Mrs Juri Barman Vs the State of Assam and 4 Ors.

Heard Mr. D. S. Deka, learned counsel, appearing on behalf of the appellant. Also heard Mr. Nayanjyoti Khataniar, learned standing counsel, Secondary Education Department, appearing on behalf of all the respondents.

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2. As agreed to by the learned counsels appearing for the parties, the present intra-Court appeal was taken-up for consideration and is being disposed of by this order.

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3. The present intra-Court appeal has been instituted by the appellant, herein, assailing the judgment & order, dated 20.02.2025, passed by the learned Single Judge in WP(c)247/2023, dismissing the writ petition and thereby, rejecting the claim of the appellant for an interference with a communication, dated 25.06.2020, by which, her contractual engagement was terminated on account of having remained unauthorizedly absent from her duty.

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4. The issue arising for adjudication in the present proceeding, is noticed as under:

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Page No.# 3/14

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The appellant, herein, was engaged by the School Management and Development Committee of Haibargaon High School, Nagaon, on 10.06.2010, as an Assistant Teacher, on contractual basis. The appellant entered into an agreement with the School Management and Development Committee of the said school for the purpose and the said contractual engagement was being extended from time to time. The contractual engagement of the appellant, herein, was to continue till the month of July, 2020.

¶31

It is to be noted that the appellant, herein, had applied for Child Care Leave(CCL) w.e.f. 01.08.2019 to 31.03.2020. The application of the appellant, in this connection, while being processed and an approval thereto, still to be granted; the appellant, herein, proceeded on leave and continued to remain away from her duty. The leave, as sought for by the appellant, herein, not having been granted and she having remained unauthorizedly absent from her duty; the School Management and Development Committee of Haibargaon High School, Nagaon, in terms of the provisions existing in the contractual engagement, on consideration, arrived at a decision to terminate the contractual engagement of the appellant. Accordingly, the Headmaster of Haibargaon High School, Nagaon, vide a communication, dated 25.06.2020, terminated the service of the appellant, herein.

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The appellant, herein, did not assail the communication, dated 25.06.2020, immediately, but had approached the writ Court by way of instituting a writ petition being WP(c)247/2023, after around 2½ years from the date, her contractual engagement was terminated.

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Page No.# 4/14

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The learned Single Judge, on considering the issue arising in the matter and after hearing the learned counsels appearing for the parties, was pleased vide judgment & order, dated 20.02.2025, to dismiss the said writ petition being WP(c)247/2023, rejecting the claim of the appellant, herein, for interference with the termination of her contractual engagement.

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The operative portion of the judgment & order, dated 20.02.2025, passed by the learned Single Judge in WP(c)247/2023, being relevant, is extracted hereinbelow:

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“ 9. The facts of the case, as submitted by the learned counsels for the parties and the pleadings, show that though the petitioner had applied for Child Care Leave for 4 months in the year 2018, the same had not been granted by the respondents. The petitioner thereafter applied for Child Care Leave again from 01.08.2019 to 31.03.2020, i.e. for a period of 8 months. However, the same was also not granted by the respondents. Despite leave not being granted, the petitioner took unauthorized leave and remained absent from the school, till issuance of the dismissal order dated 25.06.2020, which was issued on the 11th month of the absence of the petitioner.

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10. Clause 5 & 9 of the contractual agreement executed between the parties provides as follows:-

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“ 5. The services of the Party shall stand automatically terminated at the expiry of the contact period, without any necessity of the School giving any notice or notice pay to the Party and without any liability on part of the School to pay any retrenchment or other compensation or other amounts to the Party.

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9. Notwithstanding anything contained hereinabove the services of the Party may be terminated at any time by the SMC if the Party is found to be guilty of any insubordination, intemperance or other misconduct or of any breach or non performance, it being clearly understood that the School shall always invoke this clause in consultation with the President of the SMC.”

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11. The dismissal letter dated 25.06.2020 issued by the Head Master of the School is reproduced herein below as follows:- “

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(i) That it has been reported to the I/S, NDC Nagaon on dated 21/08/2019 regarding your misconduct of service allegedly committed by you failing to exercise due care and attention in the performance of your school duty.

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(ii) That you willfully left the school and remained absent negligently since October, 2018 without any information or any leave grant by the competent authority which is total violation of rule of service.

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Page No.# 5/14

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(iii) That in view of the gravity of the alleged misconduct, School Management and Development Committee (SMDC) after a thorough discussion it has been decided to dismiss your service from Haiborgaon High School as a Contractual Teacher as you have been appointed by the SMDC of Haiborgaon High School.

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(iv) That you are most irregular and inattentive in your duty since your joining in this school and you have so many complain regarding your teaching.

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(v) That you have violated all the terms and conditions of service rule and regarding this I several times tried to make communication with you but due to lack of your proper address I was not in a position to do so and failed to communicated with you.

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In view of the above facts and circumstances and violation of contractual service rules the SMDC disappointed upon you and finding no alternative has taken the final decision to dismiss you. So, you are hereby DISMISS from contractual service from Haiborgaon High school, Nagaon”.

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12. The fact of the case clearly shows that the petitioner’s application for grant of Child Care Leave had not been granted on two occasions. One for 4 months in the year 2018 and one for 8 months starting from 01.08.2019 to 31.03.2020. Though the State respondents should ordinarily have granted Child Care Leave, the same not having been done, the petitioner could not have taken unauthorized leave in total defiance of the decision of the respondents. It has been clearly laid down by the Supreme Court in various decisions, one of which is State of Punjab –vs- P.L.Singla reported in 2000 (8) SCC 469 that unauthorized absence is an act of indiscipline and misconduct.

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13. This Court in Ajoy Kumar Haloi Vs. State of Assam & Others, reported in (2014) 3 GLT 420 held that irrespective of the question as to whether the termination of the services of the petitioner is illegal or not, the core question to be determined is whether the writ petition is overtaken by time and has, ipso facto, becomes infructuous. This Court further held that the period of engagement of a contractual employee cannot be extended by the Court, as the legitimate function of the State respondents cannot be usurped if there was any breach of contract in the termination of the service of the petitioner, it may give rise to a cause of action for damages/compensation, for which the remedy available is a civil suit and not a writ petition.

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14. In the case of GRIDCO Ltd. & anr. Vs. Sadananda Doloi & Ors reported in (2011) 15 SCC 16, the Apex Court has held that though a writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality with respect to termination of a contractual engagement, judicial review cannot extend to acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the armchair of the administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by illegality, perversity, unreasonableness, unfairness or irrationality and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision

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Page No.# 6/14

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under challenge.

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15. In the case of Prabhu Nath Pandey & Ors. Vs- Union of India reported in 2000 1 GLT, 470, this Court has held that a contract of employment cannot ordinarily be interfered against an employer and the remedy is to sue for damages.

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16. In the case of U.P. State Textile Corporation Ltd. Vs. Suresh Kumar, reported in (2011) 15 SCC 180, the Supreme Court has held that no relief for extension of the engagement period beyond the contract period can be given by Tribunal or the High Court, as the engagement period was for a fixed period.

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17. Clause-9 of the contract agreement executed between the parties’ shows that the service of the petitioner can be terminated at any time, if the contractual employee is found to be guilty of insubordination or other misconduct or any breach or non-performance. As the action of the respondents in terminating the service/ contractual engagement of the petitioner has been made in terms of the contractual agreement, executed by the parties, this Court does not find any ground to interfere with the termination of the petitioner’s contractual service. In any event, the petitioner has put to challenge the impugned termination order dated 25.06.2020, after more and 2 ½ years, i.e. only on 10.01.2023. As such, the present petition is hit by laches and delay.

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18. The facts in the present case show that the petitioner’s contractual engagement period had ended in July, 2020 and that he had been dismissed from service one month prior to his contractual engagement period being over. In terms of the judgment of this Court in Ajoy Kumar Haloi (supra) and the judgment of the Supreme Court in U.P. State Textile Corporation Ltd. Vs. Suresh Kumar (supra) no relief for extension of his contractual period beyond July, 2020 can be granted by this Court. It is also apparent from the facts of the case that the petitioner’s unauthorized absence was an act of indiscipline and misconduct. Further, there being a provision for terminating the contractual engagement of an employee in the contract agreement executed between the parties, this Court not being an Appellate Authority over the decision of the respondent authorities, the dismissal order of the petitioner is not being interfered with, in terms of the judgment of the Supreme Court in GRIDCO Ltd. & anr. Vs. Sadananda Doloi (supra), especially when the facts clearly show that the petitioner had been unauthorizedly absent. Further there is nothing to show that the impugned action of the State respondents was unreasonable or irrational.

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19. In view of the fact that the petitioner’s contractual engagement period ended in July, 2020, the prayer of the petitioner to extend his contract period beyond July 2020 cannot be granted, in terms of the various decisions quoted above. In the event, the petitioner is of the view that the he is entitled to be given his legitimate dues for his remaining contractual engagement period, the petitioner is always at liberty to approach the Civil Court for redressal of his grievance.

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20. For the reasons stated above, this Court does not find any reason to exercise its discretion in the present case. The writ petition is accordingly dismissed.”

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Page No.# 7/14

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5. Assailing the judgment & order, dated 20.02.2025, passed by the learned Single Judge in WP(c)247/2023; Mr. Deka, learned counsel for the appellant, has submitted that the learned Single Judge while proceeding to dismiss the aforesaid writ petition, had failed to appreciate that the appellant, herein, had sought for Child Care Leave(CCL) w.e.f. 01.08.2019 to 31.03.2020, which was mandatorily required to be sanctioned to her and accordingly, the absence of the appellant, herein, after submission of the application submitted by the appellant for grant of Child Care Leave(CCL) w.e.f. 01.08.2019 to 31.03.2020, could not have been construed to be an unauthorized absence from the school and hence, there was no occasion for the School Management and Development Committee of Haibargaon High School, Nagaon, to terminate the service of the appellant, herein, w.e.f. 25.06.2020.

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6. Mr. Deka, learned counsel, has further submitted that the communication, dated 25.06.2020, having the effect of visiting her with civil consequences; the termination of her contractual engagement could not have been effected without affording an opportunity of hearing to the appellant in the matter. The appellant, herein, having not been afforded an opportunity of hearing in the matter; the communication, dated 25.06.2020, has been contended to have been vitiated requiring an interference with the same.

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7. Mr. Deka, learned counsel, has submitted that the learned Single Judge in the impugned judgment & order, dated 20.02.2025, failed to appreciate the matter in its proper perspective and accordingly, the learned counsel has contended that the judgment & order, dated 20.02.2025,

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Page No.# 8/14

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passed by the learned Single Judge in WP(c)247/2023, would call for an interference by this Court.

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8. Mr. Deka, learned counsel for the appellant, in support of his submissions, has relied upon the following decisions of the Hon'ble Supreme Court:

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(i). Sirsi Muncipality by its President Sirsi v. Cecelia Kom Francis Tellis , reported in (1973) 1 SCC 409

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(ii). R. C. Joshi v. Union of India & ors ., reported in AIR 1985 SC 1046

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(iii). Shalini Dharmani v. State of Himachal Pradesh , reported in 2024 0 Supreme(SC) 892

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(iv). Swati Priyadarshini v. State of Madhya Pradesh & ors. , reported in 2024 SCC OnLine SC 2139

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(v). U.P. State Transport Corporation & ors. v. Brijesh Kumar & anr. , reported in 2024 SCC OnLine SC 2282

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9. Per contra, Mr. Khataniar, learned standing counsel, Secondary Education Department, has reiterated the contentions raised by the State Respondents before the learned Single Judge and has contended that the judgment & order, dated 20.02.2025, passed by the learned Single Judge in WP(c)247/2023, was so passed after taking into consideration, all relevant aspects of the matter and there being no perversity therein; the same would not mandate an interference.

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10. We have heard the learned counsels appearing for the parties and also perused the materials available on record.

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11. The contentions raised by Mr. Deka, learned counsel for the appellant,

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Page No.# 9/14

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has already been considered by the learned Single Judge vide the impugned judgment & order, dated 20.02.2025, in WP(c)247/2023, and thereafter, had drawn the conclusions so drawn by him in the said judgment & order.

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12. The appellant, herein, had applied for grant of Child Care Leave(CCL) w.e.f. 01.08.2019 to 31.03.2020. The materials brought on record would go to reveal that the same was not granted to the appellant. However, the appellant remained unauthorizedly absent from her duties and such unauthorized absence continued even after lapse of the period of Child Care Leave(CCL) sought for by her i.e. even after 31.03.2020. The appellant, herein, having not discharged her duties, the School Management and Development Committee of Haibargaon High School, Nagaon, on consideration of the matter; arrived at a decision to terminate her service and accordingly, the Headmaster of the said school vide communication, dated 25.06.2020, proceeded to terminate the service of the appellant, herein.

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13. At this stage, it is to be noted that the contractual engagement of the appellant, herein, was to operate till the month of July, 2020. However, her service was terminated on 25.06.2020.

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14. As noticed by the learned Single Judge in the impugned judgment & order, dated 20.02.2025, in WP(c)247/2023, the appellant, herein, after her service was terminated on 25.06.2020, had not instituted any proceeding assailing the said judgment & order, and the writ petition being WP(c)247/2023, was so instituted by the appellant only on 10.01.2023, i.e.

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Page No.# 10/14

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after a lapse of around 2½ years from the date of the termination of her service.

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15. In view of the factual matrix arising in the present proceeding and more particularly, on the date, the appellant, herein, had instituted the connected writ petition being WP(c)247/2023, before the writ Court; there being no order renewing the contractual engagement of the appellant, this Court is required to examine as to whether it would be permissible for this Court to direct the School Management and Development Committee of Haibargaon High School, Nagaon, to re-engage the appellant, herein, on contractual engagement.

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16. The issue pertaining to the legal rights of a contractual appointee came up for consideration before the Hon'ble Supreme Court in the case of GRIDCO Limited & anr. v. Sadananda Doloi & ors. [reported in (2011) 15 SCC 16 ]. The Hon'ble Supreme Court upon noticing the earlier decisions on the issue, held as follows:

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“ 38. A conspectus of the pronouncements of this Court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review.

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39. A writ court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the armchair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by

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Page No.# 11/14

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the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ court would do well to respect the decision under challenge.”

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17. The decision of the Hon'ble Supreme Court in the case of U.P. State Textile Corporation Limited v. Suresh Kumar [reported in (2011) 15 SCC 180 ] being relevant to the issue arising in the present proceeding, is being noticed. The Hon'ble Supreme Court, in the said case; considering the effect of non-extension of the period of contractual engagement, held that the contractual engagement of the respondent, therein, having come to an end, no relief beyond that period, could have been granted. Accordingly, the directions passed in the matter by the High Court allowing the respondent(before Hon'ble Supreme Court) to continue in his services, came to be modified and the respondent was deemed to be in service till the currency of his contractual engagement. The relevant paragraphs of the decision of the Hon'ble Supreme Court in the case of Suresh Kumar (supra) is reproduced hereinbelow :

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“ 4. The learned counsel for the appellant has raised primarily two arguments before us. He has contended that the reference to the unauthorised absence of the respondent could not in any manner be said to be stigmatic and that the finding to the contrary was unsustainable. Alternatively, he has contended that the respondent had joined the post on 7-9-1987 for a period of three years which would have come to an end on 6-9-1990 and as such the direction for reinstatement could not have been granted to him. It has been pleaded that as a consequence of the order of the Tribunal and of the High Court, the respondent has been put back into service.

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5. The learned counsel for the respondent has however supported the judgments of the Tribunal and the High Court.

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6. In the facts of the case we need not examine the effect of the order dated 26-4-1989 whereby the services of the respondent had been terminated as being stigmatic or not as we are of the opinion that in the light of the fact that appointment itself was for a fixed period of three years which would have come to an end on 6-9-1990, no relief beyond that period could have been given to the respondent by the Tribunal or the High Court. We accordingly feel that these orders need to be modified to the extent that the appellant shall be deemed to be in service up to 6-9-1990 and not thereafter.”

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Page No.# 12/14

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18. Applying the decisions of the Hon'ble Supreme Court, noticed hereinabove, to the facts as arising in the present proceeding, it being crystal clear that the contractual engagement of the appellant, herein, had come to an end in the month of July, 2020, and thereafter, admittedly, there being no order extending such contractual engagement of the appellant; this Court in the guise of exercise of the power of judicial review, would not substitute its decision, for the decision of the executive authority on the ground that the decision of this Court is more reasonable. This Court cannot extend the period of the contractual engagement of the appellant, herein, after the same had come an end. Further, the contentions of Mr. Deka, learned counsel for the appellant that the termination of the contractual engagement of the appellant, herein, was stigmatic; would also not mandate acceptance in view of the decision of the Hon'ble Supreme Court rendered in the case of Suresh Kumar (supra).

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19. The learned Single Judge in the judgment & order, dated 20.02.2025, in WP(c)247/2023, noticing the decisions of the Hon'ble Supreme Court applicable to the issue arising in the proceeding, having concluded that it would not be permissible to extend the contractual engagement of the appellant, herein, after the same had come to an end in the month of July, 2020; we do not find any error in the conclusions reached by the learned Single Judge towards dismissing the said writ petition. Further, we also do not notice any perversity in the conclusions so drawn by the learned Single Judge in the judgment & order, dated 20.02.2025, in WP(c)247/2023.

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20. In this connection, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Airport Authority of India v. Pradip Kumar

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Page No.# 13/14

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Banerjee , reported in 2025 SCC OnLine SC 232 , wherein, it has been held by the Hon'ble Supreme Court that in an intra-Court appeal, the finding of fact of the learned Single Judge, unless such finding is concluded by the appellate Bench to be perverse, would not be called to be disturbed. It has been further held that merely because another view or a better view is possible; there should be no interference with or disturbance of the order passed by the learned Single Judge unless both sides agree for a fairer approach on relief.

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21. Applying the decision of the Hon'ble Supreme Court, referred to above, to the facts of the present case, we having not found any perversity with regard to the conclusions reached by the learned single Judge in the impugned judgment & order, dated 20.02.2025, in WP(c)247/2023, and the view taken by the learned single Judge being a plausible view; we are not persuaded by the submissions of the learned counsel for the appellant, to take a different view in the matter. Accordingly, we are of the considered view that the impugned judgment & order, dated 20.02.2025, passed by the learned Single Judge in WP(c)247/2023, would not warrant any interference.

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22. The decisions relied upon by Mr. Deka, learned counsel for the appellant, has been duly perused by us. However, we are of the considered view that the same, given the peculiar facts and circumstances arising in the present proceeding; would not advance the case of the appellant, herein, and accordingly, a discussion, thereon, is not being made in the present order.

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Page No.# 14/14

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23. In view of the above discussions, the instant writ appeal is held to be devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Mrs Juri Barman v. the State of Assam and 4 Ors.

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Mrs Juri Barman v. the State of Assam and 4 Ors.

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