Debjani Deb Sarkar vs The State Of Tripura
2021 Latest Caselaw 1124 Tri

                 HIGH COURT OF TRIPURA
                       AGARTALA

                  WP(C) No. 102 of 2021

Debjani Deb Sarkar,
wife of Amit Choudhury,
R.O: Village: Indranagar, P.O: Indranagar,
P.S. NCC, Dist: West Tripura, PIN:799006
                                             -----Petitioner(s)

                            Versus
1. The State of Tripura
To be represented by the Secretary, Health Department,
Govt. of Tripura, New Secretariat Building, New Capital
Complex, Kunjaban, P.S. New Capital Complex, Agartala, West
Tripura, PIN-799010

2. The Director of Health Services,
Govt. of Tripura
Agartala, West Tripura

3. The Chairman (Executive Committee)
District Health & Family Welfare Society (Chief Medical
Officer),
West Tripura, Agartala

4. The Chairman (Executive Committee)
District Health & Family Welfare Society (Chief Medical
Officer), Sepahijala District, Bishalgarh

5. The Mission Director,
National Rural Health Mission, Govt. of Tripura, Gurkhabasti,
Agartala-799006, Tripura, Agaratala
                                          ----- Respondent(s)

For Petitioner (s) : Mr. S Bhattacharjee, Advocate For Respondent(s) : Ms. N Chakma (Saha), Advocate Whether fit for reporting : NO

HON'BLE MR. JUSTICE S. TALAPATRA

Judgment & Order (Oral)

17.11.2021

Heard Mr. S Bhattacharjee, learned counsel

appearing for the petitioner as well as Ms. N Chakma (Saha),

learned counsel appearing for the respondents.

2. The petitioner, who was serving as Computer

Assistant on contractual basis for strengthening of Routine

Immunization Programme under State Health and Family

Welfare Society, Tripura, has challenged the memorandum

dated 03.02.2021 (Annexure-36 to the writ petition).

3. By the said memorandum, the petitioner has been

terminated from her services w.e.f. 03.03.2021. There is no

dispute that the petitioner was appointed on contractual basis

and she was initially appointed for 11 months as Computer

Assistant and from time to time, such engagement was

renewed. Lastly, by the memorandum dated 01.04.2020

(Annexure-19 to the writ petition) her service was continued

along with others for the period from 01.04.2020 till

31.03.2021.

4. In the said memorandum dated 01.04.2020 the

following provision has been inserted:

"Continuation of services under respective societies will henceforth be issued on the basis of Performance Appraisal System/Performance Appraisal Report (PAR) as decided by the authority for 1(one) year as per existing terms & condition."

5. But by the impugned memorandum, before the said

tenure has expired, the petitioner‟s service has been

terminated with effect from 03.03.2021. The said

memorandum containing the order of termination is under

challenge in this writ petition.

6. Mr. Bhattacharjee, learned counsel appearing for

the petitioner, has contended that if the veil is lifted from the

apparent facts which led to issuance of the said memorandum

terminating the service of the petitioner, it will be transparent

that the petitioner was transferred by the order dated

15.01.2019 to the office of the Chief Medical Officer,

Sepahijala from her place of posting i.e. the office of the Chief

Medical Officer, West Tripura.

7. It appears from the records that the petitioner did

not join the new place of posting and she continued in her

earlier place of posting and according to her, she was directed

to continue in the previous place of posting by the Head of

Office and DDO of her earlier office.

8. Be that as it may, the Mission Director NHM,

Government of Tripura, issued a show cause notice on

31.08.2020 asking the petitioner to reply within three days

from the date of receipt of that notice (Annexure-24 to the

writ petition) why the appropriate disciplinary action should

not be taken against her as she had violated the office order

dated 15.01.2019.

9. The petitioner filed the reply on 02.09.2020 by

stating inter alia that she was verbally permitted to work in

her previous place of posting and she had discharged her

duties and responsibilities there.

10. Further, she has stated in para 3 of the said reply

dated 02.09.2020 (Annexure 25 to the writ petition) as

follows:

"3. That sirif I worked in violation of the transfer order dated 15.01.2019 then it would be obvious that salary would not be released in my favour. But as I was working on the basis of the verbal direction and decision of the authority salary was also released by the Head of Office and DDO from which act it is implied that my transfer order was stayed if not cancelled."

11. Further, it appears that after the said reply, by the

release order dated 04.09.2020 the petitioner was asked to

join her new place of posting. Accordingly, the petitioner had

joined in her new place of posting on 07.09.2020. But the

petitioner had taken four days‟ casual leave from 08.09.2020

to 11.09.2020 due to „family affairs‟ but after expiry of the

period from 08.09.2020 to 11.09.2020 she did not resume her

duties in the new place of posting but had applied for

extension of leave from 14.09.2020 to 13.10.2020 as for

sudden transfer her children were suffering from illness and if

the petitioner continued to discharge her duties at her new

place of posting it would not have been possible on her that to

take due care of her children.

12. In response to her letter, addressed to the Chief

Medical Officer, Sepahijala district for special leave for 30 days

(Annexure 29 to the writ petition), the Chief Medical Officer

who was occupying the position of the Chairman, Executive

Committee, District Health and Family Welfare Society,

sanctioned eleven days casual leave.

13. The petitioner was not entitled to further leave, as

per the terms and condition of the engagement. The petitioner

is only entitled to get casual leave for a period of twelve days

and the petitioner is/was not entitled to any other leave. In

that turn of events, on 09.10.2020 the petitioner made an

application for her transfer to the Mission Director by detailing

the mitigating circumstances with which she was confronted

with.

14. On 27.10.2020, the petitioner was asked by the

memorandum to reply why she was absent from the duties

unauthorizedly w.e.f. 04.10.2020. In response to that, as it

appears, the petitioner filed an application to the Chief Medical

Officer, Sepahijala district on 28.10.2020 stating that she had

filed an application for leave for thirty days on medical

grounds w.e.f 23.09.2020 to 22.10.2020 and she had applied

for more leave for her own illness w.e.f. 23.10.2020 to

21.11.2020.

15. Even after receipt of the communication from the

competent authority that the petitioner is not entitled to any

further leave, in the form of a reply to the memorandum dated

27.10.2020, the petitioner on 16.11.2020 (Annexure-34 to the

writ petition) had stated that "she had come to know her

medical leave was sanctioned only for eleven days i.e. up to

03.10.2020 and there had been no leave pending."

16. The petitioner had seriously pressed again to grant

her the leave, as applied. Again the petitioner filed an

application to the Principal Secretary, Department of Health,

Government of Tripura on 09.11.2020 seeking her transfer

and posting in the Office of the Chief Medical Officer, West

Tripura district so that she can perform better.

17. Thereafter, by the memorandum dated 03.02.2021,

the petitioner has been terminated giving one month‟s notice

and making the termination order to be effective from

03.03.2021. The relevant part of the said memorandum dated

03.20.2021 (Annexure-37 to the writ petition) is reproduced

hereunder for reference:

"As per the last en-mass continuation of contractual staff working under NHM, Tripura issued vide Memorandum No.F.3(5-3782) FWPM/SHFWS/2019/09-42 dated 1st April, 2020 Smt. Debsarkar got continuation upto 31/03/2021 along with all other staffs of SHFWS. Now, the appropriate authority has decided to terminate/ discontinue her service from NHM Tripura after 03/03/2021. As per terms of the appointment i.e., the „appointment is purely contractual and liable to be terminated at any

time without any reason thereof with 1(one) month notice or 1(one) month salary from either side‟ as per Colum 5 of the table below, the Column 5 the effective date of termination has been provided of as 3rd March, 2021."

18. Mr. Bhattacharjee, learned counsel has submitted

that those conducts have been considered behind the back of

the petitioner and as such, the termination order is not

simplicitor one, it is driven by the consideration mala fide and

behind the back of the petitioner.

19. Moreover, Mr. Bhattacharjee, learned counsel has

submitted that in the initial engagement letter there was no

clause of termination with one month‟s notice or one month‟s

salary in advance.

20. For repelling the said of submission of Mr.

Bhattacharjee, Ms. Chakma (Saha), learned counsel has at the

outset pointed out that it is true that in the memorandum

dated 27.02.2007 (Annexure-4 to the writ petition) by which

the petitioner was initially appointed there is no clause of

termination, but subsequently, while the renewal was made by

the order dated 11.01.2008 (Annexure-7 to the writ petition)

the following clause was added as condition of the

engagement of the petitioner as contractual Computer

Assistant.

"3. The offer of continuation is liable to be terminated at any time without assigning any reason thereof with one month‟s notice on either side."

21. The said clause had continued in all orders of

renewal subsequently including the order dated 27.12.2008

(Annexure-8 to the writ petition), the order dated 07.11.2009

(Annexure-9 to the writ petition), the order dated 27.09.2010

(Annexure-10 to the writ petition), the order dated

29.11.2011 (Annexure-11 to the writ petition), the order

dated 09.10.2012 (Annexure-12 to the writ petition), the

order dated 30.09.2013 (Annexure-13 to the writ petition),

the memorandum dated 23.02.2015 (Annexure-14 to the writ

petition), the memorandum dated 13.05.2016 (Annexure-15

to the writ petition) and finally, by the memorandum dated

01.04.2020 (Annexure-19 to the writ petition) the petitioner

was engaged for further one year with effect from 02.04.2020

till 31.03.2020 and in the said memorandum it has been

clearly stated that the existing terms and conditions will apply

in respect of the said engagement.

22. Ms. Chakma (Saha), learned counsel has thus

contended that the clause of termination had been quite

unambiguously inserted as the term of engagement.

Therefore, the petitioner‟s plea that there is no such term in

the engagement does not survive the test of scrutiny.

23. Ms. Chakma (Saha), learned counsel has submitted

that the documents which have been submitted by the

petitioner in respect of her absence were on the record but

those conducts of the petitioner have not been reflected as the

ground of termination in the impugned memorandum

terminating the service of the petitioner. But the respondent

does not deny those records reflecting to the unacceptable

absence of the petitioner. According to her, the show cause

notice was issued and it is apparent from the reply that cause

are not satisfactory.

24. Thus, the allegation that the decisions were taken

without the knowledge of the petitioner about her absence is

completely unfounded. On the contrary, the records reflect

that the petitioner was given opportunities to explain her

absence. Thus, the allegation of mala fide shall fall flat.

25. Having appreciated the submission of the learned

counsel for the petitioner, this court finds that no material has

been taken into consideration against the petitioner which

were not placed for the petitioner‟s response. Whether the

petitioner was performing satisfactorily or not, will be decided

by the employer. This court, yes, may lift the veil to find out

whether any material has been taken mala fide against the

petitioner for purpose of termination.

26. It may be stated here that lifting the veil is not the

end of the matter. Only after lifting of the veil if it is seen that

some materials were considered by the employer, which were

not made known to the terminated employee or no

opportunity was afforded to him/her for response and the

employer was prompted by those to terminate the petitioner,

in such circumstances the court may interfere.

27. But in the present case, the materials those are

apparently utilized for assessment have been made known to

the petitioner and placed for response. As such the competent

authority was at liberty to take a decision on retention of the

petitioner in the service.

28. Ms. Chakma (Saha), learned counsel has stated

that the action of the respondent is not tainted by mala fide.

Hence, this court does not find any infirmity in the order of

termination. The said order of termination has been issued

within the terms of the contract of engagement. No other

premise subsists which may persuade this court to interfere

with the order of termination. As consequence, this writ

petition stands dismissed.

There shall be no order as to costs.

JUDGE

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