(C) No.5689, 5691 and 5694/2017, it is seen that further extension was denied to them and they were deemed to have been released from the service of the Society with effect from 31.03.2017 on the ground that their overall performance was not at all satisfactory in respect of their areas of work, office procedure and maintenance of office decorum. Two things are discernible from this order – this is an order passed on 07.09.2017 after expiry of the contract period on 31.03.2017; secondly, this order was passed considering unsatisfactory performance of the four petitioners named therein regarding their work, office procedure and maintenance of office decorum.

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10. On the face of it, the said order appears to be stigmatic in nature. However, further deliberation on this aspect of the matter is considered not necessary because of the fair stand taken by Mr. Saikia admitting that the order is stigmatic in nature. If an order is stigmatic in nature, it will entail adverse civil consequences upon the petitioners. If that be so, then such an order was required to be preceded by at least a notice and hearing which appears to be absent in this case. Therefore, impugned order is in violation of the principles of natural justice and cannot be sustained.

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11. Having interfered with the impugned order in the manner as indicated above, moot question still remains as to what consequences would follow upon such setting aside of a stigmatic order considering the fact that contractual appointment of the petitioners had ended on 31.03.2017.

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12. From the impugned office order, it is seen that the same was issued on 07.09.2017 long after expiry of the contract period on 31.03.2017 meaning thereby that respondents

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themselves had utilized the services of the petitioners on contractual basis post 31.03.2017 till 07.09.2017. Thereafter, this Court had issued interim orders by virtue of which petitioners have continued in service.

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13. Court is in agreement with the submission of Mr. Saikia that no direction can be issued to the respondents to extend the contractual service of the petitioners, the same being bound by the contract entered into between the parties. It is within the domain of the respondents. Whether a contractual appointment should be continued further beyond the contractual period or not is a matter to be decided by the employer taking into consideration a host of factors. Certainly, Court cannot step into the shoes of the employer and direct extension.

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14. Having said that it has also to be borne in mind that while discontinuing extension of contractual appointment of the petitioners, respondents were influenced by the stigmatic remarks made against the petitioners which has now been held by this Court as being in violation of the principles of natural justice and legally untenable. It is difficult to fathom as to what would have been the views of the employer regarding extension or otherwise of the contractual service of the petitioners had the stigmatic remarks not been part of the record. At least Court cannot come to any conclusion in this regard.

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15. In such circumstances, Court is of the view that the matter is required to be looked into afresh by the respondents dehors the stigmatic remarks having been interfered with by this Court.

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16. Accordingly, while impugned office order dated 07.09.2017 is set aside, matter is remanded back to the Assam State AIDS Control Society to take a conscious decision on the extension or otherwise of the contractual service of the petitioners without being influenced

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by the office order dated 07.09.2017 and the stigmatic remarks made therein. Let such decision be taken within a period of four weeks from the date of receipt of a certified copy of this order. Till such decision is taken, protection granted to the petitioners by this Court would continue.

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17. In so far the case of Shri Mintu Rongpy is concerned, here also Court is of the view that if the respondents wanted to take disciplinary action against him, then laid down procedure including principles of natural justice and fairness was required to be followed. Issuing show-cause notice on 04.08.2017 and directing the petitioner to submit reply on the very next date cannot be said to be a fair procedure. In fact, a perusal of the show-cause notice would go to show that respondents had come to certain definite findings against the petitioner regarding involvement in corrupt practice and he was only asked to show-cause regarding removal from his contractual service. Such a show-cause notice cannot be said to have complied with the requirements of the principles of natural justice. Accordingly, showcause notice dated 04.08.2017 is set aside and quashed.

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18. However, that again leads to the question as to what happens to the case of the petitioner since his contractual service also ended on 31.03.2017. In the opinion of the Court, course of action suggested in the case of the four petitioners as above should also be applied to the case of the present petitioner.

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19. Accordingly and in the light of the above, matter is remanded back to the Assam AIDS Control Society to take a conscious decision regarding extension or otherwise of the contractual service of the petitioner dehors the show-cause notice which has been interfered with by this Court. Let such decision be taken within a period of four weeks from the date of

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receipt of a certified copy of this order. Till such decision is taken, protection granted to the

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petitioner by this Court would continue.

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20. All the writ petitions are accordingly disposed of in the above terms.

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JUDGE

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Comparing Assistant

Apurba Kumar Kalita and Anr. v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Apurba Kumar Kalita and Anr. v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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