WP(C)/1321/2021
2021 Latest Caselaw 951 Gua

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GAHC010035952021




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

                              Case No. : WP(C)/1321/2021

                   1. Upasana Deka
                   C/O. Lt. Hirdendra Nayh Deka,
                   R/O. Central Gotanagar,
                   Rly Qtr. No. 170(A),
                   Maligaon, Guwahati-171011.

                   2. Shayesta Amin,
                   W/O Md. Taizudding Sk,
                   R/O House No. 24(A),
                   J.M. Manjil,
                   Arunodoi Path, Christian Basti,
                   Guwahati-781005.
                                                                               ........Petitioners
                          Versus

                   1.The Srimanta Sankardeva University of Health Sciences,
                   (A State University Of Govt. Of Assam),
                   Rep. By The Vice Chancellor,
                   Narakasur Hilltop, Bhangagarh,
                   Guwahati-32, Assam.

                   2.The Registrar (I/C)
                   Srimanta Sankaradeva University of Health Sciences
                   Narakasur Hilltop, Bhangagarh
                   Guwahati-32, Assam.

                   3.The Dy. Registrar Cum Registrar (I/C)
                   Srimanta Sankaradeva University of Health Sciences
                   Narakasur Hilltop,
                   Bhangagarh
                   Guwahati-32, Assam .
                                                                              ........Respondents

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BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

Advocate for the petitioners : Mr. B. J. Ghosh.

Advocate for the respondents       :        Mr. D. Saikia,
                                            Mr. B. Gogoi.


Date of hearing                    :       10.03.2021
Date of judgment                   :        12.03.2021


                           JUDGMENT & ORDER (CAV)

Heard Mr. B. J. Ghosh, learned counsel for the petitioners. Also heard Mr. D. Saikia, learned Senior counsel, assisted by Mr. B. Gogoi, learned counsel for the respondents.

2. The petitioners are aggrieved by the impugned letters dated 11.02.2021 issued by the Registrar of the University, informing them that their contract employment would end on 10.03.2021.

3. The petitioners' case is that in terms of the advertisement dated 05.08.2019, for filling up the posts of Secretary to the Vice Chancellor and Secretary to the Registrar, the petitioners took part in the selection process. The petitioner No. 1 was appointed as Secretary to the Registrar and the petitioner No. 2 was appointed as Secretary to the Vice Chancellor, vide appointment letters dated 04.09.2019, which contained the following terms and conditions:-

1. The appointment is purely temporary and contractual basis.

2. The consolidated salary will be Rs.25,000/- (Twenty five thousands) only per month.

3. Deductions from salary like Professional Tax etc. Will be as per existing Page No.# 3/7

rules.

4. Duty hours will be as per Universities Rules.

5. No over time allowance will be paid.

6. Office punctuality, decency and discipline must be strictly followed.

7. In the event of discontinuation of service, the employer or the employee, as the case may be, will have to serve one month's notice in advance.

Subject to the acceptance of the above terms and conditions of appointment, you are hereby directed to join within 15 (fifteen) days from the date of receipt of this letter."

4. The petitioners' case is that they were initially appointed on contract basis for a period of 11 months, which was subsequently extended for another period of 11 months vide office order dated 11.08.2020. The extension for the second period of 11 months was made w.e.f. 06.03.2020 in respect of the petitioner No. 1 and w.e.f.

09.08.2020 in respect of the petitioner No. 2. The 15 th Executive Council also accorded

its ex-post-facto approval to the appointment of the petitioners vide 15 th Executive Council meeting minutes dated 17.01.2021.

5. The petitioners' counsel submits that as the petitioners' contract period have been extended for another period of 11 months till the first week of July, 2021, the respondents should not have issued the impugned notice dated 11.02.2021, terminating the petitioners' contract period w.e.f. 10.03.2021. In support of his submission that the respondents have inserted an unfair term and condition in terms of Clause-7 in the contract services of the petitioners, on the basis of their superior unfair bargaining power, the petitioners' counsel has relied upon the judgment of the Apex Court in the case of Central Inland Water Transport Corporation Limited and another -Vs- Brojo Nath Ganguly and another, reported in (1986) 3 SCC 156. He also submits that this Court should exercise its equity jurisdiction and allow the petitioners Page No.# 4/7

to complete their contract period, as per the second extension granted to them, as only 5 months remained for completing the second extension period.

6. Mr. D. Saikia, learned Senior counsel, appearing for the respondents submits that the services of the petitioners have been terminated by invoking Clause-7 of the petitioners' appointment letters, which provides that in the event of discontinuation of service, the employer or the employee, as the case may be, will have to give one month's notice. He submits that as one month's notice had been served upon the petitioners in terms of condition No. 7 of the appointment letters, there is no infirmity with the termination of the petitioners' service. He also submits that the Executive Council of the University in its' meeting held on 08.02.2021, had given its approval for discontinuing/terminating the services of all the contractual employees, excluding the Secretary to the Comptroller, Secretary to the Deputy Registrar and the Accounts Assistant. He submits that the services of the petitioners are no longer required and the continued retention of the petitioners would only drain the financial resources of the University. He submits that conditions of service of contract employees are governed by the contract agreement as held by the Apex Court in the case of State of Maharashtra and others -vs- Anita and another, reported in (2016) 5 SCC 293. He also submits that this Court had also disposed of WP(C) No. 8068/2018 "Dhiresh Das -Vs- State of Assam and 3 others vide order dated 03.02.2021 by following the judgment of the Apex Court in the State of Maharashtra and others -Vs- Anita and another (supra) , which was upheld by the Division Bench of this Court in WA 63/2021. The learned senior counsel thus submits that there was no illegality or arbitrariness in discontinuing the petitioners' services, as their services were no longer required. He accordingly submits that this writ petition should be dismissed.

7. I have heard the learned counsels for the parties.

8. In the case of Central Inland Water Transport Corporation Limited and another

-Vs- Brojo Nath Ganguly and another (supra), the Apex Court has held that the Courts have begun to recognize the possibility of an unconscionable bargain, which could be brought about by economic duress even between the parties. In the above case, the Page No.# 5/7

Central Inland Water Transport Corporation Limited, which was a Government Company, took over the business of another Company, i.e., the Rivers Steam Navigation Co. Ltd. and the services of the employees of the Company were taken over by the Corporation.

A challenge was made to Rule 9 (i) of the Corporation's Service, Discipline & Appeal Rules, 1979, which provided that the services of a permanent employee could be terminated on 3 (three) months' notice on either side or on payment of 3 (three) months pay plus D.A. to the employee or on deduction of a like amount from his salary as the case may be in lieu of the notice. Rule 36 gave the right to terminate the company employees on grounds of misconduct and Rule 38 provided the procedure to be followed in a disciplinary proceeding.

One of the respondents in the above case was called upon to file his written statement of defence as a disciplinary enquiry was proposed to be initiated against him, while the other respondent was to file a reply to an allegation of negligence. However, notices were issued under Rule 9 (i), terminating their services by paying 3 (three) months' salary. It was in the above context that the Apex Court held that the power conferred by Rule 9 (i) against a permanent employee would not only be arbitrary but discriminatory also. However, the facts in the present case are different, as the petitioners are contract employees bound by the conditions of their contract and not permanent employees.

9. In the case of State of Maharashtra and others -vs- Anita and another (supra) , the Apex Court has held that the conditions of services of contract employees are governed by the terms of the contract agreement. In the present case, condition No. 7 of the petitioners' appointment letters clearly provides that the employer or the employee will have to serve one month's notice in advance, in the event of discontinuation of service. The appointment letters also state that the appointed candidates can join their posts, if they accept the terms and conditions of their Page No.# 6/7

appointment, as provided in the appointment letters dated 04.09.2021.

10. The petitioners having accepted the terms and conditions of the contract employment jointed their posts. Once they have accepted the terms and conditions of their employment, they cannot be allowed to turn around and challenge the same. Also, there can be situations where the contract employees want to leave for greener pastures prior to completion of the contract period due to which the above clause can be found in generally all service contract agreements. As this Court is of the view that the facts in the case of Central Inland Water Transport Corporation Limited and another (Supra) is different from the facts of this case, the decision made in the above case is not applicable to this case.

11. The official records are perused and there is nothing to show that the petitioners have been terminated due to their poor performance or conduct in their work. As such, there is nothing to show that there has been any arbitrariness on the part of the respondents in terminating the services of the petitioners. The termination of the petitioners' service is also not punitive in nature. As the respondents do not require the services of the petitioners any longer, the respondents cannot be faulted for terminating the services of the petitioners by invoking Clause-7 of the appointment letters.

The records also show that the Executive Council of the University has approved the termination of a number of contract employees, including the petitioners, in it's meeting held on 08.02.2021. As such, there is nothing to show that the decision to terminate the services of the petitioners specifically targets only the petitioners.

12. A perusal of the advertisement dated 05.08.2019, calling for candidates for the posts against which the petitioners have been appointed, clearly shows that the posts is purely contractual in nature which was known to the petitioners and as such, the service condition of contractual employees would have to be governed by the terms of the contract. Accordingly, this Court does not find any infirmity in the invocation of Clause-7 of the appointment letters of the petitioners, as they are general Page No.# 7/7

conditions of service governing the service conditions of the petitioners.

13. In view of the reasons stated above, this Court does not find any infirmity in the impugned letters dated 11.02.2021, informing the petitioners that their contract employment would end on 10.03.2021.

14. This writ petition is accordingly dismissed.

JUDGE

Comparing Assistant