Kula Prasad Chamuah vs The State Of Assam And 6 Ors
2021 Latest Caselaw 1140 Gua

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GAHC010056212021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/2046/2021

         KULA PRASAD CHAMUAH
         S/O- MAHENDRA CHAMUAH, R/O- LECHAM BATAMARI, P.O. BATAMARI,
         P.S. GHILAMARA, DIST.- LAKHIMPUR, ASSAM, PIN- 787053



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY-06

         2:THE COMMISSIONER
          PANCHAYAT AND RURAL DEVELOPMENT
          JURIPAR
          PANJABARI
          GHY-37

         3:THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM
          PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
          DISPUR
          GHY-06

         4:THE DY. COMMISSIONER
          LAKHIMPUR AND DPC
          MGNREGA
          LAKHIMPUR

         5:THE PROJECT DIRECTOR
          DISTRICT RURAL DEVELOPMENT AGENCY
          LAKHIMPUR
          NORTH LAKHIMPUR

         6:THE SUB-DIVISIONAL OFFICER
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              (CIVIL)
              DHAKUAKHANA SUB-DIVISION
              DHAKUAKHANA

              7:THE BLOCK DEVELOPMENT OFFICER
               DHAKUAKHANA DEVELOPMENT BLOCK
               DHAKUAKHAN

Advocate for the Petitioner   : MR M J QUADIR

Advocate for the Respondent : SC, PNRD




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

Date : 24.03.2021

1. Heard Mr. M.J. Quadir, learned counsel appearing for the petitioner, who submits that the petitioner was engaged as an Accredited Engineer in the year 2010 in the Office of the Project Director, District Rural Development Agency, Lakhimpur under MGNREGA, on contractual basis.

2. The contractual service of the petitioner was extended from time to time, the last extension being made vide order dated 01.04.2017, wherein the contractual engagement was

extended upto 29th September, 2017. However, due to an FIR being lodged against the petitioner and some other persons for misappropriation of money, Dhakuakhana Police Station case No. 176/2017 under Sections 419/420/409/465/468/471/34 of the Indian Penal Code was registered. Thereafter, the petitioner's service was terminated vide order dated 18.08.2017 even though his contractual service was to end one month later i.e. on 29.09.2017.

3. The petitioner's counsel submits that there was no departmental enquiry initiated against the petitioner in respect of the charges of corruption leveled against him by the respondent no.5 and the police has till date, neither submitted the Final Report nor charge-sheet in Page No.# 3/6

respect of the Criminal case. He submits that as the termination of the petitioner was due to the FIR/Criminal case, which is stigmatic in nature, the petitioner should have been removed from service, only after a departmental proceeding had been initiated against the petitioner.

4. Mr. M. Nath, learned counsel appearing for the respondent no. 1, 2, 3, 5 & 7 and Ms. M. D. Borah, learned counsel appearing for respondent no. 4 & 6 submit that as the petitioner's contractual service period had expired on 29.09.2017, this court should not exercise it's power of review and examine the legality or otherwise, of the termination of the petitioner's engagement, especially when the petitioner has approached this Court 3 ½ years after the termination order was issued.

In support of their submissions, the learned counsels for the respondents rely upon the Judgment of this Court in Ajoy Kumar Haloi Vs State of Assam, reported in (2014) 3 GLT 412 .

5. I have heard the counsels for the parties.

6. The facts, as enumerated by the petitioner's counsel, shows that the petitioner's contractual service had been terminated on 18.08.2017, due to a Police case being filed against the petitioner and others, on the allegation of having misappropriated money. The termination of the petitioner's service was made 1 month prior to the expiry of the petitioner's contractual engagement, which was to end on 29.09.2017. After the petitioner's service along with three other Accredited Engineers, who were also accused/charged with misappropriation of money, had been terminated by the order dated 18.08.2017, the petitioner filed an application dated 03.02.2019 to the Minister Panchayat and Rural Development, Assam, praying for allowing him to rejoin his duty. The petitioner's application dated 03.02.2019 is reproduced below:-

"Sub:- Application for re-joining.

Respected Sir, With reference to the subject cited above, I would like to inform Page No.# 4/6

you that I served your department under Dhakuakhana Dev. Block

from 1st January, 2011 to 17th August, 2017 as accredited engineer (DH). But Sir, I was compelled to leave the job due to some unfavourable reasons. Now, Sir kindly allow me to re-join my duty. I will be very grateful. This is for your kind and needful action. "

7. Subsequent to the above letter dated 03.02.2019 submitted by the petitioner, the

petitioner has approached this court against his termination order for the 1 st time after more than 3 ½ years. As such, this Court is of the view that the present writ petition is hit by delay and laches.

8. Besides the above, it is seen that as per the term and condition no.11 of the contract agreement made between the petitioner and the respondents, a contract can be terminated without issuing any notice, if the contractual staff is found to be involved in any act of misconduct. Term and condition no.11 of the contract agreement dated 01.04.2017 states as follows:-

" 11. Termination of contract: The Agency reserves the right to terminate the contractual agreement at any point of time if it is found that the services rendered by the contractual staff is not satisfactory, or if it is found that any declaration of information furnished by him/her proves to be false or willfully suppressed, or if there is any breach of any of the term and condition of this Term of Contractual Engagement, or if the contractual staff is found to be involved in any act of indiscipline or misconduct, or if the contractual staff is found to be involved in any act that may become embarrassing for the Agency, or if the contractual staff is absent from job for one week without any prior written sanction. In case funds are not available under the Page No.# 5/6

administrative contingency head from where the remunerations are paid. The contract may be terminated forthwith without any notice. The decision of the Agency in this regard shall be final and binding on the contractual staff and shall not be subject to challenge".

9. In the case of Ajoy Kumar Haloi Vs State of Assam (Supra) the petitioner therein had challenged his termination from service. However, this Court rejected the case of the petitioner for reinstatement on the ground that the petitioner's contractual period had expired in the meantime and that the Court could not extend the contract period of the petitioner therein.

Para 11 of the Judgment of Ajoy Kumar Haloi Vs State of Assam (Supra) is reproduced below:-

"11. In the light of the facts as unfolded above, irrespective of the question as to whether the termination of the services of the petitioner is illegal or not, the core question to be determined now is whether the writ petition is overtaken by time and has, ipso facto, becomes infractuous? After all, this Court cannot extend the period of engagement of the petitioner: the legitimate function of the respondent no.2 cannot be usurped by this Court. If the period of his contractual engagement were still operative now, the power of judicial review could have been exercised by this Court to examine the legality or otherwise of the termination of his engagement, but that is no longer possible in view of the expiry of contractual engagement, but that is no longer possible in view of the expiry of contractual engagement on or about 01.11.2010, which was not extended thereafter. If there has breach of contract in the termination of the services of the petitioner, it may give rise to a cause of action for damages/compensation, for which the remedy available is a civil suit and not a writ petition".

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10. This Court is also of the view that as the petitioner's contract period expired on 29.09.2017, this Court cannot extend the petitioner's contract period beyond 29.09.2017. Besides, the petitioner is under a cloud and the the termination of the petitioner's service, which has been made under term and condition no.11 of the contract agreement, is also not under challenge.

11. In view of the above reasons, the decision of this court in Ajoy Kumar Haloi Vs State of Assam (Supra) and keeping in view the delay and laches in approaching this Court, this court is not inclined to exercise it's discretion in the present case.

12. The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant