Sanghamitra Saha vs The State Of Assam And 3 Ors
2025 Latest Caselaw 5615 Gua

Gauhati High Court

Sanghamitra Saha vs The State Of Assam And 3 Ors on 23 June, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                Page No.# 1/27

GAHC010208792024




                                                          undefined

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

                          Case No. : WP(C)/5149/2024

         SANGHAMITRA SAHA
         W/O- DR. PRATOSH PAUL,
         R/O- H.NO-39, H.S ROAD PALTAN BAZAR, REHABARI, DISPUR, KAMRUP
         METRO, ASSAM, PIN-781008



         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-6, GUWAHATI.

         2:THE SECRETARY
         TO THE GOVT. OF ASSAM
          HEALTH AND F.W. DEPARTMENT
          DISPUR-6
          GUWAHATI.

         3:ASSAM CANCER CARE FOUNDATION
          REP. BY THE COO

         REGD. OFFICE AT 3RD FLOOR
         V.K TRADE CENTRE
         G.S ROAD
         OPP DOWNTOWN HOSPITAL
         GUWAHATI-22

         4:TATA TRUST
          REP. BY THE DIRECTOR

         REGD. OFFICE -
         BOMBAY HOUSE
                                                                       Page No.# 2/27

             24
             HOMI MODY STREET
             MUMBAI-40000

Advocate for the Petitioner   : MR. K N CHOUDHURY, MR A R BAROOAH,MR GAURAV R
DUTTA

Advocate for the Respondent : SC, HEALTH, MR. U GOSWAMI(R-4),MR. A SANCHETI (R-
4),MR S SANCHETI(R-4),R C SANCHATI(R-4),G BAISHYA (R-3),MR. B D CHOWDHURY(R-3)




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                      JUDGMENT

Date : 23-06-2025

Heard Mr. KN Choudhury, learned Senior Counsel assisted by Mr. GR Dutta,

learned counsel for the petitioner. Also heard Mr. B Gogoi, learned Additional

Advocate General, Assam for the Health Department, Mr. BD Chowdhury,

learned counsel for the respondent no.3 and Mr. S. Sancheti, learned counsel for

the respondent no.4.

2. The petitioner before this Court is a Medical Doctor by profession. She is a

qualified Radiologist and had also undergone fellowship in Oncoimaging and

Interventions from the Tata Medical Centre, Kolkata.

3. The respondent no. 3, namely, Assam Cancer Care Foundation is a joint

partnership of the Government of the Assam and Tata Trust which was set up in

the month of December, 2017 in a first of its kind venture to provide Cancer Page No.# 3/27

Care in a Three Level Cancer Grid in the State. The respondent No. 4 is the Tata

Trust which is a philanthropic Organization. The respondents No. 1 & 2 are the

Health Department of the Government of Assam.

4. Pursuant to the joint venture partnership of respondents no. 3 and 4

along with the Government of Assam, in order to provide the specific

consultancy and treatment in the Health Care Sector, more particularly, in

Cancer Treatment, the respondent No. 3 appointed several specialist medical

professionals. The petitioner was one such medical professional who was

appointed as a Consultant, Radiologist, Dibrugarh Cancer Centre. Pursuant to

her engagement, a contract agreement dated 04.05.2022 was executed by and

between the respondent No. 3 and the petitioner, whereby the petitioner was

appointed on contract for a period of one year commencing from 01.08.2022 till

22.07.2023 on the terms and conditions mentioned therein. The professional fee

payable to the petitioner during the period is also specified. The contract

agreement inter-alia contained a termination Clause which provided for

termination of the contract by giving 30 (thirty) days notice or by paying one

month's fee in lieu of the notice.

5. The case projected before this Court by the petitioner is that pursuant to

her engagement she continued to render her services in terms of the contract Page No.# 4/27

agreement dated 04.05.2022. At the end of the contract period, her tenure was

extended with effect from 01.08.2023 to 31.07.2024. Towards the end of the

extended tenure, an online meeting on 26.07.2024 was held between the

respondent No. 3 in which the petitioner was given verbal assurance of her

contract renewal along with an increment of 6%. During the meeting, it is

contented on behalf of the petitioner that she informed the respondent

authorities for the first time on 26.07.2024 that she was pregnant. After

completion of her tenure although the petitioner received her salary/pay for the

month of August, 2024, the contract extension letter along with 6% increment

as promised to the petitioner during the online meeting dated 26.07.2024 was

not issued. Subsequently, on 09.09.2024, the respondent No. 3 issued a letter,

whereby the petitioner was informed that the management had decided to exit

the engagement contract and not renew the same because she had demanded

a share of the profits. It is contended on behalf of the petitioner that the

termination of her contract was issued without giving her any opportunity of

hearing as the respondent agency had assured the petitioner of extension

during the online meeting held on 26.07.2024. It is submitted on behalf of the

petitioner that there is no demand for the share of profit as alleged and the

petitioner had only demanded remuneration of the extra work that she was

required to perform which was beyond the scope of the contract. It is submitted Page No.# 5/27

that the termination of the petitioner was stigmatic, inasmuch as, she was

wrongly terminated on the ground that she was demanding profits. It is also

submitted that the real reason for termination of the petitioner was her

pregnancy as the respondents sought to deny the maternity benefits to the

petitioner as per the Maternity Benefit Act, 2017.

6. The respondents have contested the case of the petitioner by filing

affidavits. The respondents dispute the contentions made by the petitioner and

submit that the engagement of the petitioner being on contract basis, the

authorities decided not to extend her services. The respondents in their counter

affidavit state that the averments made in the writ petition are false and

concocted and a complete misrepresentation on the actual facts. It is stated

that during the course of discussion with the petitioner, she had issued threats

to project bad picture before the external medical personnel, so that her

replacement is not found to fill up her position by the respondent No. 3. The

respondents state that an online meeting held on 26.07.2024 was only to

convey the petitioner that they were not inclined to extend the contract. The

further contention of the respondents is that the respondent No. 3 is not an

instrumentality of the State under Article 12 of the Constitution of India and

therefore, the present writ petition is not maintainable. It is further stated that

the contract agreement contains a specific Clause for Arbitration and if the Page No.# 6/27

petitioner has any grievances to be redressed, she has a proper remedy under

the contract executed for raising these disputes by demanding an arbitration.

The learned counsel for the respondents referred to the following Judgments in

support of their contentions:

i) Adi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak

Trust and Others vs. VR Rudani and Others reported in (1989) 2 SCC 691.

ii) Sri Amarjit Barman & Others vs. State of Assam and Others in WA No.5/2022.

iii) Chander Mohan Khanna vs. NCERT reported in (1991) 4 SCC 578.

iv) SBI vs. SN Goyal reported in (2008) 8 SCC 92.

7. The learned Senior counsel for the petitioner, on the other hand, by filing

rejoinder reiterates his submissions made on behalf of the petitioner. It is

further urged before the Court that it is no longer res-integra that alternative

remedy is no bar for invocation of judicial review under Article 226 of the

Constitution of India. The learned Senior counsel for the petitioner further

disputes the contention of the respondents that the writ petition is not

maintainable. Referring to the Articles of Associations enclosed to the pleadings,

the learned Senior counsel for the petitioner submits that the respondent No. 3

is incorporated as a Company under the Companies Act, 2013 and it is a private

limited company within the meaning of Section 2(68) of the Companies Act,

2013 and is limited by Guarantee. The number of members which the company

proposes to register is two but the Board of Directors may from time to time Page No.# 7/27

increase the number of members but not exceeding 200 at any point in time. It

is further submitted that there is a substantial funding by the State of Assam

and the utilization of this fund and the services are closely scrutinized by the

Department of Health, Government of Assam. The service rendered by the

Society/the Company has far reaching effect as it offers diagnosis and treatment

in the entire North-eastern Region and in cancer care which perhaps has been

offered by the Society because of the failure of the State Health Department to

do so. It is submitted that the total project cost for setting up the

society/company is Rs. 1,910 Crore out of which this Government of Assam had

invested an amount of Rs. 1080 Crore and the respondent No. 4 has invested an

amount of Rs. 830 Crore. Therefore, the Government of Assam being a majority

investor, its role is not limited to that of gap funding as stated by the society.

The list of members of the Directors, which are available in the portal in the

Ministry of Corporate Affairs, reveals several Government functionaries including

the Chief Minister and Health Minister of the State as Members. Under such

circumstances, it is clear that the society/the company is an instrumentality of

the State and is amenable to writ jurisdiction under Article 12 of the Constitution

of India. In support of his contentions, the learned Senior counsel for the

petitioner has relied upon the following Judgments:

1. Pradip Kumar Biswas vs. Indian Institue of Chemical Biology and Others reported in Page No.# 8/27

(2002) 5 SCC 111

2. Chander Mohan Khanna vs. National Council Of Educatonal Research and Training and Others reported in (1991) 4 SCC 578

3. Gridco Limited and Another vs. Sadananda Doloi and Others reported in (2011) 15 SCC 16

4. Union of India and Others vs. Tantia Construction Pvt Ltd.

reported in (2011) 5 SCC 697.

8. The learned counsel for the parties have been heard. Pleadings available

on record have been carefully perused along with the Judgments cited above.

9. The issues which fall for determination before this Court can be classified

under three heads, namely:

(i) Whether the appointment of petitioner is contractual and the termination

thereof is vitiated and/or is in conflict of the provisions of the contract and

whether such Order of termination issued by the respondent no.3 is amenable

to judicial review under Article 226 of the Constitution of India?

(ii) Whether judicial review under Article 226 is barred in view of the existence

of an alternative remedy available to the petitioner?

(iii) Whether the respondents no. 3 is an instrumentality of the State and

whether writ is maintainable against actions of the respondent no.3?

10. In order to decide the issue no.1, it is necessary to refer to the

appointment letter dated 04.05.2022 issued to the petitioner as well as the

agreement executed by and between the petitioner and the respondent on.3. By Page No.# 9/27

the said communication no.ACCF/HR/APPO/22-23/CONS0160 dated 04.05.2022,

the petitioner was appointed as a consultant radiologist at Dibrugarh Cancer

Centre on contract with the respondent no.3 for a period of 1 (one) year

commencing from 01.08.2022 till 31.07.2023 on the terms and conditions

mentioned therein. The terms and conditions of the agreement executed clearly

specifies that the appointment is contractual and that the engagement would be

for the period 01.08.2022 till 31.07.2023 and which shall be reviewed at the end

of the period of contract. The agreement also contains 4 (four)

Annexure/enclosures. Annexure/Enclosure-IV lays down the roles and

responsibilities of the petitioner. The terms and conditions also specified the

payment schedule and further, that the petitioner would be entitled to 30

(thirty) days of leave in a year. Clause-9 of the Contract provides for Termination

of the Contract. Clause-9 reads as under:

9. Termination of Contract:

9.1. ACCF shall be entitled to terminate this contract at any time by giving you

30 days' notice or by paying one month's fees in lieu of notice.

9.2. You shall be entitled to seek termination of Contract at any time by giving

30 days' notice or by paying one month's fees in lieu of notice.

9.3. In case ACCF terminates this contract for any misconduct found on your

part during the contractual period, the termination shall be with immediate effect Page No.# 10/27

and you shall not be entitled to any compensation.

11. Clause 11 of the Contract provides for arbitration. Clause -11 reads as

under:

11. Arbitration

In the event of any dispute or difference arising between you and ACCF, it shall be referred

to Arbitration under the provisions of the Arbitration and Conciliation Act, 1996. The

Arbitration proceedings shall be held in Guwahati. The language of the Arbitration shall be

English. The Courts in Assam along shall have jurisdiction in the matter

12. The petitioner after the initial period of contract was given an

extension by Ref No.ACCF/HR/APPO/23-24/CONS 0160 dated 04.08.2023. Her

engagement or employment was extended upto 31.07.2024 and the

professional fee also stood revised at Rs.50,88,000/- (Rupees Fifty Lakhs Eighty

Eight Thousand Only) per annum effective from 01.08.2023. The e-mail

forwarded by the petitioner to the respondent authorities on (22/08/2024 and

23/08/2024) 20.09.2024 reveals that the petitioner requested for some revision

of pay scale and special bonus/incentives for doing proceedings for free.

Subsequently, email sent on the same day also shows that the petitioner had

requested for procedural charges specifying the charge for each procedure and

which are to be treated as extra remuneration. The respondent authority by

communication dated 09.09.2024 rejected the request made by the petitioner Page No.# 11/27

for profit sharing of the procedures as profit sharing is not available for full time

consultants of the Society. By the said letter, the petitioner was intimated that

the Management decided to exit the engagement contract with the petitioner

and not renew the same. It is this communication dated 09.09.2024 which is

presently impugned in the present writ petition. Pursuant to the communication

dated 09.09.2024 the petitioner replied to the authorities on 16.09.2024

disputing the statements in the email of the respondent no.3. Similar other

communications were addressed to the authorities but her request for extension

of the contract was not renewed. Being aggrieved, the present writ petition is

filed. It is not in dispute that the petitioner did not invoke the arbitration Clause

as per the contract agreement executed on 04.05.2022.

13. At this stage the judgment relied upon by the parties before the

Court may be referred to. In Pradip Kumar Biswas (supra) a Constitution Bench

of 7 (seven) Hon'ble Judges of the Apex Court had considered the correctness

of the judgment rendered by the Apex Court earlier in Sabhajit Tewary vs.

Union of India reported in (1975) 1 SCC 485. The Constitution Bench of 7

(seven) Hon'ble Judges of the Apex Court after detailed re-examination of the

matter by a majority view overruled the findings of the Apex Court's judgment

rendered in Sabhajit Tewary (supra). In Sabhajit Tewary (supra) the contention

of the employee before the Apex Court was that Council of Scientific and Page No.# 12/27

Industrial Research (CSIR) is an agency of the Central Government on the basis

of the CSIR Rules and the Apex Court rejected the contention that the CSIR is a

State under Article 12 of the Constitution of India as the Government controls

the functioning of the CSIR in all aspects. Although the Apex Court noted that

the Central Government was taking special care, nevertheless the writ petition

filed by Sabhajit Tewary was dismissed by the Apex Court on the following 2

(two) premises :

(i) The society does not have a statutory character like the Oil and Natural Gas Commission

or the Life Insurance Corporation or Industrial Finance Corporation. It is a Society

incorporated in accordance with the provisions of the Society's Registration Act" and

(ii) This Court has held in Praga Tools Corpn. Vs. CA Imanual 5, Heavy Engg Mazdoor Union

vs. State of Bihar8 and in SL Agarwal (Dr) vs. G.M. Hindustan Steel Ltd. 9 that the Praga Tools

Corporation, Heavy Engineering Mazdoor Union and Hindustan Steel Ltd. are all companied

incorporated under the Companies Act and the employees of these companies do not enjoy

the protection available to government servants as contemplated in Article 311. The

companies were held in these cases to have independent existence of the Government and

by the law relating to corporations. These could not be held to be departments of the

Government.

14. In Pradeep Kumar Biswas (supra) by examining the various earlier

authorities and precedents laid down by the Apex Court, it was held that it does

not really matter what guise the State adopts for the purpose, whether by a Page No.# 13/27

corporation established by statue or incorporated under a law such as the

Companies Act or formed under the Societies Registration Act, 1860. Neither the

form of the corporation, nor its ostensible autonomy would take away from its

character as "State" and its constitutional accountability under Part-III vis-à-vis

the individual if it were in fact acting as an instrumentality or agency of the

Government.

15. The Apex Court held that the genesis of the corporation is

immaterial and finally the Apex Court held that the tests formulated in Ajay

Hasia vs. Khalid Mujib Sehravardi reported in (1981) 1 SCC 722 are not a rigid

set of principles so that if a body falls within any one of them it must, ex

hypothesi, be considered to be a State within the meaning of Article 12 of the

Constitution of India. The question in each case would be whether in the light of

cumulative facts as established, the body is financially, functionally and

administratively dominated by or under the control of the Government. Such

control must be particular to the body in question and must be pervasive. If this

is found then the body is a State within the Article 12 of the Constitution of

India. On the other hand, when the control is merely regulatory whether under

statue or otherwise it would not serve to make body a State. Accordingly, the

judgment of Sabhajit Tewary (supra) was overruled.

Page No.# 14/27

16. In Chander Mohan Khanna (supra), the Apex Court was deciding an

issue whether the NCERT which is a society registered under the Societies

Registration Act, 1860 would be included within the State. On the facts of the

case, the Apex Court held that the NCERT is not a State with the definition of

Article 12. The Apex Court held that the Government Control over NCERT is

confined only to it proper utilisation of grants. The NCERT is thus largely an

autonomous body and does not fall within the definition of the State.

17. In Gridco Limited and Another (supra), the Apex Court had decided an

issue which is largely similar to the facts of the present case. In that case the

questions before the Apex Court were :

1. What was the true nature of the appointment of the respondent?

In particular, was the appointment regular or simply contractual in nature? and

2. If the appointment was contractual, was the termination thereof vitiated by any legal infirmity to call for interference under Article 226 of the Constitution.

18. The Apex Court upon consideration of the first question came to the

conclusion that the appointment of the respondents therein was not a regular

appointment and the same was an employment on contract as per the

appointment order itself. The Apex Court held that the fact that the Corporation

extended the tenure of the respondents therein was clearly suggestive that the Page No.# 15/27

parties had understood the appointment was a tenure appointment, extendable

under the discretion of the Board of directors and consequently, came to the

conclusion that the nature of appointment made by the appellant Corporation

was contractual and not regular.

19. In respect of the second question before the Apex Court it was held

that the judicial review of matters that fall in the realm of contracts is also

available before the Superior Courts, but the scope of any such review is not all

pervasive. It does not extend to the Court substituting its own view for that

taken by the decision making authority. Judicial review and resultant

interference is permissible where the action of the authority is malafide

arbitrary, irrational, disproportionate or unreasonable. Judicial Review is not

permissible, if the petitioner's challenge is based only on the ground that the

view taken by the authority may be less reasonable than what is a possible

alternative. The Apex Court, however, held that the fact that the dispute fell

within the domain of the contractual obligations did not relieve the State of its

obligation to comply with its basic requirement under Article 14 of the

Constitution of India.

20. In Uttar Pradesh Power transmission Corporation Limited and

Another (supra) the question before the Apex Court was whether the judicial Page No.# 16/27

review before the Superior Court, if permissible, where alternative remedy is

available to the aggrieved party. The Apex Court held that alternative remedy is

not a bar for judicial review in the following circumstances:

(i) Where the writ petition seeks enforcement of a fundamental right;

(ii) Where there is failure of principles of natural justice or

(iii) Where the impugned orders or proceedings are wholly without jurisdiction or

(iv) The vires of an Act is under challenge.

21. Tantia Construction Private Limited (supra) has been pressed into

service by the learned Senior Counsel for the petitioner is support of its

contention that the judicial review is permissible notwithstanding the alternative

remedy available to the aggrieved party including the Arbitration Clause in the

agreement. The Apex Court in the said matter declined to interfere with the

orders passed by the High Court holding that the variation as specified in the

contract therein will not amount to substantial variation so as to result in

novation of the contract. Before the Apex Court it was urged that the High Court

ought not to have exercised its writ jurisdiction in view of the presence of the

Arbitration Clause. The Apex Court turned down the contention of the Union of

India and declined to interfere with the findings arrived at by the High Court on

the facts of that case and it was held by the Apex Court that presence of an Page No.# 17/27

Arbitration Clause which is an alternative remedy prescribed will not be a bar to

invoke the writ jurisdiction, if the facts necessitated the invocation of the writ

jurisdiction .

22. Learned counsel for the respondent no.3, on the other hand, relied

on the judgments of the Apex Court rendered in Adi Mukta Sadguru Shree

Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust (supra),

wherein the Apex Court has held that the writ jurisdiction cannot be used or

specific performance of the contractual service or for declaration for

continuation of service. In paragraph nos. 17 & 20 of the said judgment the

Apex Court held as under:

"17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean everybody which is created by statute--and whose powers and duties are defined by statue. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs.

......

20. The term "authority" used in Article 226, in the con- text, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforce- ment of the fundamental rights as well as nonfundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation .owed by the person or authority to the Page No.# 18/27

affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied."

23. The judgments rendered by the Division Bench of this Court in Writ

Appeal no.5/2025 and Writ Appeal No.168/2019 dismissed the writ appeals filed

by the appellants who were employed under the Assam State Cooperative Union

which is a registered Co-operative Union seeking a direction to the State

Government for payment of their monthly salary and other emoluments and to

continue to provide the grants-in-aid. The Division Bench upheld the orders

passed by Single Bench by rejecting and dismissing the appeal.

24. Upon a careful perusal of the judgments discussed above it is

evident that the law regarding the instrumentality of the State has undergone a

sea change. The earlier judgments had considered that determine whether a

body falls within the definition of the 'State' under Article 12 in terms of the law

laid down in Ramana Dayaram Shetty vs. The International Airport Authority of

India reported in (1979) 3 SCC 489 and subsequently, followed in Ajay Hasia

(supra) the conditions specified therein must be satisfied. In Ajay Hasia (supra)

the Apex Court after referring to earlier precedents of the Apex Court, had

summarised the tests laid down in the case of International Airport Authority

(supra). These tests summarised in Ajay Hasia (supra) are extracted as under:

(1) "One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency Page No.# 19/27

of Government."

(2) "Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character."

(3) "It may also be a relevant factor.......whether the corporation enjoys monopoly status which is the State conferred or State protected."

(4) "Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."

(5) "If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government."

(6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government."

25. Further, in the subsequent judgments of the Apex Court and which

have been elaborately considered and explained in Pradeep Kumar Biswas

(supra) it is evident that the tests formulated in Ajay Hasia (supra) are not to be

treated as a rigid set of principles, so as to hold that if a body satisfies any one

of them, it must necessarily be considered a 'State' within the meaning of Article

12 of the Constitution of India. The question, whether a body is considered to

be a State within the meaning of the Article 12 of the Constitution of India is

required to be considered in the light of the facts involved in each case. The

body must be financially, functionally and administratively dominated by or

under the control of the Government. Such control must be particular to the

body in question and must be pervasive. It is only then the body is a State

within the Article 12 of the Constitution of India where the control is merely Page No.# 20/27

regulatory whether under the Statute or otherwise, it would not serve to make

the body a State.

26. To decide the question whether the respondent no.3 is a State under

the Article 12 of the Constitution of India, this Court will necessarily require the

facts to be considered to determine the true nature of grievance of the writ

petitioner for invocation of the writ jurisdiction under Article 226 of the

Constitution of India.

27. In the facts of the present case, there is no dispute that the

petitioner was appointed by the respondent no.3 on contractual basis as a

consultant radiologist. This is evident from the appointment letter enclosed to

the writ petition as Annexure-A issued by the respondent authorities by the

communication dated 04.05.2022. The appointment letter, inter alia, clearly

specifies the duration of the contract which is for a period of 1 (one) year

commencing from 01.08.2022 to 31.07.2023 and which is to be reviewed at the

end of the period of contract. Clause-9 provides for termination of contract and

the procedure required to be followed in that case. The appointment letter also

inter alia describes the roles and responsibilities to be performed by the

petitioner which is enclosed as Annexure-IV to the appointment letter.

Annexure-5 of the appointment letter includes an undertaking by the petitioner Page No.# 21/27

not to engage in any form of private practice, solicit, seek, engage or be

interested or concerned either directly or indirectly alone or jointly with any

other trade, business or occupation during the tenure of service. It has also

provided that the petitioner will not claim any additional cost of the services

rendered. The tenure of the employment of the petitioner stood further

extended by communication No. dated 04.08.2023. The employment stood

extended from 01.08.2023 till 31.07.2024.

28. As such, from these documents enclosed to the writ petition itself it

is evident that the employment of the writ petitioner is an employment on a

contractual basis and the same was extended after the completion of the initial

period of service. These documents, under no circumstances, can be construed

to suggest that the petitioner's employment was regular and not contractual.

The claims of the petitioner that she was employed as Consultant Radiologist

but had also performed additional duties as an Interventional Radiologist raises

the question of whether she was medically qualified to function as

Interventional Radiologist. However, such facts are not before this Court and

therefore, this Court is not required to decide on the issue as to whether the

services rendered by the petitioner as an Interventional Radiologist can also be

treated to be professional services rendered over and above the terms of the

contract executed by and between the petitioner and the respondent no.3 on Page No.# 22/27

04.05.2022.

29. The contention of the petitioner that the termination was made

effective without giving any notice to the petitioner also cannot be accepted to

be a ground to invoke the writ jurisdiction, inasmuch as, there is no dispute that

the petitioner had accepted the terms of the contract. It is not brought to the

notice of this Court that any provision of the contract stipulates a requirement of

prior notice in cases of termination. The termination is to be effective as

specified in Clause-9 of the agreement which provides for termination by giving

30 (thirty) days' notice or by paying one month's fee in lieu of notice. It is not

disputed by the petitioner that her contract period expired on 21.07.2024 and

that, she had received her salary or pay for the month of August, 2024 also.

Therefore, it has to be accepted that the respondent no.3 has complied with the

provisions of Clause-9.1. That apart, there have been several exchanges of

emails and communications by and between the petitioner and the respondents

authorities. Subsequent communication of the petitioner requesting for her

extension of service appears to have not been answered to by the respondent

authorities. That apart, there was a video conferencing with the petitioner and

the respondent authorities on 09.09.2024 prior to issuance of the impugned

order of termination dated 09.09.2024. The averments made in the writ petition

raise the grievance of the writ petitioner that her benefits under the Maternity Page No.# 23/27

Benefits Act, 1961 was denied to her and that the termination of the writ

petitioner was only on the ground of her pregnancy with the sole motive to

deny her the benefits under the Maternity Benefits Act, 1961. However, during

the course of arguments, no specific reference has been made to the provisions

of the Maternity Benefits Act, 1961 and/or any claims made by the petitioner

before the Authorities to the extent that the claims made thereunder, if any,

have been denied to the petitioner. During the arguments the relevant

provisions of the Maternity Benefits Act, 1961 were not referred to by the

petitioner and therefore, it must be accepted that this claim is not seriously

urged by the petitioner before the Court. It is well established that writ

jurisdiction is to be invoked only to examine the decision making process and

not the decision itself. While exercising its powers of judicial review, the Court

will not substitute its own view for the view taken by the decision making

authority. Judicial review and the resultant interference is only permissible when

the decision making process by the concerned authority has been found to be

malafide, arbitrary, irrational, disproportionate or unreasonable.

30. As have been discussed herein above, the sole ground is before the

Court is non-issuance of prior notice to the petitioner before the issuance of

termination letter by the respondent authority. However, the contract agreement

which was wilfully entered into by and between the petitioner and the Page No.# 24/27

respondent no.3 does not contain any specific Clause for issuance prior notice

before termination of the agreement. The Clause-9.1 of the agreement letter

dated 04.05.2022 provides for payment of one month's salary in lieu of any

notice. The petitioner's extension having been completed on 31.07.2024 and it

is admitted by the petitioner that she had received the pay for the month of

August, 2024, the requirement under Clause 9.1 appears to have been satisfied

by the respondent authority. No malafide has been alleged against any Officer.

Malice in law, in the facts and circumstances as discussed above, is also not

made out. The decision by the authority to terminate the petitioner being a

consequence of the terms of the contract does not appear to the Court to be

malafide, arbitrary, irrational, disproportionate or unreasonable.

31. Under such circumstances, on the facts pleaded before the Court

and the materials available before the Court does not inspire the Court to

invoke its power of judicial review to interfere with the impugned order of

termination dated 09.09.2024.

32. In any view of the matter, in principle the power of judicial review

under Article 226 of the Constitution of India would be available in matters of

breach of contract also where public law element is involved. However, as have

been discussed above in the facts of the case, there is no dispute on facts that Page No.# 25/27

the petitioner's employment was contractual and termination and/or the non-

extension of the contract was carried out by the respondents authorities in

terms of Clause 9 of the contract. The only ground urged before this Court is

non-issuance of notice prior to termination even though there is no specific

requirement for issuance of notice prior to termination. In the facts of the

present matter even assuming that pre decisional notice is required to be issued

to the petitioner, such notice would not have made any difference to the facts

which are discussed above and from the communications exchanged by and

between the petitioners and the respondents no.3 and from the terms of the

contract, subsequent extension given to the petitioner, it is clear that the

petitioner was on contractual service for a period of 1 year extendable by the

respondent no.3. It cannot be accepted to understand that the extension in

terms of the contract is mandatorily required to be given. It is a decision to be

taken on the respondent no.3, which, however, has to be invoked on the

attending facts and circumstances of each case. In the facts of the present case

non issuance of pre-decisional notice did not cause any prejudice to the

petitioner in the opinion of the Court as the terms and conditions governing the

employment of the petitioner as is evident from the contract agreement

executed and are not disputed by the petitioner.

33. Under such circumstances, no prejudice is found to have been Page No.# 26/27

caused to the petitioner. Non compliance of the principal of natural justice

unless it causes prejudice does not automatically entitle one to a relief under

Article 226 of the Constitution of India in all circumstances. Natural justice is a

flexible tool in the hands of a judiciary to reach out in appropriate cases to

remedy injustice. Every breach of audi alteram partem rule cannot by itself lead

to a conclusion that prejudice is thereby caused.

34. As a natural consequence, where the Court is not inclined to invoke

its power of judicial review on the facts as discussed above, the question of

whether the respondent no.3 is a State under Article 12 of the Constitution of

India and whether a writ is maintainable against the respondent no.3 or

respondent no.4 or the Society, would be purely an academic endeavour as the

Court has already come to a conclusion on the pleadings, materials and

arguments made before the Court that in the facts of the circumstances of the

case, invocation of judicial review is not found necessary. The question,

therefore, is not required to be decided in the present proceedings and is left

open to be decided in any appropriate proceedings. Finally, the question of the

availability of judicial review in the face of an alternative remedy does not

require any further discussion, inasmuch as the law laid down by the Apex Court

in a catena of judgments has made it clear that the existence of an alternative

remedy is not a bar for invocation of the writ jurisdiction. Therefore, while this Page No.# 27/27

Court has accepted the contention of the petitioner that the presence of

alternative remedy is no bar for invocation of judicial review under Article 226 of

the Constitution of India, in the facts and circumstances of the present case and

in view of the foregoing discussions since the Court has already come to a

conclusion that the facts of the present proceedings do not warrant invocation

of judicial review, no further discussion is called for on this aspect also. The writ

petition therefore, being devoid of any merit, the same is dismissed. No order as

to cost.

35. It is, however, made clear that the dismissal of the writ petition shall

not foreclose the claims of the petitioner, if any, for invoking the Arbitration

Clause as is provided under Clause-11 of the Agreement dated 04.05.2022. In

the event the petitioner seeks to invoke the Arbitration Clause, the period during

which the matter was pending before the Court shall be excluded while

computing the limitation period, if any.

JUDGE

Comparing Assistant