Gauhati High Court
Prashanna Baishya vs The State Of Assam And 2 Ors on 30 January, 2025
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GAHC010106602024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/286/2024
PRASHANNA BAISHYA
S/O LATE BANTI RAM BAISHYA,
RESIDENT OF VILLAGE MAZIPARA, NEAR L.P SCHOOL. HOUSE NO. 20A,
TRINAYAN PATH, PS BASISTHA, DIST KAMRUP M GUWAHATI 781029,
ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
- REP BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM HEALTH
AND FAMILY WELFARE DEPTT DISPUR GUWAHATI 6 ASSAM
2:PROJECT DIRECTOR
ASSAM STATE AIDS CONTROL SOCIETY AND DIRECTOR CUM MEMBER
SECRETARY ASSAM STATE BLOOD TRANFUSION COUNCIL KHANAPARA
GUWAHATI 22 ASSAM
3:THE SUPERINTENDENT GMCH
GAUHATI MEDICAL COLLEGE AND HOSPITAL BHANAGAGARH
GUWAHATI 5 ASSA
Advocate for the Petitioner : MR. D DAS SR. ADV, MR. K MOHAMMED,MR. INDRAJIT
BHUYAN
Advocate for the Respondent : MS. D BORA, SC, HEALTH DEPTT. (R-1&3), MR P NAYAK (R-2)
Linked Case : I.A.(Civil)/2515/2024
PRASHANNA BAISHYA
S/O LATE BANTI RAM BAISHYA
RESIDENT OF VILLAGE MAZIPARA
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NEAR L.P SCHOOL. HOUSE NO. 20A
TRINAYAN PATH
PS BASISTHA
DIST KAMRUP M GUWAHATI 781029
ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM HEALTH
AND FAMILY WELFARE DEPTT DISPUR GUWAHATI 6 ASSAM
2:PROJECT DIRECTOR
ASSAM STATE AIDS CONTROL SOCIETY AND DIRECTOR CUM MEMBER
SECRETARY ASSAM STATE BLOOD TRANFUSION COUNCIL KHANAPARA
GUWAHATI 22 ASSAM
3:THE SUPERINTENDENT GMCH
GAUHATI MEDICAL COLLEGE AND HOSPITAL BHANAGAGARH
GUWAHATI 5 ASSAM
------------
Advocate for : MR. D DAS SR. ADV
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 2 ORS
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
Date of hearing : 24.01.2025.
Date of Judgment : 30.01.2025.
JUDGMENT & O R D E R (CAV)
(Kaushik Goswami, Judge)
Heard Mr. D. Das, learned Senior Counsel assisted by Mr. K. Mohammed,
learned counsel for the petitioner/appellant. Also heard Mr. P. Nayak, learned
Standing Counsel, Assam State AIDS Control Society, for the respondent No. 2
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and Ms. D. Borah, learned Standing Counsel, Health Department for
respondent Nos. 1 and 3.
2] This appeal is presented against the Judgment and Order dated
26.04.2024, passed in WP(C) No. 1042 of 2023, by the learned Single Judge
whereby the impugned order of termination of service of the
petitioner/appellant was upheld.
3] The brief facts of the case are as follows:-
The petitioner/appellant was appointed as Laboratory Technician by the
Project Director, Assam State AIDS Control Society ( hereinafter called as "the
Society") on 16.09.2005 for a period of 6 months, which was extended from
time to time. During the course of engagement, the petitioner/appellant was
allowed to work at the Blood Bank attached to the Guwahati Medical College
Hospital (GMCH). In connection to an incident occurring in the counter of the
aforesaid Blood Bank on 11.01.2023, an FIR was lodged in the jurisdictional
Police Station. In connection thereto, the petitioner/appellant was also
arrested and thereafter was released on bail. Pursuant to the said incident, the
service of the petitioner/appellant was terminated by order dated 13.01.2023.
Aggrieved by the aforesaid termination, the petitioner/appellant filed the writ
petition which was dismissed by the learned Single Judge by upholding the
said termination order. Situated thus, the present appeal has been preferred.
4] Mr. D. Das, learned Senior Counsel submits that the impugned
termination order is totally illegal inasmuch as despite the termination being
stigmatic in nature, no show cause notice whatsoever had been issued to the
petitioner/appellant before issuance of such termination. He further submits
that even in the case of contractual employment, it is imperative for the
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employer to follow the principles of natural justice before termination in the
event such termination is stigmatic.
In support of the aforesaid, he relies upon the following decisions:
1) Parshotam Lal Dhingra Vs. Union of India reported in AIR
1958 SC 36.
2)Judgment dated 16.04.2024 of the Hon'ble Supreme Court in
SLP(C) No. 8788-8789 of 2023 in Sandeep Kumar Vs. GB
Pant Institute of Engineering & Technology Ghurdauri &
Others.
3)Judgment dated 01.06.2023 of the Gauhati High Court in
WP(C) No. 1785 of 2022 in Surajit Barman Vs. State of
Assam &7 Others.
4) K. Ragupathi Vs. State of Uttar Pradesh & Others
reported in (2022) 6 SCC 346.
5] Per contra, Mr. P. Nayak, learned Standing Counsel, Assam State AIDS
Control Society for the respondent No. 2 submits that the engagement of the
petitioner/appellant being contractual in nature and the terms of engagement
having provided specific clause for termination, the impugned termination
order is valid and legal and therefore, warrants no interference from this
Court. He further submits that the respondent authority had conducted a
detailed enquiry after which the services of the petitioner/appellant was
terminated and therefore, the impugned judgment and order of the learned
Single Judge upholding the termination of the petitioner/appellant warrants no
interference from this Appellate Court. In support of the aforesaid submission,
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he relies upon the following decisions:-
1)Rajasthan State Roadways Transport Corporation Vs.
Paramjeet Singh reported in (2019) 6 SCC 250.
2) State Bank of India & Others Vs. S.N. Goyal reported in
(2008) 8 SCC 92.
6] We have given our prudent consideration to the arguments advanced by
the learned counsels appearing for the contesting parties and have perused
the materials available in the record. We have also considered the case laws
cited at the bar.
7] At the outset, apt to refer to the latest Agreement dated 02.04.2022,
whereby the service of the petitioner/appellant as Laboratory Technician under
the Society in question was extended which is reproduced hereunder for ready
reference:-
"TERMS OF CONTRACTUAL APPOINTMENT OF LABORATORY TECHNICIAN
(BLOOD BANK), UNDER ASSAM STATE AIDS CONTROL SOCIETY
Articles of Agreement made on this 2 ndDay of April, 2022 between Sri/Smt
Prashanna Baishya, Assam hereafter called the party, of the one part and Assam
State AIDS Control Society, Khanapara, Guwahati hereinafter called the Society of
the other part.
AND WHEREAS the Society has engaged the party as Laboratory Technician, under
Assam State AIDS Control Society.
NOW THESE PRESENT WITNESS AND THE Parties hereto respectively agrees as
follows:
1. The party of the first part shall remain in the service of the Society as Laboratory
Technician for a period w.e.f 02/04/2022 to 31/03/2023 (Hereinafter called
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'contractual period') subject to the provisions herein contained.
2. The party has agreed to perform duties as per the job description set out in
Appendix-I hereto, which shall constitute an integral part of this Agreement.
3. During the period of contract, while functioning as Laboratory Technician the
party will be entitled to the compensation package as set out in the Appendix - II
hereto, which shall constitute an integral part of this Agreement.
4. The appointment of the party is purely on a contract basis and the party would not
be entitled to any claims, right, interests or further benefits in terms of regularization
or consideration of further appointment to the said post or any other post under the
Society.
5. The services of the party shall stand automatically terminated at the expiry of
contract period, without any necessity of the Society giving any notice or notice pay
to the party and without any liability on the part of the Society to pay any
retrenchment or other compensation or other amounts to the party.
6. Notwithstanding anything contained herein above, the services of the party may be
terminated at any time by the Society if the party is found to be guilty of
insubordination, intemperance or other misconduct or of any breach or non
performance.
7. 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. But the parties may, in lieu of the written notice, give the other party a
sum equivalent to the amount of his/her salary for one month or shorter notice than
one month with a sum equivalent to the amount of his/her remuneration for the
period of which such notice falls short of 1(one) month.
8. The tribunals and courts in Guwahati will have the exclusive jurisdiction in
respect of all matters pertaining to contractual agreement between the Society and
the party.
In witness thereof, the party and the authorized signatory of the Society have herein
under set their hands the day and year first above written."
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8] Perusal of the aforesaid agreement of appointment of the petitioner/
appellant, it appears that the same was contractual and was for a period w.e.f.
02.04.2022 to 31.03.2023. It further appears that as per the terms of
appointment under Clause 6, it was agreed that the services of the
petitioner/appellant was liable to be terminated at any time by the Society, if
the petitioner/appellant was found to be guilty of any insubordination,
intemperance or other misconduct, or of any breach or non-performance. It
further appears that under Clause 7 of the said Agreement, either of the
parties thereto had the right to terminate the Agreement without assigning
any reasons by providing a written notice of one month or, in lieu, give the
other party a sum equivalent to the amount of one month salary or shorter
notice than one month with a sum equivalent to the amount of remuneration
falling short.
9] It appears that during the contractual service period, the service of the
petitioner/appellant was terminated by order dated 13.01.2023 i.e. about two
and half months prior to the expiry period of the contractual appointment due
to malpractice in the Blood Bank of GMCH, Guwahati where the
petitioner/appellant was working at that relevant time.
10] The issue falling for determination in this appeal is whether the services
of the petitioner/appellant can be terminated before the expiry of the
contractual period due to allegations of malpractices against him, without
giving him an opportunity of hearing.
11] Apt to refer to the impugned termination order dated 13.01.2023, which
is reproduced hereunder for ready reference:-
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"No. ASBTC/Estt/2022/1297/18/ Dated Guwahati the 13/01/2023.
Office Order
In pursuance of the Office Order No. MCH/07/2015/430 dated 11/01/2023, issued by
the Superintendent, Gauhati Medical College & Hospital (GMCH), Guwahati and as
per Clause-6 of the Service Contract Agreement, Mr. Prashanna Baishya, Laboratory
Technician, Blood Bank, GMCH is hereby terminated and released from the
contractual service of ASACS/ASBTC with immediate effect due to malpractice in the
Blood Bank, GMCH, Guwahati.
Project Director Assam State
AIDS Control Society
&
Director-cum-Member Secretary
Assam State Blood Transfusion
Council
Khanapara, Guwahati-22"
12] It is apparent from reading of the impugned termination order that the
services of the petitioner/appellant was terminated before the expiry of the
said contractual period due to malpractices in the Blood Bank in question,
wherein the petitioner/appellant was working at that relevant time. It further
appears that the said termination was not preceded by any opportunity of
hearing. Pertinent that in case of contractual employment, a contractual
employee has a right to be in employment until the stipulated period, subject
to the termination clause. Be it mentioned that termination of employment
before the expiry of the contractual period is as per the terms and conditions
of the contract agreement.
13] In the present case, there is a specific clause in the contract agreement
which provides for termination in the case of misconduct etc. However, the
said clause does not provide the procedure of termination. Though the said
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clause does not expressly provide observance of the principles of natural
justice, such termination being based on misconduct etc, is a punishment and
therefore, the same is detrimental and prejudice to the career prospect of the
contractual employee. Hence, observance of the principles of natural justice is
implicit in the said termination clause. Reference is made to the principle
stated by Justice Byles in Cooper Vs. Wandsworth Board of Works
reported in (1863) 14 C.B.N.S 180, which is reproduced hereunder for
ready reference:
"A long course of decisions, beginning with Dr. Bently's case (1723) 1 Str 557
and ending with some very recent cases, establish that although there are no
positive words in the statute requiring that the party shall be heard, yet the
justice of the common law will supply the omission of the legislature ".
14] Reading of the aforesaid principle, it is apparent that the Courts have
affirmed the principle of procedural fairness, even where the statute
conferring the power to decide was silent on the matter. Keeping in mind the
aforesaid principle, we are of the unhesitant view that even when the subject
termination clause is silent on the principle of natural justice, such
termination, which contains stigma, must be preceded by due observance of
the principles of natural justice.
15] Reference is made to the decision of the Apex Court in Parshotam Lal
Dhingra Vs. Union of India (Supra) wherein the Apex Court has held that
if the services of a contractual employee is terminated before the expiry of the
contractual period on the ground of misconduct etc., then the same is a
punishment and the requirement of Article 311 of the Constitution of India is
required to be complied with. Paragraph 28 of the aforesaid judgment is
reproduced hereunder for ready reference:
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"28. The position may, therefore, be summed up as follows: Any and every termination
of service is not a dismissal, removal or reduction in rank. A termination of service
brought about by the exercise of a contractual right is not per se dismissal or removal,
as has been held by this Court in Satish Chander Anand v. The Union of India (supra).
Likewise the termination of service by compulsory retirement in terms of a specific
rule regulating the conditions of service is not tantamount to the infliction of a
punishment and does not attract Article 311(2), as has also been held by this Court in
Shyam Lal v. The State of Uttar Pradesh (I). In either of the two abovementioned
cases the termination of the service did not carry with it the penal consequences of
loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the
misconduct, negligence, inefficiency or other disqualification may be the motive or the
inducing factor which influences the Government to take action under the terms of the
contract of employment or the specific service rule, nevertheless, if a right exists,
under the contract or the rules, to terminate the service the motive, operating on the
mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of
India (supra), wholly irrelevant. In short, if the termination of service is founded on
the right flowing from contract or the service rules then, prima facie, the termination
is not a punishment and carries with it no evil consequences and so Article 311 is not
attracted. But even if the Government has, by contract or under the rules, the right to
terminate the employment without going through the procedure prescribed for
inflicting the punishment of dismissal or removal or reduction in rank, the
Government may, nevertheless, choose to punish the servant and if the termination of
service is sought to be founded on misconduct, negligence, inefficiency or other
disqualification, then it is a punishment and the requirements of Article 311 must be
complied with. As already stated, if the servant has got a right to continue in the post,
then, unless the contract of employment or the rules provide to the contrary, his
services cannot be terminated otherwise than for misconduct, negligence, inefficiency
or other good and sufficient cause. A termination of the service of such a servant on
such grounds must be a punishment and, therefore, a dismissal or removal
within Article 311, for it operates as a forfeiture of his right and he is visited with the
evil consequences of loss of pay and allowances. It puts an indelible stigma on the
officer affecting his future career. A reduction in rank likewise may be by way of
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punishment or it may be an innocuous thing. If the Government servant has a right to
a particular rank, then the very reduction from that rank will operate as a penalty, for
he will then lose the emoluments and privileges of that rank. If, however, he has no
right to the particular rank, his reduction from an officiating higher rank to his
substantive lower rank will not ordinarily be a punishment. But the mere fact that the
servant has no title to the post or the rank and the Government has, by contract,
express or implied, or under the rules, the right to reduce him to a lower post does not
mean that an order of reduction of a servant to a lower post or rank cannot in any
circumstances be a punishment. The real test for determining whether the reduction in
such cases is or is not by way of punishment is to find out if the order for the reduction
also visits the servant with any penal consequences. Thus if the order entails or
provides for the forfeiture of his pay or allowances or the loss of his seniority in his
substantive rank or, the stoppage or postponement of his future chances of promotion,
then that circumstance may indicate that although in form the Government bad
purported to exercise its right to terminate the employment or to reduce the servant to
a lower rank under the terms of the contract of employment or under the rules, in
truth and reality the Government has terminated the employment as and by way of
penalty. The use of the expression " terminate " or " discharge " is not conclusive. In
spite of the use of such innocuous expressions, the court has to apply the two tests
mentioned above, namely, (1) whether the servant had a right to the post or the rank
or (2) whether he has been visited with evil consequences of the kind hereinbefore
referred to? If the case satisfies either of the two tests then it must be held that the
servant has been punished and the termination of his service must be taken as a
dismissal or removal from service or the reversion to his substantive rank must be
regarded as a reduction in rank and if the requirements of the rules and Article 311,
which give protection to Government servant have not been complied with, the
termination of the service or the reduction in rank must be held to be wrongful and in
violation of the constitutional right of the servant."
16] Reading of the aforesaid judgment, it is apparent that a contractual
employee has a right to continue in the post until expiry of the contractual
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period subject to the termination clause. However, if the termination is by way
of a punishment, observance of the principles of natural justice is a must.
17] In the present case, it is evident that the termination is founded on
misconduct and hence, the same is a punishment. It is also admitted that
neither any show cause notice nor any opportunity whatsoever was given to
the petitioner/appellant before issuance of the impugned termination order.
That being so, such termination order cannot stand in the eye of law.
18] It appears that the learned Single Judge, while upholding the impugned
termination, has taken into account the affidavit-in-opposition filed by the
respondent Society, wherein it is averred that a detailed enquiry had been held
by the GMCH authority in the incident pursuant to which the services of three
of its employees were terminated and since the petitioner/appellant was also
found to be involved, his services was accordingly terminated. The learned
Single Judge was accordingly of the opinion that affording of the opportunity
would be a futile exercise.
19] We are unable to accept the aforesaid findings of the learned Single
Judge, inasmuch as, it is absolutely clear that no inquiry whatsoever had been
conducted as far as the petitioner/appellant is concerned.
20] In view of the above, the impugned termination order dated 13.01.2023
is illegal and vitiated. Accordingly, the impugned termination order dated
13.01.2023 is hereby set aside and quashed. Hence, the writ appeal succeeds.
21] Resultantly, the impugned Judgment and Order dated 26.04.2024 is set
aside.
22] It is clarified that since the contractual period of engagement of the
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petitioner/appellant service has already expired, no order of reinstatement of
the services of the petitioner/appellant can be directed at this stage. However,
having interfered with the impugned termination order, we direct that the
service benefits inclusive of the salary for the remaining period of the
contractual appointment be released to the petitioner/appellant within a
period of two months from receipt of a certified copy of this order.
The writ appeal accordingly stands disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
