Anowar Hussain Ahmed vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1322 Gua

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GAHC010154592017




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

                            Case No. : WP(C)/7971/2017

           ANOWAR HUSSAIN 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 3 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
            KOKRAJHA

Advocate for the Petitioner : MR.H DAS
Advocate for the Respondent : MS S SARMA (SC, HEALTH DEPT., R-1 TO 4)
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                                BEFORE
           HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                   JUDGMENT

Date : 21-04-2022

Heard Mr. H. Das, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned counsel for the respondents No.1, 2 and 3 being the authorities under the Health and Family Welfare Department of the Government of Assam and Ms. R.B. Bora, learned counsel for the respondent BTC.

2. Pursuant to an employment notice dated 03.11.2011 issued by the Director of Health Services, Assam the petitioner participated in a selection process for, amongst others, the post of Malaria Technical Supervisor (MTS). The employment notice provides that the vacancies for MTS was 68 and further that the engagement would be on contractual basis for a period of one year from the date of engagement , which may be extended further on the basis of performance. The petitioner upon a successful participation in the selection process was offered an appointment by the order dated 15.10.2012 of the Joint Director of Health Services (M) Cum State Programme Officer, NVBDCP, Assam and as per the order of appointment, the petitioner was given a place of posting at Zirikinding PHC, in the Karbi Anglong district. The order of appointment specifically provides that it was an engagement on contractual basis for a period of one year. The petitioner submitted a joining report 05.11.2012 before the District Malaria Officer, Karbi Anglong. On 14.11.2012, the petitioner submitted a representation before the Joint Director of Health Services (M) cum State Programme Officer NVBDCP, Assam stating that he went to join as MTS in the Karbi Anglong district, but some unknown miscreants threatened him not to join in the district and also not to serve, or otherwise, the petitioner would lose his life. Accordingly, a request was made that the petitioner be transferred and be Page No.# 3/10

given a place of posting in the Goalpara district. It has been stated by the learned counsel for the petitioner that the petitioner is ordinarily a resident of Goalpara district. Be that as it may, by the order dated 30.07.2013 of the Joint of Health Services (M) cum State Programme Officer, NVBDCP, the petitioner was transferred and posted as MTS in a vacant post at Kachugaon PHC in the Kokrajhar district. By a joining report dated 20.09.2013 the petitioner joined at Kachugaon as MTS. On 24.01.2014, the petitioner submitted another representation before the District Programme Officer, Kokrajhar stating that he is facing some desirable warning from some unknown person asking him not to stay at Kokrajhar and do the work. Without waiting for the authorities to give any consideration to the said representation made on 24.01.2014, the petitioner deposited the official motorcycle allotted to him along with R/C, Insurance Certificate bearing registration No. AS01-BE/3838 in the Office of the District Malaria Eradication Officer, Kokrajhar. The very fact that the petitioner had deposited the official motor cycle allotted to him gives an indication that the petitioner had the intention to abandon the contractual engagement made in his favour. After abandoning his service, the wife of the petitioner submitted a representation dated 06.05.2014 to the Joint Director of Health Services (M) stating that some unknown persons had threatened her husband who was serving as MTS at Kachugaon under the Kokrajhar district although otherwise he was performing his duties in a sincere manner and because of such threat, the petitioner developed a 'disappointment' as well as 'mental curiosity'. Accordingly, a request was made that the petitioner be transferred to some other place. A communication dated 26.65.2015 from the District Malaria Officer, Kokrajhar shows that the petitioner received his salary up to January, 2014 and thereafter no salary was paid and further the official motor cycle was also deposited with Page No.# 4/10

the authorities.

3. In the meantime, by the order impugned dated 22.07.2014 it was provided that the service of the petitioner as MTS at Kachugaon, under Kokrajhar district was no longer required w.e.f. 22.07.2014. The petitioner had earlier instituted WP(C) 2850/2015 claiming for salary for certain period. In the course of the said writ proceeding, an affidavit-in-opposition was filed sometime in January, 2017 and in the said affidavit, the order dispensing with the service of the petitioner was enclosed. Upon receiving the order impugned dated 22.07.2014 dispensing with the service by means of the affidavit-in-opposition in the other writ petition, the said writ petition being WP(C) 2850/2015 was withdrawn by the petitioner with liberty to file a fresh writ petition assailing the order dispensing his service. In the circumstance, this petition is instituted.

4. Mr. H. Das, learned counsel for the petitioner submits that the petitioner could not continue with his engagement because of the threats alleged to have been made to him by certain unknown miscreants.

5. Further reliance is placed on by the learned counsel for the petitioner on a pronouncement of this Court rendered in Ikram Ali Hazarika -vs- State of Assam and others, reported in 2018 (2) GLJ 398, wherein in paragraph 11, it had been provided that in the event of unsatisfactory performance of a contractual employee leading to his termination, there is a requirement of law to give the employee an opportunity of hearing in the form of a show cause, which has to be preceded before any order of termination is made.

6. Reliance is also placed on the pronouncement of the Supreme Court in Dulu Devi -vs- State of Assam and others, reported in (2016) 1 SCC 622, wherein a proposition had been laid down that if the appointing authority Page No.# 5/10

passes an order of dismissal of an employee, but does not communicate it to the person concerned, such order of dismissal shall not take its effect unless the person concerned knows about the order or is otherwise communicated to the person concerned.

7. By referring to the said proposition, it is stated by Mr. H Das, learned counsel for the petitioner that in the instant case, the impugned order dated 22.07.2014 providing that the services of the petitioner is not required any further was not communicated to the petitioner and the petitioner for the first time came to know about the said order when the affidavit in opposition in WP(C) No. 2850/2015 was served on the petitioner in the month of January, 2017.

8. Mr. B Gogoi, learned counsel for the Health and Family Welfare Department by referring to the notice of employment dated 03.11.2011submits that the petitioner was engaged on a contractual basis for a period of one year from the date of the engagement with a rider that the engagement may be extended further on the basis of performance. By referring to the said provision in the employment notice, Mr. B Gogoi, learned counsel contends that for an engagement beyond the initial period of one year, there was also a requirement on the part of the respondent authorities to make an assessment on the performance of the petitioner, so as to take a decision as to whether to continue further with the engagement. Mr. B Gogoi, learned counsel refers to the minutes of the Committee for Annual Assessment of Contractual Manpower under

NVBDCP with the Director of Health Services, Assam as the Chairman dated 15 th

and 16th May, 2014. By referring to the minutes of the meeting, Mr. B Gogoi, learned counsel points out that the contractual employees were assessed as per Page No.# 6/10

the gradation which comprised of Grade-A to be satisfactory performance, Grade-B to be performance not satisfactory requiring improvement of performance with warning, Grade-C to be poor performance to continue for three months for improvement to be reviewed after three months and Grade-D comprising of no performance and recommend for termination from service. As

per the assessment of the Committee in its meeting of 15th and 15th of May, 2014, the petitioner Anowar Hussain Ahmed was categorized at Grade-D i.e. no performance with recommendation for termination.

9. By referring to the said minutes, it is the submission of Mr. B Gogoi, learned counsel for the Health and Family Welfare Department that it is not a case of termination of the services of the petitioner simpliciter, but on the other hand, it was a decision of the authorities not to further continue with the engagement in terms of the notice of employment pursuant to which the petitioner was engaged. Mr. B Gogoi, learned counsel contends that the records reveal that the petitioner never attended to his duties either at his initial place of posting at Zirikinding PHC in the Karbi Anglong district nor at his subsequent place of posting at Kachugaon in the Kokrajhar district and hence it was a case of no performance at all. Mr. B Gogoi, learned counsel further contends by referring to the Annexure-K document by which the petitioner had handed over his official motor cycle allotted to him and left the place of posting and that the petitioner had voluntarily abandoned his engagement.

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 Page No.# 7/10

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 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 Page No.# 8/10

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. Mr. B Gogoi, learned counsel for the Health and Family Welfare Department upon being queried gives a reply that such similar allegations of threat being rendered by some unknown elements was not noticed in respect of any other similarly situated employees either in the initial place of posting at Zirikinding PHC in the Karbi Anglong district nor at Kachugaon PHC in the Kokrajhar district.

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 Page No.# 9/10

petitioner had abandoned his engagement.

15. From such point of view, we do not find any infirmity in the impugned order dated 22.07.2014, to warrant an interference by the Court.

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 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 Page No.# 10/10

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.

JUDGE

Comparing Assistant