Tripura High Court
Shri Ashok Chandra Dhar vs The Union Of India on 8 February, 2019
Equivalent citations: AIRONLINE 2019 TRI 206
Author: Arindam Lodh
Bench: Arindam Lodh
Page - 1 of 17
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 1054 OF 2018
Shri Ashok Chandra Dhar,
S/o Lt. Makhan Chandra Dhar,
a resident of Village Barjala,
near High School, P.O. Barajal,
P.S. West Agartala, Dist. West Tripura,
PIN 799 002.
---- Petitioner(s).
Versus
1. The Union of India,
Represented by the Secretary to the
Government of India,
Ministry of Health and Family Welfare,
Department of AIDS Control,
National AIDS Control Organization,
9th Floor, Chandralok Building,
36, Janpath, New Delhi, 110 001.
2. The State of Tripura,
Through the Principal Secretary (Health),
New Capital Complex, P.O. Agartala Secretariat,
West Tripura, PIN 700 010.
3. The Director of Family Welfare and Preventive
Medicine,
Government of Tripura, P.N. Complex, Kunjaban,
P.O. Kunjaban, Agartala, West Tripura,
PIN 799 006.
4. The Project Director,
Tripura State AIDS Control Society,
Akhaura Road, Opposite to IGM Hospital,
P.O. Agartala, West Tripura,
PIN 799 001.
---Respondent(s).
For Petitioner(s) : Mr. S.M.Chakraborty, Sr. Advocate.
Ms. P. Sen, Ms. B. Charkaborty & Ms. M. Chakraborty, Advocates.
For Respondent(s) : Mr. Biswanath Majumder, CGC.
Mr. D. Sharma, Addl. G.A.
Date of hearing and
delivery of judgment : 08.02.2019
and order
Whether fit for
reporting : Yes
Page - 2 of 17
HON'BLE MR JUSTICE ARINDAM LODH
Judgment & Order (Oral)
08/02/2019
Heard Mr. S.M.Chakraborty, learned Sr. counsel
assisted by Ms. P. Sen, Ms. B. Chakraborty & Ms. M. Chakraborty, learned counsels appearing for the petitioner.
Also heard Mr. Dipankar Sharma, learned Addl. G.A. appearing for the State respondents and Mr. Biswanath Majumder, learned CGC appearing for the respondent-Union of India (represented by Ministry of Health and Family Welfare Department, Govt. of India).
2. The case of the petitioner, in a short compass, is that he was appointed as Consultant under the respondents vide appointment letter dated 01.10.2008 (Annexure-4 to the writ petition) on contractual basis with further stipulation that his service may be terminated by giving one month's notice on either side. All on a sudden he was served with a memorandum dated 26 th July, 2018 (Annexure-7 to the writ petition) in the following terms:
"F.3(2-33)/Estt/PF/TSACS/2009-10/2678 Tripura State AIDS Control Society Health & Family Welfare Department Government of Tripura, Agartala, Tripura.
July 26,2018 Memorandum Whereas, the tenure of Sri Ashok Ch. Dhar, Assistant Director (VBD), Tripura SACS was extended vide memorandum no.F.3(2-6)/Estt/Continuation/TSACS/2016-17 dated 28th March, 2018 for further 01(one) year w.e.f. 1st April,2018 to 31st March, 2019 with 03(Three) months cautionary period to improve the prevailing down-trending of voluntary Blood Donation scenario in the State of Tripura in Page - 3 of 17 comparison with that of same period in earlier years.
2. Whereas, after the recent transfer of Assistant Project Director (APD), the Blood Safety Division is running with Assistant Director, VBD only.
3. Whereas, to compare and also to observe the performance of Sri. Dhar, achievement of voluntary Blood donation for the 6(six) NACO supported Blood Banks during the 1st quarter of last 04 (four) years was asked from Sri. Dhar, AD (VBD) and Assistant Director (M&E), Tripura SACS.
4. Whereas, the figures of voluntary blood unit collection and nos. of VBD camps organized during the 1st quarter of 2015-16 onwards, as submitted by AD (M&E) does not match with the 1st report of Sri. Dhar and it was not clear whether the submitted report was for all the Blood Banks in Trpura or for only NACO supported Blood Banks. It was also observed that there is no improvement in voluntary Blood Donation since last few years and nos. of VBD camps organized during the same period was also not as expected.
5. Whereas, due to furnishing of inadequate and incomplete information in the 1st time, an e-mail with a reporting prototype was also sent to Sri, Dhar to provide the requisite information of 06(six) NACO supported Blood Banks within 02 (Two) days from the receipt of the mail.
6. Whereas, in spite of repeated directions, the annual requirement of Blood Bags, Reagents, kits and other consumables for smooth functioning of the Blood Transfusion services in the State, the compilation of the requirement, as furnished by the Blood Banks is not yet completed till date, though the last annual requirement from Blood Bank, GBP Hospital was received some one month ago.
7. Whereas, though 1st 4(Four) months of the FY 2018-19 are already over, yet, the proposal for procurement of Blood Bags, Reagents, Kits and other consumables for smooth functioning of the Blood Transfusion services in the State could not yet be sent to Authority for consideration though fund is available for this purpose.
8. Whereas, Shri Dhar was involved in verbal exchanges with questionable gestures and vocabularies on 17th July, 2018 with Director and MS-TSBTC in a meeting in presence of other officials of Tripura SACS.
Page - 4 of 17
9. Therefore, Sri Ashok Chandra Dhar, Assistant Director, VBD, Tripura SACS is hereby asked to explain the above facts with proper reasoning, if any, and the reply should reach to the undersigned within 07(seven) days from the date of receipt of this memorandum. Ex parte decision will be taken in case of non receipt of timely reply of this memorandum.
(Dr. Ashoke Roy) Project Director Tripura State AIDS Control Society."
3. On bare perusal of the said memorandum, it reveals that some imputations have been made against the petitioner and he has been asked by the competent authority to reply to those allegations/imputations leveled against him. The petitioner in response to the said memorandum dated 26th July, 2018 had submitted reply on 01.08.2018 to the Project Director, Tripura State AIDS Control Society, Health & Family Affairs Department, Govt. of Tripura whereby and whereunder the petitioner has denied and challenged the allegations as those were baseless as well as frivolous. The petitioner also has sufficiently explained the reasons as to why he consumed more than 20/25 days to undertake his assigned job. He also has given explanation to each and every allegation as imputed upon him. Without informing the petitioner about the response that he submitted on 01.08.2018 to the competent authority, all on a sudden, the respondent No.4 issued a memorandum dated 12th September, 2018 (Annexure-9 to the writ petition) terminating the service of the petitioner in the following terms:
"F.3(2-33)/Estt/PF/TSACS/2009-10/3887-3894 Tripura State AIDS Control Society Health & Family Welfare Department Government of Tripura, Agartala, Tripura.
Page - 5 of 17
September 12,2018
Memorandum
Sri Ashok Chandra Dhar, Assistant
Director(VBD), Tripura State AIDS Control Society is hereby terminated w.e.f. 15th October,2018 as per the proviso of the order no.F.3(2-5)/Estt/Recruitment/TSACS/2008-9 (Sub-V) dated 27th October 2008.
2. Therefore, Sri Ashok Chandra Dhar, AD, VBD is hereby directed to hand over the charge of Assistant Director (VBD), Tripura SACS along with all records, files, etc. to Dr. Sanjoy Rudra Pal, Assistant Project Director, Tripura SACS on or before 14th October 2018 and Dr. Sanjoy Rudra Pal, Assistant Project Director, TSACS is hereby directed to take over the charge from Sri Dhar with a intimation to the undersigned latest by 14th October,2018 positively.
3. The charge of Conference Hall along with related equipment, etc. of Tripura SACS may also be handed over to Sh. Saurab Sarakr, AD(YA), Tripura SACS on or before 14th October, 2018.
4. This 'One month Notice' is issued with the approval of the competent authority vide U.No.- 2998/Secy(H), dated 16.08.2018.
(Dr. Ashoke Roy) Project Director Tripura State AIDS Control Society."
4. From the memorandum as aforestated, it is clear that there is no mention about the fact that the respondents have applied their mind to the response which the petitioner had submitted on 01.08.2018. More so, at Para 4 of the said memorandum dated 12th September, 2018, it is stated that one month's notice was served upon him vide U.No.2998/Secy(H), dated 16.08.2018. The petitioner at Para 12 of his writ petition has made a categorical statement that he did not receive any notice, dated 16.08.2018, as is referred in the memorandum dated 12th September,2018. This Court has made a specific query to the learned Addl. G.A. to the notice dated 16.08.2018 but the learned Page - 6 of 17 Addl. G.A. for the State-respondents has submitted that there is no such notice found in the record. This has led me to take note of the reply filed by the State-respondents where Para 12 of writ petition has been countered in Para 11 of the affidavit-in-opposition. In Para 11 of the affidavit-in-opposition, I did not find that this particular statement has been specifically countered. Only a statement has been made that-- "U.No.2998/Secy(H), dated 16.08.2018 is not an order". When this Court has sought for clarification of this sentence, the learned Addl. G.A. could not give any satisfactory explanation regarding the meaning of this sentence.
5. Indisputably, the service of the petitioner is a contractual appointment and at any time his service can be terminated in terms of the appointment letter subject to one month's notice. In the present case, I have noticed that initially some imputations were made against the petitioner which the petitioner had responded but there is nothing in the record that those explanations were ever considered by the competent authority. Whether contractual or temporary, the service condition of such an employee has to be guided by the doctrine of common law requiring it to fulfill the obligation of Article 14 of the Constitution of India to act fairly, justly and reasonably.
6. In administrative jurisprudence, it is the bounden duty of the Executives who also discharge quasi-judicial function has to follow the established rule of law. The rule of law demands fair play in each and every actions of the Executives qua the observance of the doctrine of fairness. It is now well-nigh settled that State or its enforcing agencies or authorities acting on its behalf cannot act Page - 7 of 17 arbitrarily in the matter of deciding the relationships be it contractual or otherwise.
7. In furtherance thereof, from a plain reading of the stipulation in the order of appointment dated 1st October, 2008, it appears that the said expression in unequivocal term was in the nature of a promise, which the petitioner would legitimately expect compliance of the requirement of being served one month's notice before the order of termination. According to me, here lies the applicability of the doctrine of legitimate expectation. Such expectation not being a right is not enforceable as such, but, this is a concept indebted by the courts for judicial review of administrative action. It is procedural in nature which demands a higher degree of fairness in administrative action. In my view, the provision of serving one month's prior notice is consistent with 'established practice' in the backdrop of doctrine of fairness. So, the expectation of the petitioner to have one month's prior notice, in the facts of the present context, is legitimate i.e. reasonable, logical and valid.
8. In Ram Pravesh Singh Vrs. State of Bihar, reported in (2006) 8 SCC 381, [ SCC. P.390-91, Para 15] the Apex Court has defined 'legitimate expectation' thus:
"15. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term 'established practice' refers to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as Page - 8 of 17 such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a 'legitimate expectation' of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'. It may only entitle an expectant :
(a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, courts may grant a direction requiring the Authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief.
Public interest, change in policy, conduct of the expectant or any other valid or bonafide reason given by the decision-maker, may be sufficient to negative the 'legitimate expectation'."
The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly."
However, I am not unoblivious of the principle that the ground of legitimate expectation should not form the sole basis to reject the decision of the decision making authority.
9. In my view, the petitioner had legitimate right and expectation to have been served with one month's notice before the impugned order of termination, nonetheless, since he was asked to reply to the imputation levelled against him, further proceeding will justify the doctrine of fairness.
Page - 9 of 17
10. In Pankaj Chakraborty Vrs. State of Tripura & Ors., reported in (1996) 1 GLR 399, a learned Single Bench of the Gauhati High Court has made observation in regard to the importance of representation to be decided by an administrative authority in the following manner:
"Needless to say that actions of the authority considering representations of an employee under orders of transfer being quasi- judicial, such authority should act judiciously and principles of natural justice should be followed and personal hearing should also be afforded. The orders of the authority should be speaking one and it is desirable that such orders be recorded in order sheets."
11. Here, again I may gainfully refer a decision of the Apex Court in State of Punjab & Anr. Vrs. Brijeshwar Singh Chahal & Anr., reported in (2016) 6 SCC 1 wherein the Apex Court in Para 21, 22, 23, 28 and 30 has observed thus:
"21. A similar sentiment was expressed by this Court in E. P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 wherein this Court declared that Article 14 is the genus while Article 16 is a specie and the basic principle which informs both these Articles is equality and inhibition against discrimination. Equality, declared this Court, was antithetic to arbitrariness. The Court described equality and arbitrariness as sworn enemies, one belonging to the rule of law in a republic and the other to the whims and caprice of an absolute monarch. Resultantly if an act is found to be arbitrary, it is implicit that it is unequal both according to political logic and constitutional law, hence violative of Article 14 and if it affects any matter of public employment it is also violative of Article 16. This Court reiterated that Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and inequality of treatment.
22. Then came the decision of this Court in Maneka Gandhi v. Union of India (1978) 2 SCR 621, where this Court held that the principle of reasonableness both legally and philosophically is an essential element of equality and that non-arbitrariness pervades Article 14 with brooding omnipresence.
This implies that wherever there is arbitrariness in Page - 10 of 17 State action, whether it be legislative or executive, Article 14 would spring into action and strike the same down. This Court held that the concept of reasonableness and non-arbitrariness pervades the constitutional scheme and is a golden thread, which runs through the entire Constitution.
23. In Ramana Shetty v. International Airport Authority 1979 AIR (SC) 1628, this Court relying upon the pronouncements of E.P. Royappa and Maneka Gandhi (supra) once again declared that state action must not be guided by extraneous or irrelevant considerations because that would be denial of equality. This Court recognized that principles of reasonableness and rationality are legally as well as philosophically essential elements of equality and non-arbitrariness as projected by Article 14, whether it be authority of law or exercise of executive power without the making of a law. This Court held that State cannot act arbitrarily in the matter of entering into relationships be it contractual or otherwise with a third party and its action must conform to some standard or norm, which is in itself rational and non-discriminatory.
28. In Shrilekha Vidyarthi v. State of U.P. 1991 (1) SCC 212, which happens to be the first of these decisions, this Court had an occasion to examine whether Government Counsel in the districts are holders of an 'office or post' or such appointments are no more than professional engagements like the one between a private client and his lawyer. That case arose out of a challenge mounted by Government Counsel who were engaged throughout the State of Uttar Pradesh to handle civil, revenue or criminal cases and whose services were en masse terminated by the State only to be replaced by fresh appointments on the basis of a new panel prepared for that purpose and communicated to the District Magistrates concerned. On behalf of the State, it was argued that the engagement of Government Counsel was nothing but a professional engagement between a client and his lawyer with no public element attached to it.
30. The decision in Shrilekha's case (supra) is noteworthy for the additional reason that the same held judicial review of State action permissible even when the engagement of the Government counsel may be contractual in nature. This Court observed :
"The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution Page - 11 of 17 and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity."
12. In State of Kerala & Ors. Vrs. K. Prasad & Anr., reported in AIR 2007 SC 2701, the Apex Court at Para 11 has held thus:
"11. This Court in Shrilekha Vidyarthi (Kumari) Vs. State of U.P. held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us, arbitrariness being the negation of the rule of law. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power."
13. In my opinion, when there is stipulation that one month's notice is to be served before termination of an employee, Page - 12 of 17 then, it is mandatory and casts a solemn obligation to the authority concerned to issue notice upon such employee.
14. In the case at hand, language of the term of contract in the appointment letter is unambiguous as it speaks thus: "The appointment is liable to be terminated at any time without assigning any reason thereof with 1(One) month's notice on either side." wherefrom it has evinced and expressly provided that 'one month's notice' has to be served by either side. In my considered view, even in absence of express procedural requirements fairness may still dictate that prior notice and an opportunity of being heard should be afforded. Added to it, the present case, is not a case of termination simplicitor. Some imputations were made in the memorandum dated 26th July,2018 which also were answered. Now, whether explanations are satisfactory or unsatisfactory to the competent authority that not only be dealt with reasonably but also has to be communicated to the concerned employee with speaking order. (Emphasis supplied)
15. Further, serving of one month's prior notice as delineated above is a condition precedent and encompasses the character of a promise, departure from which will attract the doctrine of promissory estoppel. The scope and application of doctrine of promissory estoppel has vivaciously been dealt in Manuelsons Hotels (P) Ltd. Vrs. State of Kerala & Ors. (2016) 6 SCC 766 where the Apex Court has observed thus: [SCC P.782, Para 19 and 20]:
"19.In fact, we must never forget that the doctrine of promissory estoppel is a doctrine whose foundation is that an unconscionable departure by one party from the Page - 13 of 17 subject matter of an assumption which may be of fact or law, present or future, and which has been adopted by the other party as the basis of some course of conduct, act or omission, should not be allowed to pass muster. And the relief to be given in cases involving the doctrine of promissory estoppels contains a degree of flexibility which would ultimately render justice to the aggrieved party. The entire basis of this doctrine has been well put in a judgment of the Australian High Court reported in The Commonwealth of Australia v. Verwayen, (1990) 170 C.L.R. 394(Aust), by Deane,J. in the following words:
1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law the factual ingredients of which fall to be pleaded and resolved like other factual issues in a case. The persons who may be bound by or who may take the benefit of such an estoppel extend beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract. That being so, an estoppel by conduct can be the origin of primary rights of property and of contract.
2. The central principle of the doctrine is that the law will not permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation.
3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party.
4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party:
(a) has induced the assumption by express or implied representation;
(b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption;
Page - 14 of 17
(c) has exercised against the other party rights which would exist only if the assumption were correct;
(d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so.
Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories.
5. The assumption may be of fact or law, present or future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct).
6. The doctrine should be seen as a unified one which operates consistently in both law and equity. In that regard, "equitable estoppel" should not be seen as a separate or distinct doctrine which operates only in equity or as restricted to certain defined categories (e.g. acquiescence, encouragement, promissory estoppel or proprietary estoppel).
7. Estoppel by conduct does not of itself constitute an independent cause of action. The assumed fact or state of affairs (which one party is estopped from denying) may be relied upon defensively or it may be used aggressively as the factual foundation of an action arising under ordinary principles with the entitlement to ultimate relief being determined on the basis of the existence of that fact or state of affairs. In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (e.g. where the defendant in an action for a declaration of trust is estopped from denying the existence of the trust).
8. The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and Page - 15 of 17 the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed." (emphasis supplied)
20. The above statement, based on various earlier English authorities, correctly encapsulates the law of promissory estoppel with one difference - under our law, as has been seen hereinabove, promissory estoppel can be the basis of an independent cause of action in which detriment does not need to be proved. It is enough that a party has acted upon the representation made. The importance of the Australian case is only to reiterate two fundamental concepts relating to the doctrine of promissory estoppel - one, that the central principle of the doctrine is that the law will not permit an unconscionable departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of a course of conduct which would affect the other party if the assumption be not adhered to. The assumption may be of fact or law, present or future. And two, that the relief that may be given on the facts of a given case is flexible enough to remedy injustice wherever it is found. And this would include the relief of acting on the basis that a future assumption either as to fact or law will be deemed to have taken place so as to afford relief to the wronged party."
16. Here also, I find a departure ex facie from the promise of serving one month's notice which falls within the purview of the application of the doctrine of promissory estoppel. Applying this in my view, the respondents are promissorily estopped to terminate the service of the petitioner without serving one month's prior notice in terms of the appointment letter dated 01.10.2008.
17. Bennion on Statutory Interpretation (Sixth Edition, page 987) commenting on the subject principle of audi alterem partem has observed thus:
Page - 16 of 17 "The principle audi alterem partem requires not merely the affording of an opportunity to be heard, but that all aspects of that hearing are fair."
In the backdrop of the present case, the impugned order dated 12.09.2018 terminating the service of the writ petitioner without serving one month's prior notice as stipulated in the appointment letter dated 01.10.2008 is contrary to the above principle, and is, therefore, liable to be interfered with.
18. Lord Diplock speaking on "Procedural Impropriety" has commented that one of the grounds upon which actions may be reviewed in administrative law is that of procedural impropriety. The impropriety may consist either of the failure to follow procedure expressly provided by a statute or by some other instrument having the force of law, or of a breach of natural justice, or it may arise out of the failure to satisfy legitimate expectation. (Halsbury's Laws of England, Fourth Edition 2001, Re-issue Vol. 1(1) on 'Administrative Law" Para 24).
19. Lastly, in the facts of the present case, I may gainfully refer a quote where Lord Reid while discussing on "administrative power" speaking with the subject "validity" of an act has observed thus:
"If an act or decision, or an order or other instrument is invalid, it should in principle, be null and void for all purposes and it has been said there are no degrees of nullity." (Halsbury's Law of England, Fourth Edition, 2001 re-issue, Vol 1(1), Chapter Administrative Powers, Para 26 -'Validity')"
Page - 17 of 17
20. Having examined the instant matter and applying the principles laid down in the above authorities, I find force in the submission of learned Senior counsel for the petitioner that the decision of the respondents terminating the service of the petitioner without issuing one month's prior notice is illegal, arbitrary and violative of Article 14 of the Constitution of India. Consequently, the memorandum dated 12th September, 2018 issued by the respondent No.4 should not sustain being a nullity and non est, and hence, set aside and quashed.
21. Needless to say that the quashing of the memorandum dated 12th September, 2018 issued by the Project Director, Tripura AIDS Control Society since has been declared as bad in law, the writ petitioner is entitled to be reinstated in his post which he was holding at the time of issuance of the memorandum dated 12th September, 2018. However, the petitioner shall not be entitled to any pay and wages for the period he did not serve for the respondents.
22. The writ petition is accordingly allowed and disposed of.
JUDGE