Wp(C)/59/2022 vs The State Of Assam And Anr
2022 Latest Caselaw 4487 Gua

                                                             Page No.# 1/8

GAHC010226832021




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

         WP(C)/59/2022
         ABDULLA AL MASUD MOLLAH
         S/O SODRUL ISLAM MOLLAH
         WARD NO. 14
         PROGOTI NAGAR
         DHUBRI
         PO KHALILPUR
         PS AND DIST DHUBRI
         ASSAM 783325


          VERSUS

         THE STATE OF ASSAM AND ANR
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM
         PANCHAYAT AND RURAL DEVELOPMENT DISPUR
         GUWAHATI 06
         DIST KAMRUP M ASSAM

         2:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          PANCHAYAT AND RURAL DEVELOPMENT DISPUR GUWAHATI 06.DIST
         KAMRUP M ASSAM
          3:THE COMMISSIONER
         PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
          GUWAHATI-37
         ASSAM.
          ------------

Advocate for : MR F KHAN Advocate for : SC P AND R.D. appearing for THE STATE OF ASSAM AND ANR Page No.# 2/8

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 16-11-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. F Khan, learned counsel for the petitioner. Also heard Mr. NK Dev Nath, learned counsel for the authorities under the P & RD Department, Government of Assam.

2. The petitioner Abdulla AI Masud Mollah was appointed as an Accredited Engineer on contractual basis under Administrative Control of District Rural Development Agency, Dhubri from 25.11.2013 to 31.03.2014 and was subjected to the terms and conditions of the contractual engagement, where the appointment was made as per the order dated 22.11.2013 of the Project Director, DRDA, Dhubri. The fact remains that although the initial engagement of the petitioner was from 25.11.2013 to 31.03.2014, but the petitioner was allowed to continue in the contractual engagement until the order impugned dated 07.09.2021 was passed by the Commissioner, P & RD Department by which his services were terminated.

3. Being aggrieved by the order of termination dated 07.09.2021, this writ petition is instituted. The impugned order of termination dated 07.09.2021 is extracted as below:

"Whereas it has come to the notice of the undersigned as per report received from the Chief Executive officer, Dhubri Zilla Parishad vide his Page No.# 3/8

letter no. ZPD-107/HCMS/MISC/2020-2021/46, dtd. 01/09/2021, regarding arrest of Shri Abdulla AI Masud Mollah, Accredited Engineer (contractual) Gauripur Development Block, Dhubri in connection with Dhubri PS case No. 1097/2021 US/120/ (B)/406/409/465/468/471/420/511/IPC and is on police custody beyond 48 hours.

In the light of the above Shri Abdulla AI Masud Mollah, Accredited Engineer (Contractual) Gauripur Development Block, Dhubri is hereby terminated from the Contractual Agreement on the ground of breach of trust as per terms and conditions laid down at Para- 9 & 11 of the contract agreement with immediate effect.

Shri Abdulla AI Masud Mollah, Accredited Engineer (Contractual) under Gauripur Development Block, Dhubri is entitled for 1(one) monthly salary/remuneration."

4. A reading of the extracted portion of the impugned order makes it discernible that the petitioner who was on a contractual engagement was arrested in connection with Dhubri P.S. Case No.1097/2021 under Sections 120(B)/406/409/465/468/471/420/511 IPC. Accordingly, by taking note that the petitioner was arrested in connection with Dhubri P.S. Case No.1097/2021, the services of the petitioner from the contractual engagement was terminated and the order of the termination provides that the ground of termination was breach of trust as per the terms and conditions laid down in Clause 9 and 11 of the contract agreement.

5. Clause 9 and Clause 11 of the contract agreement are extracted as below:

"9. Non Disclosure of Information: The contractual staff undertakes not to disclose, divulge or make public, except on legal obligations any information that he/she may acquire in course of his/her work without the written consent of the Agency."

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"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 terms 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 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."

6. Clause 11 provides the employer agency 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 was false or willfully suppressed, or if there was any breach of any of the terms and conditions of the contractual engagement. Apparently, Clause 11 is an enabling provision of the employer agency to terminate a contractual agreement and it cannot be understood to be a breach of trust as per Clause 11. In any view of the mater, Clause 11 requires the satisfaction of three conditions for a termination i.e., performance was not satisfactory or the contractual employee had made any false declaration or willfully suppressed certain facts or further if there was any breach of any terms and conditions of the contractual agreement.

7. On a pointed query being put as to which of the three conditions of Clause 11 had been violated, it is informed to the Court that according to the employer agency, the petitioner had violated the conditions of their being a breach of any Page No.# 5/8

other terms and conditions of the contractual agreement. It is stated that according to the employer agency, the petitioner had breached the terms and conditions as provided in Clause 9 of the terms and conditions of the contractual agreement. Clause 9 provides that the contractual staff shall undertake not to disclose, divulge or make public except on legal obligations any information that he may acquire in course of his work without the written consent of the agency. No material is produced nor any allegation is raised that any information of the employer agency that the petitioner had acquired in course of the engagement have been divulged by him or made public by him without a written consent of the employer agency. As no material is produced that the petitioner had in course of his engagement divulged any information or made it public without a written consent of the employer agency, accordingly, we are of the view that even Clause 9 would be inapplicable in the present case.

8. Mr. NK Dev Nath, learned counsel for the P & RD Department has strenuously argued that the allegations against the petitioner are very serious in nature and therefore, his services were terminated. The learned counsel has also produced the communication dated 20.08.2022 from the Commissioner, P & RD Department wherein a stand is also taken that the initial engagement of the petitioner was from 25.11.2013 up to 31.03.2014, but the petitioner had been providing services to the authorities de facto up to his date of termination. We are unable to accept such contention that there was a de facto contribution of service by the petitioner. Factually, the petitioner was allowed to continue and he continued and he was paid for the work. Further the said reason sought to be provided by the communication dated 20.08.2022 would be a reason beyond the reasons provided in the impugned order of termination dated 07.09.2021 Page No.# 6/8

which again would be impermissible as per the law laid down in Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors ., reported in (1978) 1 SCC 405.

9. But at the same time, we take note of the submission of Mr. NK Dev Nath learned counsel for the Department that the allegations against the petitioner are very serious which warrants him not to remain in the contractual engagement with the respondents. If that is so, the remedy available before the respondents in the P & RD Department would lie elsewhere, rather than seeking to invoke Clause 11 of the terms and conditions.

10. Mr. NK Dev Nath, learned counsel further contends that the other terms and conditions of the contractual agreement that the petitioner may have breached would also be covered by Clause 14 of the terms and conditions of the agreement. Clause 14 provides that the contractual staff undertakes to act and function with professionalism, utmost care, skill, diligence, honesty, good faith and integrity as well as high moral and ethical standards and the contractual staff also undertakes to compensate any loss that may have been caused to the employer. We have taken note of the provisions of Clause 14, but to invoke such provisions there would be a minimum requirement to give one notice to the petitioner affording him to show cause as to why the department feels that there is lack of professionalism, utmost care, skill, diligence, honesty, good faith and integrity as well as high moral and ethical standards.

11. In this respect, it is stated by Mr. NK Dev Nath, learned counsel for the P Page No.# 7/8

& RD Department that the show cause notice dated 20.08.2021 had already been issued to the petitioner and the petitioner had also given his reply to the said show cause notice.

12. But we have noticed that the impugned order of termination dated 07.09.2021 had not been passed in a proceeding pursuant to the show cause notice dated 20.08.2021 and the said order was passed under some different circumstances. The manner in which the impugned order dated 07.09.2021 has been passed cannot be understood to be a reasoned order pursuant to the show cause notice dated 20.08.2021.

13. Service law jurisprudence do recognize the concept of placing an employee under suspension, if he is arrested and in custody in any criminal matter, wherein also the seriousness of the allegations can have its own relevance and further action under the law may also be permissible.

14. Accordingly, we interfere with the order dated 07.02.2021 of the Commissioner, P & R D Department, Assam by which the services of the petitioner was terminated, but grant complete liberty to the respondents in the P & RD Department to act against the petitioner in the appropriate manner under the law as may be advised.

15. As the proceeding initiated by the show cause notice dated 20.08.2021 had not been brought to its logical conclusion, and the authorities had deviated by resorting to the impugned order of termination dated 07.09.2021, the Page No.# 8/8

respondents are also given the liberty to proceed further pursuant to the show cause notice dated 20.08.2021 by bringing the same to its logical end and in doing so, the petitioner may also be given an opportunity of hearing and be allowed to produce any relevant materials that he may desire to produce.

16. Having noticed the seriousness of the allegations against the petitioner, we further provide that as a consequence of interfering with the order of termination dated 07.09.2021, it would be deemed that the petitioner would be under suspension.

17. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant