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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, J.
Imran Hussain Khan S/o Lt Borhan Ali Khan – Appellant
Versus
The State Of Assam And 2 Ors. – Respondent
WP(C) 8779 of 2019
Decided on : 10-11-2022
Indian Penal Code, 1860 - Sections 147/148/149/447/341/325/326/354/307/379/371 - Wrongly Implicated in Case - Discharged from Service - Petitioner was wrongly implicated in said case and accordingly, he was discharged from service, he could not be faulted for break in service which had occasioned because of arrest – Petitioner being made an accused in a criminal case, petitioner was arrested and prior to petitioner being acquitted of charges vide Judgment by Criminal Court, petitioner’s engagement ended. Para 15
Finding of the Court :
If petitioner could have been appointed in year as a Pharmacist on contract basis, it would imply that petitioner was capable of doing job of a Pharmacist - On other hand, stand now taken by respondents is that petitioner does not have basic knowledge of a Pharmacist, as reflected in impugned Order - Though this Court has held in foregoing paragraphs that no relief for extension of petitioner’s engagement period can be given by this Court, as his contractual period ended, reason given by respondent authorities for not extending petitioner’s engagement period is only on ground that petitioner does not have basic knowledge of a Pharmacist - Though this Court cannot substitute views of experts with it’s views, this Court is of view that respondent authorities should constitute a review committee, to decide competence of petitioner as a Pharmacist and take a decision as to whether petitioner’s contractual engagement can be extended on that score - It is needless to add that respondents can also look into other factors/aspects of matter in their discretion, while deciding whether or not to extend petitioner’s engagement - Entire exercise should be completed within a period of 1 (one) month from date of receipt of a certified copy of this order.
Result: Petition disposed of.
JUDGMENT :
Heard Mr. B Islam, learned counsel for the petitioner. Also heard Mr. B Gogoi, learned counsel for the Health Department.
2. The petitioner has prayed for setting aside the impugned Order dated 30.10.2019 issued by the Mission Director, National Health Mission, Assam, by which the petitioner’s prayer to rejoin his service as a Pharmacist in the Rashtriya Bal Swasthya Karyakram (RBSK), Boitamari PHC in Bongaigaon District has been rejected.
3. The petitioner’s case is that the petitioner was initially appointed as a Pharmacist in the RBSK, Boitamari PHC in Bongaigaon District, vide Order dated 01.03.2014, on contract basis for the period from 05.03.2014 to 31.03.2017. However, the petitioner was arrested on 09.08.2016 in connection with Abhayapuri P.S. Case No. 347/2016 under Sections 147/148/149/447/341/325/326/354/307/379/371 of the IPC. The petitioner was released on bail on 12.09.2016. The petitioner thereafter wrote a letter dated 17.09.2016 to the respondent No. 3 praying that he should be allowed to rejoin his post/duty. The petitioner’s letter dated 17.09.2016 praying to rejoin his post was forwarded to the respondent No. 2 by the respondent No. 3 vide letter dated 30.11.2016.
4. The petitioner was thereafter, acquitted from the charges levelled against him, vide Judgment dated 11.02.2019 passed by the Court of Sub-Divisional Judicial Magistrate (M), North Salmara, Abhayapuri. The petitioner thereafter wrote a letter dated 26.02.2019 to the respondent No. 2 praying that he should be allowed to rejoin his duty, as he has been acquitted from the charges levelled against him. No action being taken by the respondents, the petitioner filed WP(C) No. 2509/2017.
5. WP(C) No. 2509/2017 was disposed of vide Order dated 11.04.2019, by directing the respondent authorities to consider the petitioner’s representation dated 26.02.2019 to allow him to rejoin his duty and to pass appropriate orders in terms of the observations and directions mentioned in the Order dated 11.04.2019.
The relevant paragraph Nos. 4 to 9 of the order dated 11.04.2019 passed in WP(C) No. 2509/2017 are reproduced below:-
5. Accordingly, after being discharged from the aforesaid criminal case, he submitted an application on 26.02.2019 to the authority for allowing him to re-join the service. Unfortunately, authorities have not responded to the same because of which the petitioner has approached this Court.
6. This Court is of the view that, though a contractual employee has no vested right to continue in service, in the present case, the break in service was occasioned due to certain criminal case which was foisted upon him in which he has been acquitted and as such, the break in service was not due to any deliberate act on the part of the petitioner but due to reasons beyond his control
7. If that is so, if similarly situated persons who were appointed on contractual basis have been allowed to continue and the service of the Pharmacist is still required, the authorities will consider taking the petitioner back break in service so that he may be allowed to continue in service as Pharmacist as was done on the earlier occasions.
8. Ms. A. Borah, learned counsel for the State respondents submits that since the contractual period of the petitioner has already expired, there is no vested right on the part of the petitioner to seek reinstatement in service. However, as mentioned above, this direction would be compliable only if other contractual Pharmacists/ employees have been continued in service as the petitioner also would have continued in service had he not been implicated in the criminal case from which he has now been acquitted.
9. Accordingly, the present petition is disposed of with a di
SupremeToday
Contractual employee cannot be extended by Court, as legitimate function of State respondents cannot be usurped if there was any breach of contract in termination of service of petitioner.
Judicial review cannot extend to altering the terms of a contract post-expiry, and the principles of natural justice were upheld in the termination process.
The court emphasized the need for cause notice and due procedure of law before discontinuing the services of a contractual employee.
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.
A contractual employee whose engagement has expired by efflux of time cannot claim reinstatement or back wages based on subsequent acquittal in a criminal case, as the acquittal does not resurrect a ....
Non extension of the service contract cannot be termed as punitive in the garb of termination as there is no right vested in the petitioner to continue in the service of the respondent no. 2 on compl....
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