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IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, J.
Bonti Saikia - Appellant
Vs.
State Of Assam And Others - Respondent
Writ Petition (Civil) No. 5689 of 2017, 5691 of 2017, 5694 of 2017, 4867 of 2017
Decided On : 10-09-2019
Termination of Contractual Engagement – 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 – 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 – Held, 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 Counsel for respondent 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 – 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 – This Court had issued interim orders by virtue of which petitioners have continued in service – 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 – 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 – 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, show cause notice dated 04.08.2017 is set aside and quashed – 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 receipt of a certified copy of this order – Till such decision is taken, protection granted to the petitioner by this Court would continue – All the writ petitions are accordingly disposed of in the above terms – Petitions Disposed Accordingly
JUDGMENT :
Ujjal Bhuyan, J.
This order will dispose of WP(C) Nos.5689,4867,5691 and 5694/2017.
2. Heard Mr. B.C. Das, learned Senior counsel, assisted by Mr. M.J. Qadir, learned counsel 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.
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.
WP(C) 5689/2017
(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 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.
(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.
(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.
(iv) Aggrieved, Ms. Bonti Saikia has preferred WP(C) No.5689/2017.
(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 continue as Joint Director (IEC).
(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 3
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