Allowed

Abul Kalam Barbhuiya v. the State of Assam and 5 Ors.

Gauhati HC7 Jun 2023WP(C)/3259/2023

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition challenging the termination of a contractual employee. Following an order terminating the petitioner without a hearing, the court set aside the impugned order and directed reinstatement, relying on a recent precedent favoring natural justice for contractual employees.

What did the court decide?

The impugned order of termination dated 05/11/2022 is set aside. The petitioner is reinstated and permitted to be placed under suspension pending enquiry.

Abul Kalam Barbhuiya Vs the State of Assam and 5 Ors. — Service and Employment | Gauhati HC (2023)

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GAHC010120872023

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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)/3259/2023

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ABUL KALAM BARBHUIYA

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S/O- LATE MOYUB ALI BARBHUIYA, VILL.- ALGAPUR PART-II, P.O. KALIBARI BAZAR, P.S. ALGAPUR, DIST. HAILAKANDI, ASSAM, PIN788150.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS

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REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT, DISPUR, GUWAHATI-6.

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2:THE COMMISSIONER

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PANCHAYAT AND RURAL DEVELOPMENT ASSAM PANJABARI GUWAHATI-37.

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3:THE PROJECT DIRECTOR

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DISTRICT RURAL DEVELOPMENT AGENCY KARIMGANJ SETTLEMENT ROAD DIST. KARIMGANJ ASSAM PIN- 788712.

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4:THE BLOCK DEVELOPMENT OFFICER DULLAVCHERRA DEVELOPMENT BLOCK P.O. DULLAVCHERRA DIST. KARIMGANJ ASSAM PIN- 788736.

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5:SIDDIQUE AHMED HONBLE MEMBER OF LEGISLATIVE ASSEMBLY (MLA) SOUTH KARIMGANJ VILL.- DHALOPAR P.O.ASHALKANDI P.S. PATHERKANDI DIST. KARIMGANJ ASSAM PIN-788723.

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6:KRIPANATH MALLAH HONBLE MEMBER OF PARLIAMENT (MP) LOK SABHA VILL. AND P.O. BAIDYANAGAR P.S. RAMKRISHNA NAGAR DIST. KARIMGANJ PIN- 788734

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Advocate for the Petitioner : MR. S B LASKAR

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Advocate for the Respondent : SC, P AND R.D.

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 07/06/2023

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Heard Mr. S. B. Laskar, learned counsel for the writ petitioner. Also heard Mr. S. Dutta, learned Standing Counsel, Panchayat and Rural Development Department, Assam, appearing for the respondents.

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The writ petitioner was engaged as an Accredited Engineer (Diploma Holder) by the Project Director, District Rural Development Agency (DRDA), Karimganj, vide order dated 18/11/2010 on contractual basis and since then, he was serving in the aforesaid post. By the order dated 05/11/2022, the contractual service of the petitioner has been terminated on the ground of alleged irregularities committed by him without giving the petitioner an opportunity of being heard in the matter.

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Mr. Laskar submits that similar matters have been disposed of by this Court by judgement and order dated 01/06/2023 by interfering with the similar orders of termination from service and remanding the matter for proceeding afresh after giving the petitioner an opportunity of being heard in the matter. Since the impugned order dated 05/11/2022 is stigmatic and is based on allegation of misconduct, a similar order be passed in this case as well.

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The learned departmental counsel has also admitted in his usual fairness that the petitioner’s case would be covered by the order dated 01/06/2023 passed by this Court in WP(C) 1785/2022 and the connected writ petitions and, therefore, he would have no objection if a similar order is passed in the present case as well.

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This is to be noted herein that aggrieved by similar orders of termination issued by the Department without giving an opportunity to the contractual employees to show cause, a number of writ petitions were preferred before this Court, which were disposed of by this Court by order dated 01/06/2023 by making the following observations and directions :-

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“The order of termination from service issued to the petitioner has the trappings of an order of dismissal/removal from service. Therefore, such an order could not have been issued without giving the employee an opportunity of being heard, even if the same pertains to a temporary and / or contractual employee. This is for the simple reason that such an action, besides causing serious prejudice to the interest of the employee, would also have a bearing on the prospect of his future employments.

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Situated thus, this Court is of the unhesitant opinion that the order of termination dated 30/10/2021 is unsustainable in the eyes of law. Therefore, the same is set aside. The respondents are directed to reinstate the petitioner back in service within 10(ten) days from the date of receipt of a certified copy of this order. After reinstatement of the petitioner, it would be open for the respondents to proceed against him, in accordance with law, by serving proper notice indicating specific charges brought against the petitioner.

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In doing so, it would also be open to the department to place the petitioner under suspension pending drawal/conclusion of the departmental proceeding, if so advised. However, in such an event, the petitioner will be paid subsistence allowance. The authorities shall also

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strictly comply with the requirement of the Rules as well as Principles of Natural Justice while conducting the enquiry.”

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Since there is no dispute about the fact that the case of the writ petitioner is also similar and hence, covered by the aforesaid judgement and order dated 01/06/2023, this writ petition is also disposed of by setting aside the order of termination dated 05/11/2022 by giving similar liberty to the department to proceed afresh against the petitioner by serving proper notice upon him. In the meantime, upon reinstatement of the petitioner back in service, it will be open for them to place the petitioner under suspension pending drawal/conclusion of the departmental proceeding.

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With the above observations, this writ petition stands disposed of.

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JUDGE

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sukhamay

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Comparing Assistant

Abul Kalam Barbhuiya v. the State of Assam and 5 Ors.

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Abul Kalam Barbhuiya v. the State of Assam and 5 Ors.

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