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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, J.
Anowar Hussain Ahmed S/o Lt. Sk. Nuruddin Ahmed – Appellant
Versus
The State Of Assam And 3 Ors – Respondents
WP(C) 7971 OF 2017
Decided on : 21-04-2022
Services - Order Of Appointment - Request Transfer - Contractual Engagement - Decision To Terminate - Petitioner upon a successful participation in selection process was offered an appointment by order of Joint Director of Health Services (M) Cum State Programme Officer, and as per order of appointment, petitioner was given a place of posting - Order of appointment specifically provides that it was an engagement on contractual basis for a period of one year - Petitioner submitted a joining report before District Malaria Officer - Petitioner submitted a representation before Joint Director of Health Services (M) cum State Programme Officer NVBDCP, Assam stating that he went to join as MTS in Karbi Anglong district, but some unknown miscreants threatened him not to join in district and also not to serve, or otherwise, petitioner would lose his life - Accordingly, a request was made that petitioner be transferred and be given a place of posting - Whether his engagement is required to be continued any further or not beyond period of initial one year. Para 17, 18.
Finding of the Court :
In absence of any duty being performed by petitioner, Court cannot hold that conclusion arrived at by competent authority to take decision that there was no performance of petitioner can be faulted with - In circumstance, Court have to understand that order impugned providing that services of petitioner is not required any further would have to be construed to be an order conveying decision of authorities not to further extend contractual engagement of petitioner beyond the initial one year, rather it being a decision to terminate engagement of petitioner - Apart from mere allegation that some miscreants had been threatening petitioner in both places where he was posted, no further material can be made available by petitioner that a situation was created which had rendered it impossible for him to perform his duties and further no explanation is also forthcoming as to why it cannot be construed that petitioner had abandoned his engagement - As petitioner is unable to put forth any circumstance or reason that he had in fact continued with his service and not abandoned, Court is of view that even law of natural justice requiring an opportunity of hearing be given may not be applicable inasmuch as law of natural justice is not a straight jacket formula, but would be circumstantial in nature where person aggrieved would have to show that by not been given an opportunity of hearing, some kind of prejudice was caused to him - From such point of view, if services of petitioner were not dispensed liberty is granted to petitioner to file appropriate representation for any financial remuneration that he may be entitled provided petitioner in his representation can make out an appropriate case for entitlement of such remuneration - In event, any such representation is submitted, respondents in Health and Family Welfare Department through Director of Health Services to pass a reasoned order on entitlement of such financial remuneration in facts and circumstances and under law provided petitioner can establish that he had actually rendered his services for said period.
Result: Petition disposed of.
JUDGMENT :
Heard Mr. H. Das, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned counsel for the respondents No.1, 2 and 3 being the authorities under the Health and Family Welfare Department of the Government of Assam and Ms. R.B. Bora, learned counsel for the respondent BTC.
2. Pursuant to an employment notice dated 03.11.2011 issued by the Director of Health Services, Assam the petitioner participated in a selection process for, amongst others, the post of Malaria Technical Supervisor (MTS). The employment notice provides that the vacancies for MTS was 68 and further that the engagement would be on contractual basis for a period of one year from the date of engagement , which may be extended further on the basis of performance. The petitioner upon a successful participation in the selection process was offered an appointment by the order dated 15.10.2012 of the Joint Director of Health Services (M) Cum State Programme Officer, NVBDCP, Assam and as per the order of appointment, the petitioner was given a place of posting at Zirikinding PHC, in the Karbi Anglong district. The order of appointment specifically provides that it was an engagement on contractual basis for a period of one year. The petitioner submitted a joining report 05.11.2012 before the District Malaria Officer, Karbi Anglong. On 14.11.2012, the petitioner submitted a representation before the Joint Director of Health Services (M) cum State Programme Officer NVBDCP, Assam stating that he went to join as MTS in the Karbi Anglong district, but some unknown miscreants threatened him not to join in the district and also not to serve, or otherwise, the petitioner would lose his life. Accordingly, a request was made that the petitioner be transferred and be given a place of posting in the Goalpara district. It has been stated by the learned counsel for the petitioner that the petitioner is ordinarily a resident of Goalpara district. Be that as it may, by the order dated 30.07.2013 of the Joint of Health Services (M) cum State Programme Officer, NVBDCP, the petitioner was transferred and posted as MTS in a vacant post at Kachugaon PHC in the Kokrajhar district. By a joining report dated 20.09.2013 the petitioner joined at Kachugaon as MTS. On 24.01.2014, the petitioner submitted another representation before the District Programme Officer, Kokrajhar stating that he is facing some desirable warning from some unknown person asking him not to stay at Kokrajhar and do the work. Without waiting for the authorities to give any consideration to the said representation made on 24.01.2014, the petitioner deposited the official motorcycle allotted to him along with R/C, Insurance Certificate bearing registration No. AS01-BE/3838 in the Office of the District Malaria Eradication Officer, Kokrajhar. The very fact that the petitioner had deposited the official motor cycle allotted to him gives an indication that the petitioner had the intention to abandon the contractual engagement made in his favour. After abandoning his service, the wife of the petitioner submitted a representation dated 06.05.2014 to the Joint Director of Health Services (M) stating that some unknown persons had threatened her husband who was serving as MTS at Kachugaon under the Kokrajhar district although otherwise he was performing his duties in a sincere manner and because of such threat, the petitioner developed a ‘disappointment’ as well as ‘mental curiosity’. Accordingly, a request was made that the petitioner be transferred to some other place. A communication dated 26.65.2015 from the District Malaria Officer, Kokrajhar shows that the petitioner received his salary up to January, 2014 and thereafter no salary was paid and further the official motor cycle was also deposited with the authorities.
3. In the meantime, by the order impugned dated 22.07.2014 it was provided that the service of the petitioner as MTS at Kachugaon, under Kokrajhar district was no longer required w.e.f. 22.07.2014
SupremeToday
Even the law of natural justice requiring an opportunity of hearing be given may not be applicable inasmuch as the law of natural justice is not a straight jacket formula.
The court emphasized the necessity for fair procedures in administrative actions affecting employment rights, quashing the termination due to violations of natural justice.
There is no termination order but only a relieve order is passed by the respondents on 01.02.2014 on completion of the contractual engagement period of two years.
The central legal point established in the judgment is the prohibition of inter-district transfer under NHM Policy and the locality-specific nature of contractual engagements under NHM.
The court emphasized the need for cause notice and due procedure of law before discontinuing the services of a contractual employee.
Termination of contractual employment must adhere to principles of natural justice, especially when allegations of misconduct are involved.
Termination of a probationer must not cast stigma without due process; otherwise, it is deemed illegal and arbitrary.
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