Gauhati High Court
WA/63/2021 on 18 February, 2021
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GAHC010027502021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Appeal No.63 of 2021
Sri Dhiresh Das, aged about 63 years,
S/o. Late Kamaleswar Das,
R/o. House No.15, Chandra Choudhury Path,
Bhetapara, P.O. Betola, Guwahati,
District- Kamrup (M), Pin- 781028.
............Appellant
-versus-
1. The State of Assam,
Represented by the Chief Secretary to the Government of
Assam cum Chairman State AYUSH Society, Dispur, Guwahati-
06.
2. The Commissioner and Secretary to the Govt. of
Assam, Health & FW Department & Chairman, Executive Body,
State AYUSH Society, Assam, Dispur, Guwahati- 06.
3. The Secretary to the Govt. of Assam, Health & FW
Department & Vice-Chairman, Executive Body, State AYUSH
Society, Assam, Dispur, Guwahati- 06.
4. The Director of AYUSH, Assam-cum-Member
Secretary, State AYUSH Society, Assam, Banphul Path, Basistha
Road, Dispur, Ghy- 06.
...............Respondents
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:: BEFORE ::
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
For the Appellant : Mr. M.J. Quadir, Advocate.
For the Respondent Nos.1, 2, 3 & 4 : Mr. D. Saikia, Senior Standing Counsel,
Government of Assam.
Mr. B. Gogoi, Advocate.
Date of hearing of Judgment & Order : 18th February, 2021.
JUDGMENT AND ORDER (ORAL)
(Sudhanshu Dhulia, C.J.)
Heard Mr. M.J. Quadir, learned counsel for the writ appellant/writ petitioner. Also heard Mr.
D. Saikia, learned senior standing counsel, Government of Assam for all the respondents, assisted
by Mr. B. Gogoi, Advocate.
2. The writ appellant/writ petitioner before this Court has challenged the order dated
03.02.2021 passed by the learned Single Judge in Writ Petition No.8068/2018 dismissing the writ
petition.
3. The brief facts of the case are that the writ appellant/writ petitioner was employed by the
Department AUYSH, which runs as a Society, under the Department of Health and Family Welfare,
Government of Assam. Vide order dated 10.09.2015, the writ appellant/writ petitioner was
appointed as a Finance Manager on contractual basis for a period of one year with effect from the
date of his joining. He joined the said post on 19.10.2015, which was further extended with effect
from 19.10.2016 to 18.10.2017 vide order dated 26.12.2016. After the expiry of second contract,
the writ appellant/writ petitioner's service was extended to another period of one year with effect
from 19.10.2017 to 18.10.2018. But thereafter the writ appellant/writ petitioner's contractual
term was not extended and this was because of his poor performance. The stipulated conditions
in the Clause 5 and 8 of the contract are as under:-
"5. The services of the 1st Party shall stand automatically terminated at the expiry of contract
period, without any notice or notice pay and without any liability on part of the Society to pay any
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retrenchment or other compensation or other amounts to the party.
8. Either of the parties hereto have the right to terminate this Agreement without assigning any reasons;
provided that a written notice of one month is given to the other party. Both the parties may, in lieu of the
written notice, give the other party a sum equivalent to the amount of his salary for one month."
4. On perusal of records, which have been placed before us, we find that the writ
appellant/writ petitioner was not performing his duties to the satisfaction of the employer and
therefore, reminder was given to him on 1st August, 2017, which is a subject-matter of warning
letter and it says as under:-
"To:
Sri. Dhiresh Das,
Finance Manager, SPMU, National AYUSH Mission, Assam.
Sub: Warning letter.
It has been observed that you are not performing up to the level that been expected, resulting
poor implementation of National AYUSH Mission schemes in the State. Performing below the level is
making yourself liable for suitable action against you. You are hereby warned to develop your
performance; failure to do so shall invoke appropriate action.
Director of AYUSH & Member Secretary (EB),
National AYUSH Mission, Assam.
Memo No: AYUSH/91/2014/Pt-VII (a)/ Dated 01.08.2017.
Copy to:-
1. PS to the Principal Secretary to the Govt. of Assam, H&FW Department and Chairperson (EB) State
AYUSH Society, Assam for kind appraisal of Principal Secretary."
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5. It appears that the writ appellant/writ petitioner did not improve his performance as he
was thereafter again assessed poor performance which is 3.5 out of 10 and since the
performance was below average, his contractual service was not renewed thereafter. Aggrieved,
he filed the writ petition which was dismissed by the learned Single Judge who did not find favour
with the case of the writ appellant/writ petitioner.
6. In the writ appeal, the learned counsel for the writ appellant/writ petitioner has pointed
that principles of natural justice have been violated and he has relied upon the decision of the
Apex Court in the case of Dev Dutt -versus- Union of India and Others , reported in (2008) 8 SCC
725. In the case of Dev Utt (supra), the Hon'ble Apex Court had laid down that the downgraded
entry of an employee are liable to be communicated to him so that he can improve his
performance. The said case, however, is not applicable in the facts and circumstances of the
present case as the writ appellant/writ petitioner was not in regular employment at the relevant
time with the department. In fact, the admitted case is that there was no regular record of his
service which is maintained for a regular employee.
7. Be that as it may, the fact of the matter is that a year prior to his discontinuation or non-
renewal of contract he was cautioned to improve his performance as the same was not to the
satisfaction of the department. We feel that the department was not bound to do that but it was
only fair in their part to have done that. We find there is absolutely no merit in the writ appeal
and the same stands dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
