Gauhati High Court
Anowar Husain Ahmed vs The State Of Assam And 4 Ors on 16 December, 2022
Author: R.M. Chhaya
Bench: Chief Justice, Soumitra Saikia
Page No.# 1/10
GAHC010097172022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/182/2022
ANOWAR HUSAIN AHMED
S/O LT. SK. NURUDDIN AHMED R/O VILL- LAKHIPUR, NATUN BAZAR, P.O.
LAKHIPUR, P.S. LAKHIPUR DIST. GOALPARA, ASSAM, IN - 783129.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
HEALTH and F.W. DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI -36.
3:THE JOINT DIRECTOR OF HEALTH SERVICES
M CUM STATE PROGRAMME OFFICER
NATIONAL VECTOR BORNE DISEASE CONTROL PROGRAMEM ASSAM
NVBDCP
CHRISTIAN BASTI
GUWAHATI -5.
4:JOINT DIRECTOR OF HEALTH SERVICES
DISTRICT MALARIA OFFICER
KOKRAJAHR
DIST. KOKRAJHAR.
5:DIRECTOR OF HEALTH SERVICES
BTC
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KOKRAJHA
Advocate for the Petitioner : MR H DAS
Advocate for the Respondent : SC, HEALTH
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
16.12.2022 (R.M. Chhaya, CJ) Feeling aggrieved and dissatisfied by the judgment and order dated 21.04.2022, passed by the learned Single Judge in WP(C) 7971/2021, the original petitioner has preferred this intra-court appeal. The following facts emerge from the record of the appeal.
2. The Director of Health Services, Assam, issued an Employment Notice dated 03.11.2011 inviting applications for 68 nos. of posts of Malaria Technical Supervisor (MTS) on contractual basis for one year. It is a matter of record that the appellant- original petitioner applied for the same and also participated in the selection process. Vide an order dated 15.10.2012, issued by the competent authority-Joint Director of Health Services (M) cum State Programme Officer, NVBDCP, Assam, the appellant- original petitioner came to be appointed as MTS and he was posted at Zirikinding Primary Health Centre in Karbi Anglong District. The appointment letter shows that the appellant's appointment was for a period of one year. The record indicates that the appellant submitted his joining report dated 05.11.2012 before the District Malaria Officer, Karbi Anglong. Immediately thereafter, on 14.11.2012, the appellant submitted a representation before the Joint Director of Health Services (M) cum State Programme Officer, NVBDCP, Assam, stating that even though the appellant desired to Page No.# 3/10 join as MTS at his place of posting, some unknown miscreants threatened him not to join in the district and not to serve and also threatened that otherwise he would lose his life. The appellant thereafter requested the authorities to transfer and post him in Goalpara District. The record also indicates that the appellant ordinarily resides in Goalpara District. The authorities considered the representation so made favourably and transferred and posted the appellant as MTS in a vacant post at Kachugaon Primary Health Centre in Kokrajhar District. Even though after such consideration and transfer the appellant had joined as MTS at Kachugaon Primary Health Centre vide joining report on 20.09.2013, he again filed a representation dated 24.01.2014 and made a similar request on similar grounds that some unknown persons were threatening him not to stay at Kokrajhar and to do the work. As the record unfolds, the appellant did not even wait for consideration of his representation dated 24.01.2014 and deposited the official motorcycle allotted to him along with the Registration Certificate of the motorcycle in the office of the District Malaria Eradication Officer, Kokrajhar, with an intention to abandon the contractual engagement. Thereafter, the wife of the appellant submitted a representation dated 06.05.2014 to the Joint Director of Health Services (M), Assam, stating that some unknown persons threatened her husband, who was serving as MTS at Kachugaon under Kokrajhar District, and requesting to transfer her husband from Kachugaon to some other place. The record further indicates that the appellant received salary only up to January, 2014. Ultimately, vide the order dated 22.07.2014 impugned in the writ petition, the services of the appellant as MTS was put to an end.
3. The order dated 22.07.2014 only records that services of the appellant was "no longer required w.e.f. 22.07.2014". The said order came to be challenged by the appellant-original petitioner unsuccessfully before the learned Single Judge and, being aggrieved by the order passed by the learned Single Judge, the present appeal is filed.
4. Heard Mr. H. Das, learned counsel appearing for the appellant. Also heard Mr. B. Page No.# 4/10 Gogoi, learned Standing counsel, Health Department, Assam, appearing for respondent nos. 1 to 4 and Ms. R. B. Bora, learned Standing counsel, BTC, appearing for respondent no. 5.
5. Mr. H. Das, learned counsel for the appellant contended as under:
(i) That while passing the impugned order dated 22.07.2014, no notice was given to the appellant-original petitioner and thus there is breach of principles of natural justice.
(ii) It was also contended that the order dated 22.07.2014 was never communicated to the appellant but was made known only in January, 2017.
6. Mr. H. Das, learned counsel for the appellant-original petitioner relied upon the judgment of the Apex Court in the case of Dulu Devi vs. State of Assam and Others, reported in (2016) 1 SCC 622 and a judgment of a Division Bench of this Court in the case of Bulbul Lahon vs. Union of India and Ors., reported in (2022) 3 GLR 362 to buttress his arguments. It was contended by Mr. Das that the order, being punitive in nature, was passed without giving any notice to the appellant and, therefore, the learned Single Judge has committed an error in coming to the conclusion that the judgments relied upon by the writ petitioner are not applicable in the present case. It was further contended by the learned counsel for the appellant-original petitioner that the learned Single Judge failed to consider the fact that at both the places of his posting the appellant-original petitioner could not continue rendering his services peacefully due to disturbances caused by extremists. It was also contended by the learned counsel for the appellant-original petitioner that even though there were vacant posts elsewhere, the appellant was not posted there. With the aforesaid grounds it was contended by the learned counsel for the appellant-original petitioner that the appeal requires consideration and the prayers made in this appeal deserve to be allowed. Learned counsel for the appellant has also relied upon the judgment of the Hon'ble Apex Court in Municipal Council, Nangal and Others vs. Aruna Sainia, Page No.# 5/10 reported in (2017) 4 SCC 645.
7. Per contra, Mr. B. Gogoi, learned Standing counsel, Health Department, Assam, and Ms. R. B. Bora, learned Standing counsel, BTC, appearing for the respondents have opposed the appeal. It was contended by the learned counsel for the respondents that the appellant-original petitioner on the flimsy grounds of some threat perceptions has never performed his duty as MTS at either of the places where he was posted. It was also contended that from the conduct of the appellant it clearly appears that the appellant never desired to work except at the place of his choice. Learned counsel for the respondents have submitted that as there was no performance of the appellant and the appointment of the appellant was purely on contractual basis for one year, it was decided by the authorities that the services of the appellant was no more required. Learned counsel for the respondents also contended that the judgments relied upon by the learned counsel for the appellant are on totally different fact situations and would not be applicable to the case of the appellant and that the appeal being meritless deserves to be dismissed.
No other or further submissions, contentions or grounds have been raised by the learned counsels appearing for the parties.
8. Upon hearing the learned counsels for the parties and considering the record of this appeal, it clearly transpires that the appellant was appointed on contractual basis vide order dated 15.10.2012 whereby the appellant was asked to join within 15 days. The order dated 15.10.2012 clearly stipulates that the appointment of the appellant's contractual appointment to the post of MTS was for a period of one year from the date of joining, on a fixed pay of Rs. 8,500/- per month. From the contentions of the appellant it clearly transpires that on the ground that the appellant received threat from unknown miscreants, the appellant never performed duty as MTS neither at his first place of posting, i.e., Zirikinding Primary Health Centre in Karbi Anglong District, nor at Kachugaon Primary Health Centre under Kokrajhar District, where he was subsequently posted on his request for transfer from his first place of posting.
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9. The facts on record clearly show that after being appointed as MTS on contractual basis for one year, practically the appellant has not worked at all except submitting his joining report. As rightly pointed out by the learned counsels for the respondents, for extension of the contractual period the authorities are required to make assessment of the performance of the contractual employee. The learned Single Judge has considered the fact that annual assessment was done by the competent committee on 15/16th May, 2014 wherein the authorities decided not to further continue with the engagement of the appellant in terms of the Notice of Employment as there was no performance of the appellant during the period of his engagement and his contractual period came to an end, which is evident from the record of the appeal. The record also reveals that having been selected and appointed as MTS and having been posted at Zirikinding PHC, at the first instance, and thereafter at Kachugaon PHC at the request made by the appellant himself, the appellant has not performed any duty except filing representations for transfer. From the contentions of the appellant it clearly appears that the appellant wanted posting in his home district of Goalpara. On the contrary, the conduct of the appellant indicates that the appellant voluntarily abandoned his engagement since January/February, 2014.
10. In Municipal Council, Nangal (supra), the Hon'ble Apex Court has considered the fact that the employee worked on regular basis for a period of 9 years before termination of her service, whereas in the case on hand the appellant was appointed on contractual basis only for one year and the appellant never performed his duty at either of the two places where he was posted as MTS and, as his services were not required any longer, the contract came to be discontinued. In the facts of this case, therefore, the judgment of the Hon'ble Apex Court in Municipal Council, Nangal (supra) would not be applicable.
11. Similarly, the case of Dulu Devi (supra) relied upon by the learned counsel for the appellant would not take the case of the appellant any further as the appellant himself relinquished his job and did not attend to his duty after January, 2014.
Page No.# 7/10 Therefore, the Judgment of the of the Apex Court in Dulu Devi (supra) would not be applicable to the case on hand.
12. In Bulbul Lahon (supra), relied upon by the learned counsel for the appellant, the employee was appointed on regular basis and he had worked for almost one year and his services were terminated after enquiry without giving him any opportunity of hearing. The ratio laid down by the Coordinate Bench of this Court in Bulbul Lahon (supra) would not be applicable to the present case as not only that the present appellant-original petitioner was appointed on contractual basis for one year but the conduct of the appellant-original petitioner also shows that he himself abandoned his contractual engagement and, after reviewing the performance of the appellant the impugned order came to be passed as there was no performance of the appellant during the period of his engagement.
13. The learned Single Judge has, after considering the submissions made by parties, observed thus:
"10. We have heard the learned counsel for the parties. We have noticed that upon participating in the selection process pursuant to the notice of employment dated 03.11.2011, the petitioner was offered an appointment as MTS dated 15.10.2012 and was placed at Zirikinding PHC in the Karbi Anglong district. Pursuant thereto, the petitioner submitted his joining report before the District Malaria Officer, Karbi Anglong on 05.11.2012. On
14.11.2012, the petitioner made a representation to the Joint Director of Health Services (M) cum State Programme Officer, NVBDCP stating that some unknown miscreants had threatened him by asking him not to join in his place of posting and therefore made a request that his place of posting be changed to any vacant post in the Goalpara district. We have already taken note of that it is the submission of the petitioner that he is ordinarily a resident of Goalpara district. In this respect, it is also the submission of Mr. B Gogoi, learned counsel for the Health and Family Welfare Department that if some unknown miscreants had threatened the petitioner, no records is available that the petitioner ever made any complaint of such threat either to the officials in the Health and Family Welfare Department or had filed any FIR before the concerned police station.
11. Taking note of both the aspects that no information was provided to any authority as regards any threat and further that he desired a place of posting in his home district at Goalpara clearly gives an indication of the Page No.# 8/10 conduct on the part of the petitioner. Secondly, upon entertaining the said representation requesting a change of place of posting, the petitioner was posted at Kachugaon PHC in the Kokrajhar district by the order dated 30.07.2013. Here again after having joining as MTS at Kachugaon PHC in the Kokrajhar district from 20.09.2013, the petitioner submitted another representation dated 24.01.2014 raising the same issue that some undesirable persons are warning him not to continue with the engagement and therefore, requested that necessary steps be taken in the matter. But immediately thereafter, on 01.02.2014, the petitioner deposited the official motor cycle allotted to him for his official duties and did not attend his duties any further. The entire conduct of the petitioner, prima facie indicates it to be an abandonment of his engagement, leading to a factual conclusion that the petitioner did not perform his duties upon his engagement as a MTS in either of the two places where he was posted.
12. *** *** ***
13. In the circumstances, as required under the conditions of the notice of employment, the respondent authorities were required to make an assessment as regards the service rendered by the petitioner to arrive at any such decision whether his engagement is required to be continued any further or not beyond the period of initial one year. In the absence of any duty being performed by the petitioner, we cannot hold that the conclusion arrived at by the competent authority to take the decision that there was no performance of the petitioner can be faulted with. In the circumstance, we have to understand that the order impugned dated 22.07.2014 providing that the services of the petitioner is not required any further would have to be construed to be an order conveying the decision of the authorities not to further extend the contractual engagement of the petitioner beyond the initial one year, rather it being a decision to terminate the engagement of the petitioner.
14. Apart from the mere allegation that some miscreants had been threatening the petitioner in both the places where he was posted, no further material can be made available by the 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 the petitioner had abandoned his engagement.
15. *** *** ***
16. The proposition of law relied upon by the petitioner rendered in Ikram Ali Hazarika (supra) would also not be applicable in the facts of the present case inasmuch as in the matter in Ikram Ali Hazarika (supra), the issue was that a contractual employee was terminated from service on the allegation of unsatisfactory performance. In the said case, the contractual employee therein continued to render his service, but on the assessment of the authorities, his services were not satisfactory. In the circumstances, there Page No.# 9/10 was a requirement laid down that an opportunity of hearing would be required.
17. But in the instant case, it is not the allegation against the petitioner that his performance is unsatisfactory, whereas on the other hand, the factual matrix shows that it is a case where the petitioner did not attend to his duties and hence it is a case of no performance at all. As the petitioner is unable to put forth any circumstance or reason that he had in fact continued with his service and not abandoned, we are of the view that 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, but would be circumstantial in nature where the person aggrieved would have to show that by not been given an opportunity of hearing, some kind of prejudice was caused to him. No such circumstance is discernible in the present writ petition.
18. As regards the other proposition relied upon by Mr. H Das, learned counsel for the petitioner that an order would become effective only upon it being communicated or made known to the person concerned, we take note of that in the instant case, although the order impugned is dated 22.07.2014, the said was made known or communicated to the petitioner only in January, 2017 by means of an affidavit in opposition in WP(C) No. 2850/2015.
19. From such point of view, as per the proposition laid down by the Supreme Court in Dulu Devi (supra), it has to be accepted that the order impugned dated 22.07.2014 became effective in respect of the petitioner from January, 2017. If it is so, it also has to be construed that up to January, 2017, the services of the petitioner were not dispensed, but the order being not effective up to January, 2017 on its own would not render the said order to be illegal or unlawful in any other respect.
20. From such point of view, if the services of the petitioner were not dispensed up to January, 2017, liberty is granted to the petitioner to file appropriate representation for any financial remuneration that he may be entitled provided the petitioner in his representation can make out an appropriate case for entitlement of such remuneration. In the event, any such representation is submitted, the respondents in the Health and Family Welfare Department through the Director of Health Services to pass a reasoned order on the entitlement of such financial remuneration in the facts and circumstances and under the law provided the petitioner can establish that he had actually rendered his services for the said period.
The writ petition is disposed of in the above terms."
14. We are in total agreement with the observations made by the learned Single Judge and, hence, no interference is called for. The appeal being bereft of any merits Page No.# 10/10 deserves to be dismissed and, accordingly, the same is dismissed. However, even while dismissing the appeal, we make it clear that the respondent authorities shall adhere to the directions issued by the learned Single Judge in paragraph 20 of the judgment and, if any representation is filed by the appellant for any financial remuneration, the same shall be considered as ordered by the learned Single Judge.
Parties to bear their own costs.
JUDGE CHIEF JUSTICE Comparing Assistant