Golam Mostafa Mollah vs The Union Of India
2025 Latest Caselaw 4213 Gua

Gauhati High Court

Golam Mostafa Mollah vs The Union Of India on 19 March, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

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GAHC010020542018




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

                           Case No. : WP(C)/603/2018

         GOLAM MOSTAFA MOLLAH
         S/O- ALIM UDDIN MOLLAH, VILL- JALESWAR BIL, P.O- JALESWAR, P.S-
         LAKHIPUR, DIST- GOALPARA, ASSAM, PIN- 783132


         VERSUS


         THE UNION OF INDIA
         REP. BY THE MIN OF HEALTH AND FAMILY WELFARE AFFAIRS, GOVT OF
         INDIA, NEW DELHI-1

         2:THE STATE OF ASSAM
          REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
          HEALTH AND FAMILY WELFARE DEPTT.
          DISPUR
          GHY- 6

         3:THE NATIONAL HEALTH MISSION(NHM)
          REP. BY THE MISSION DIRECTOR
          KHANAPARA
          GHY- 22

         4:THE DEPUTY COMMISSIONER CUM CHAIRMAN
          DISTRICT HEALTH SOCIETY
          GOALPARA DISTRICT
          GOALPARA
         ASSAM
          PIN- 783101

         5:THE JOINT DIRECTOR CUM MEMBER SECRETARY
          DISTRICT HEALTH SOCIETY
          GOALPARA DISTRICT
          GOALPARA
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            ASSAM
            PIN- 78310




                                          BEFORE

                Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI


Advocate for the petitioner        : Shri R. Islam, Advocate


Advocate for the respondents       :Ms. A. Borah, SC, NHM,

Date of hearing               : 05.03.2025


Date of judgment              : 19.03.2025


                                    JUDGMENT & ORDER

The present petition under Article 226 of the Constitution of India has been filed against an order dated 14.12.2017, whereby the services of the petitioner has been terminated as a Rural Health Practitioner. It is the case of the petitioner that such termination was done without any opportunity of hearing and without holding any inquiry.

2. The facts projected are that the petitioner who had completed his Diploma in Medicine & Rural Health Care Course was selected to be engaged as a Rural Health Practitioner (RHP) on 17.08.2011 on the basis of his merit. Such selection was made by the erstwhile NRHM which is presently the NHM. The petitioner was accordingly posted on contractual basis in the Ketkibari Sub-Centre under Agia BPHC, Goalpara District. The order of engagement was accordingly issued Page No.# 3/7

on 19.08.2011 in the aforesaid post of RHP. The said post has been subsequently designated as Community Health Officer. Though the initial engagement was on contractual basis for a period of 6 months from the date of joining, the same was extended from time to time and the scheme has been continuing till date. It is the case of the petitioner that on the ground that he was implicated in a police case, namely, Goalpara P.S. Case No. 322/2017, the petitioner was terminated from service vide the impugned order dated 14.12.2017. A complaint was also filed before the State Consumer Commission.

3. It is the legality and validity of the order dated 14.12.2017 which have been questioned in this writ petition.

4. I have heard Shri R. Islam, learned counsel for the petitioner. I have also heard Ms. A. Borah, learned Standing Counsel, NHM.

5. Shri Islam, the learned counsel for the petitioner has submitted that the impugned order has mentioned Clause-9 of the Contract which does not contemplate regarding any such power. He, however, has fairly submitted that there is Clause -6 as per which the contractual service can be terminated, which, however requires a consultation with the Chairman and Member Secretary of the Society. It is submitted that there is no such consultation with the Chairman and the Member Secretary of the Society. He has also submitted that he was wrongly implicated in the Goalpara PS Case No. 322/2017 as there was no fault of his. The Ejahar itself was lodged on a wrong presumption in which, after investigation, the police has laid the Final Report. He has also referred to the affidavit-in-reply filed on 03.03.2025 and has submitted that the said Final Report has been accepted recently by the Court of the learned CJM, Goalpara on 27.02.2025 and has in fact annexed the copy of the said order in the said affidavit. He has also submitted that the Consumer Case being CC Page No.# 4/7

6/2018 which was filed by the complainant against the petitioner alleging medical negligence was dismissed on withdrawal vide order dated 27.09.2024.

6. The learned counsel for the petitioner has also informed this Court that while the writ petition was moved, an order dated 07.02.2018 was passed by this Court protecting the services of the petitioner by staying the impugned order of termination. The said interim order dated 07.02.2018 has been extended from time to time and the petitioner is continuing in his service. He accordingly submits that under the aforesaid facts and circumstances, the impugned order of termination is liable to be interfered with.

7. Ms. A. Borah, learned Standing Counsel, NHM has however defended the impugned order of termination. She has refuted the allegation that no inquiry was held before issuing the termination order and has submitted that in fact, a Show Cause Notice was indeed issued. In this regard, she has referred to the relevant pleadings made in paragraph 9 of the affidavit-in-opposition filed by the respondent no.5 on 22.07.2022. She has also submitted that a Committee was constituted who had done an inquiry and a report was submitted by the said Committee on 23.10.2017 wherein the grounds and the reasons were cited. She has submitted that there were cogent reasons for passing the impugned order and accordingly the same is not liable to be interfered with.

8. In his rejoinder, Shri Islam, the learned counsel for the petitioner, by reiterating the aspect of culmination of the police case in the form of Final Report which has been accepted by the Court on 27.02.2025 has submitted that the very basis of the termination order which is the lodging of the police case being not there, the impugned order of termination cannot stand. He has also placed reliance upon the case of Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors.

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reported in AIR 1999 SC 983 as well as the case of Dharmeswar Baishya vs. State of Assam & Ors. reported in 2004 (2) GLT 253. In the case of Dipti Prakash Banerjee (supra), the Hon'ble Supreme Court was dealing with a case of termination of a probationer and the aspect as to whether the allegations involved would constitute a termination simpliciter or a punitive action has been discussed.

9. In the case of Dharmeswar Baishya (supra), this Court has held that even in case of contractual appointment, the principles of natural justice cannot be excluded when such order of termination is stigmatic in nature.

10. The rival submissions have been duly considered and the materials placed before this Court has been carefully examined.

11. It is not in dispute that the petitioner was appointed as a Community Health Officer in the year 2011 and till the impugned order of termination dated 14.12.2017 was issued, he was in service without any blemish. The impugned order of termination was triggered by lodging of an Ejahar leading to registration of Goalpara PS Case No. 322/2017. The allegations which reveal from the records and materials at hand are with regard to certain medical negligence of the petitioner in another private hospital. The petitioner has explained that he had gone to the private hospital to visit one of his relative and out of exigency and emergency, he had to offer his services to a particular patient and also referred the same patient to the Guwahati Medical College and Hospital. However, the police case was lodged alleging medical negligence and the Consumer Case was also filed. The aspect of culmination of the aforesaid police case in a Final Report which has also been accepted by the learned CJM Goalpara vide order dated 27.02.2025 has already been noted above. The consumer complaint has also been withdrawn on 27.09.2024.

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12. The termination order, no doubt mentions Clause-9 which appears to be an inadvertent error as the relevant Clause is Clause-6. Though the petitioner had tried to make out a case that the impugned order was not preceded by any enquiry, it appears from the affidavit-in-opposition of the NHM filed on 22.07.2022 that a Show Cause Notice was indeed issued followed by constitution of a Committee and submission of a report based upon which the impugned order has been issued.

13. The order of termination however does not appear to be one which can be termed as termination simpliciter but is based on an allegation of medical negligence connected to lodging of a police case. As noted above, in the aforesaid police case, no materials were found against the petitioner resulting in filing of Final Report which has also been accepted by the competent Court on 27.02.2025.

14. Though the entry of the petitioner into the service was contractual in nature wherein the authorities would have all the rights to terminate the contract, such termination has to be done in accordance with law. While, the authorities would be at liberty to take a decision not to extend the contractual period after expiry of the term if the situation so requires, in the instant case, it is not a case wherein the authorities have failed to extend the term and rather the services of the petitioner was terminated on the basis of his implication in the police case. This Court has also noted that by virtue of the interim order dated 07.02.2018, the petitioner is still in service.

15. In view of the aforesaid facts and circumstances and by balancing the equities as well as by taking into account the interest of justice, it is directed that the impugned order of termination dated 14.12.2017 has spent its force inasmuch as for the last more than 5 years the petitioner is in service by virtue Page No.# 7/7

of the interim order dated 07.02.2018. The interim order is accordingly made absolute. It is however made clear that the authorities would have the liberty to take a decision with regard to the aspect of the extension of the contract of the services of the petitioner. However, such decision has to be taken strictly in accordance with law.

16. The writ petition accordingly stands allowed, to the extent indicated above.

JUDGE

Comparing Assistant