Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 498 (GAU)

Haren Das v. State of Assam

2004-08-30

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. Both the writ petitions being based on same set of facts raising the same grievance, were heard analogously and they are being disposed of by this common judgment and order. 2. The Petitioners are aggrieved by their repatriation from the erstwhile Lokapriya Gopinath Bordoloi Institute of Mental Health, Tezpur (LGBIMH) which was earlier run by the Government of Assam in the Department of Health and Family Welfare. On the basis of the recommendation made by the Gopal Subramaniam Commission, the Apex Court by its order dated 3.10.94 on a PIL petition directed the Government of India to take over the Institute for better management and treatment facilities. Pursuant thereto, the Government of India accorded sanction to the North Eastern Council (NEC), Shillong to take over the Institute and develop it as a Regional Institute of Mental Health by an order dated 18.12.97. 3. The LGBIMH was reconstituted as a society under the Societies Registration Act, 1860 and oh 11.2.99 an agreement was executed between the Government of Assam and the NEC (Ministry of Home Affairs) laying down the terms and conditions for taking over the Institute and constituting the Board of Governors and the Executive Council and detailing other provisions relating to properties and the employees of the Institute. Clause 6 of the agreement provided for giving choice of absorption in the new set up or reversion to the Government of Assam providing further that the terms and conditions governing all employees serving and employed by the Institute shall not be altered to their disadvantage. 4. By an order dated 22.10.99, the Government of Assam handed over the Institute alongwith the land, building and other assets to the NEC with effect from 17.2.99. The Government of Assam in the Health and Family Welfare Department by its letter dated 28.2.2000 addressed to the Director of the Institute (Respondent No. 4) conveyed the decision to grant quasi lien to 184 employees including the Petitioners for a period of two years with effect from 17.2.99 or till the date of submission of option by the employees on finalisation of terms and conditions of service as per the said agreement. Be it stated here that the Petitioner in W.P. (C) No. 1343/2002 was serving as Lower Division Assistant and the Petitioner in W.P. (C) No. 3361/2002 was serving as Ward Girl at that relevant point of time. 5. Be it stated here that the Petitioner in W.P. (C) No. 1343/2002 was serving as Lower Division Assistant and the Petitioner in W.P. (C) No. 3361/2002 was serving as Ward Girl at that relevant point of time. 5. When the matter rested thus and the quasi-lien granted to the Petitioners and others was in operation, the Petitioner in W.P. (C) No. 1343/2002, by his application dated 19.1.2001 made a request to the Government of Assam in the Health and Family Welfare Department for withdrawal of the lien and allowing him to go back to the parent department. Likewise the Petitioner in W.P. (C) No. 3361/2002 made a prayer on 18.10.2000 to the Government of Assam in the Health and Family Welfare Department for her transfer to a nearby Health Centre of her home at Kalahari in the district of Sonitpur. Grounds assigned for such transfer were the domestic problems including the death of her husband. Unlike the first Petitioner, there was no prayer on the part of the second Petitioner praying for withdrawal of the lien or seeking repatriation to the parent department. 6. The aforesaid applications submitted by the Petitioners were forwarded by the Respondent No. 4 by his letters dated 24.1.2001 and 6.11.2000 respectively. Before any action could be taken on the said two representations submitted by the Petitioners, the Respondent No. 4 who himself had forwarded the same to the Government of Assam for necessary action, released the Petitioners by two separate orders both dated 15.2.2001 from the Institute purportedly on completion of the lien period of two years with effect from 16.2.2001 enabling them to return to their parent department. 7. The Petitioners by their individual applications dated 20.2.2001 and 20.1.2001 requested the State Government to treat their earlier applications seeking repatriation and transfer to be treated as cancelled on withdrawal. In the meantime, the Government of Assam in the Health and Family Welfare Department by its WT message dated 3.3.2001 addressed to the Director of the Institute requested not to release any employee from the Institute without prior approval of the Government and to treat the orders of repatriation of the Petitioners as cancelled. The ground assigned for such a course of action was non-finalisation of the service conditions of the Institute by the NEC authority. It was further requested to cancel the release orders of the Petitioners. 8. The ground assigned for such a course of action was non-finalisation of the service conditions of the Institute by the NEC authority. It was further requested to cancel the release orders of the Petitioners. 8. When no action was taken to take back the Petitioners towards continuance of their services in the Institute and the Petitioners did not receive salary either from the Institute or from the Government of Assam, they approached this Court by filing the aforesaid two writ petitions. This Court by interim orders dated 5.3.2002 and 24.5.2002 respectively and passed separately in both the writ petitions directed the Institute to take back the Petitioners forthwith in their respective services and to pay them their salary from 1st March, 2002 and 1st June, 2002 respectively. As to the period from the date of their release from the Institute i.e. 17.2.2001 to the end of February, 2002 so far as the first Petitioner is concerned and from 17.2.2001 to 31.5.2002 so far as the second Petitioner is concerned, same was left open to be decided at the final hearing of the writ petitions. 9. According to the Petitioners the impugned order dated 15.2.2001 releasing them from the Institute is illegal being without jurisdiction. According to them, they could not have been released in the manner and method in which they were so released. By means of an additional affidavit filed by the Petitioner in W.P. (C) No. 1343/2002 the Petitioners have brought on record a notification dated 25.6.2003 by which the Respondent No. 4 i.e. the Director of the Institute requested the employees of the Institute who were from the Government of Assam to offer their option for permanent absorption in the Institute. By the said notification it was further indicated that no clear cut terms and conditions on service matter have been finalised and the employees would require to state their terms and conditions alongwith their option. The Petitioners have also referred to certain orders to show that the employees of the State Government who are still serving with the Institute, have been granted promotion by the Government of Assam. These documents have been brought on records to suggest that the process of permanent absorption of the erstwhile employees of the State Government is still on and the Petitioners could not have been deprived of such permanent absorption by means of the impugned released orders. 10. These documents have been brought on records to suggest that the process of permanent absorption of the erstwhile employees of the State Government is still on and the Petitioners could not have been deprived of such permanent absorption by means of the impugned released orders. 10. The State Government has not filed any affidavit but has made its stand clear by means of the communications dated 3.3.2004 and 15.6.2004. By the communication dated 3.3.2004, the Government of Assam informed the Director of the Institute conveying no objection towards continuance of lien of the employees beyond the earlier period of limitation prescribed subject to their absorption with their original date of deputation. By the communication dated 15.6.2004, the Senior Government Advocate, Assam was informed in reference to the said letter dated 3.3.2004, confirming continuance of lien till absorption of the employees. Thus the State Government supported the case of the Petitioners with the stand that they could not have been released in the manner and method in which they have been so released and that the Petitioners still continue with the Institute without there being any affect of the impugned release orders. 11. The Institute has filed its affidavit-in-opposition denying the contentions raised by the Petitioners. It has also filed an affidavit-in-opposition to the additional affidavit filed by the Petitioners. The stand of the Respondents No. 3 and 4 in their said affidavits is that the Petitioners expressed their desire for repatriation and it was on that basis they were released from the Institute. As the lien of the Petitioners expired on 16.2.2001 and in the meantime the Petitioners submitted applications for repatriation and transfer, the Institute had no option but to release them without awaiting for the decision of the State Government. Further stand in the affidavit is that the Director of the Institute issued a notice dated 6.2.2001 requesting all the employees to submit individual application for extending the lien for a period of one year with effect from 17.2.2001 in response to which all the employees including the Petitioners submitted their individual applications exercising the option. However, the Petitioner in W.P. (C) No. 1343/2002 purportedly took away the application after submitting of the same. Nothing has been stated as regards the Petitioner in W.P. (C) No. 3361/2002. 12. However, the Petitioner in W.P. (C) No. 1343/2002 purportedly took away the application after submitting of the same. Nothing has been stated as regards the Petitioner in W.P. (C) No. 3361/2002. 12. Thus it is the stand of the Respondents in both the writ petitions that the impugned release orders had to be issued as per the desire of the Petitioners and they cannot now turn round so as to question the validity of the same. According to the Respondents, it is the Petitioners who are responsible for the kind of situation which eventually culminated to the instant writ proceedings and that the Respondent No. 3 and 4 are in no way responsible for the situation so created by the Petitioners themselves. Referring to the budgetary allocation etc., the Respondents have taken the stand in their affidavit that they are not in a position to accommodate the Petitioners beyond the sanctioned cadres strength. 13. I have heard Mr. R.P. Sarma, learned Counsel for the Petitioner and Ms. R. Chakraborty, learned State Counsel, Mr. K. Agarwal, learned Counsel made submissions on behalf of the Respondents No. 3 and 4. 14. Mr. Sarma submitted that the Petitioners have been discriminated and that they have been arbitrarily repatriated acting on their applications, which were subsequently withdrawn by them. Referring to the Notification dated 25.6.2003 annexed to the additional affidavit, Mr. Sarma submitted that by the said notification, options having been called for absorption in the Institute, the erstwhile employees of the State Government were still treated to be maintaining their lien, but an exception was made in the case of the Petitioners. On the other hand, Mr. Agarwal, learned Counsel for the Respondents No. 3 and 4 supported the action of the Respondents and submitted that the Petitioners themselves attracted the kind of situation in which they are now and that there was no fault on the part of the Respondents. Ms. R. Chakraborty, learned State counsel supported the case of the Petitioners. She submitted that the Petitioners ought not to have been released by the Respondent No. 4 and that the entire action on the part of the said Respondents was with undue haste giving rise to the kind of situation in which the Petitioners have found themselves to be in. 15. She submitted that the Petitioners ought not to have been released by the Respondent No. 4 and that the entire action on the part of the said Respondents was with undue haste giving rise to the kind of situation in which the Petitioners have found themselves to be in. 15. The Petitioner in W.P. (C) No. 1343/2002 had submitted the application dated 19.1.2001 to the Government of Assam seeking withdrawal of the lien granted to him. No such application was submitted to the Respondent No. 4 praying for repatriation to the Government of Assam. The Respondent No. 4 forwarded the application of the Petitioner to the State Government with the request to consider his prayer for withdrawal of lien. However, without awaiting for any order from the State Government, the Respondent No. 4 issued the impugned order dated 15.2.2001 releasing the Petitioner from the Institute with effect from 16.2.2001 on ground of completion of the lien period. In the impugned order, a reference was made to the application submitted by the Petitioner. In the meantime the petitions by his letter dated 20.2.2001 addressed to the Government of Assam withdrew the prayer made in the application dated 19.1.2001. The State Government by its WT message dated 3.3.2001 addressed to the Respondent No. 4 made a request not to release any employee without prior approval of the Government. A specific request was made for cancellation of the release orders of the Petitioners. It was specifically stated in the WT message that the service conditions of the Institute were yet to be finalised by the NEC authority. 16. As per the stand in the affidavit, the first Petitioner exercised his option to remain with the Institute in lien in response to the notice dated 6.2.2001 issued by the Director. However, the Petitioner allegedly took the letter of option away. The Respondents have not specified any date on which the Petitioner took recourse to such an action and as to why he was allowed to do so. All other erstwhile employees of the State Government working in the Institute were allowed to remain with the Institute beyond the period of lien fixed by the State Government except the Petitioners. 17. The Respondents have not specified any date on which the Petitioner took recourse to such an action and as to why he was allowed to do so. All other erstwhile employees of the State Government working in the Institute were allowed to remain with the Institute beyond the period of lien fixed by the State Government except the Petitioners. 17. The quasi-lien had to be granted by the State Government in view of the changed scenario in which the Institute, which was earlier with the State Government in the Department of Health and Family Welfare, became a Regional Institute under the NEC. The Petitioners who were admittedly State Government employees were granted quasi lien alongwith other 182 employees facilitating their eventual absorption in the Institute. It is the Petitioner in W.P. (C) No. 1343/2002 who alone was released from the Institute acting on his aforesaid application dated 19.1.2001 which was addressed to the State Government and not to the Institute. The said application was duly forwarded by the Director of the Institute to the State Government making a request to accede to the prayer made by the Petitioner for his repatriation. However, before the State Government could act upon the same, the Respondent No. 4 released him from the Institute without waiting for the response from the State Government. 18. It has all along been the stand of the State Government that the erstwhile State Government employees serving in the Institute to a reconstitution of the Institute to a Regional Institute, were allowed to remain with the Institute till their regular absorption there. It is the State Government which was to extend the lien, if the concept of lending and borrowing in such matter is applied. The State Government by its WT message dated 3.3.2001 made the position clear. However, the Respondent No. 4 taking unilateral decision in the matter repatriated the Petitioners by way of the impugned release orders dated 15.2.2001 on the ground of expiry of the lien unmindful of the fact that the plea of expiry of lien, if applied, in its strict sense, was equally applicable to all other 182 employees. It was the State Government, which had the authority to extend the lien and they had the approval for the same as will be evident from the aforesaid WT message. It was the State Government, which had the authority to extend the lien and they had the approval for the same as will be evident from the aforesaid WT message. Thus I am of the considered opinion that the Respondent No. 4 acted in haste in releasing the Petitioners. 19. The Petitioner in W.P. (C) No. 3361/2002 did not even pray for her release from the Institute by way of withdrawal of the lien. In her representation dated 18.10.2000 made to the State Government, she had only prayed for her transfer from the Institute to a nearby place of her native place on various grounds, more particularly, on the ground of expiry of her husband. The Respondent No. 4 taking recourse to the said representation could not have released her by the impugned order dated 15.2.2001. Nothing has been stated by the Respondents in their affidavits about the option exercised by her. It is not the stand of the Respondents, that like the first Petitioner, she had withdrawn her option. 20. With the taking over of the Institute as a Regional Institute by the NEC under the directives of the Central Government, naturally there was a transitory period towards finalisation of the modalities regarding handing over and taking over of charge and the absorption of the employees. It was with that view of the matter, the State Government initially granted quasi lien to all the employees including the Petitioners for a period of two years with effect from 17.2.99. Although there was no formal order of extension of lien, all the employees continued with the Institute and the State Government made its position clear by the aforesaid WT message dated 3.3.2001 which amounted to further extension of lien with effect from 17.2.2001. Unfortunately, the Respondent No. 4 without awaiting for any communication from the State Government issued the impugned orders of release dated 15.2.2001 only in respect of the Petitioners. 21. There is another aspect of the matter. Both the Petitioners are now serving in the Institute as per interim orders of this Court, which were passed on 5.3.2002 and 24.5.2002 respectively. They have been receiving their salary with effect from 1.3.2002 and 1.6.2002. By the notification dated 25.6.2003 annexed to the additional affidavit, all the employees working in the Institute had been requested to offer their option for permanent absorption. They have been receiving their salary with effect from 1.3.2002 and 1.6.2002. By the notification dated 25.6.2003 annexed to the additional affidavit, all the employees working in the Institute had been requested to offer their option for permanent absorption. By the communication dated 3.3.2004, the Government of Assam has conveyed no objection towards continuance of lien of the employees beyond the earlier period of limitation prescribed subject to their absorption with their original date of deputation. In such a situation it will not be in the fitness of the things to disturb the Petitioners by way of repatriation from the Institute. Instead they should be allowed to exercise their option for permanent absorption in the Institute with effect from the date specified and made applicable for other 182 employees. 22. This now necessarily leads to the question of entitlement of salary payable to the Petitioners for the intervening period during which they remained away from the Institute i.e. 17.2.2001 to the end of February, 2002 in respect of the Petitioner in W.P. (C) No. 1343/2002 and from 17.2.2001 to 31.5.2002 in respect of the Petitioner in W.P. (C) No. 3361/2002. Since the impugned orders of release have been held to be illegal and the Petitioners were kept away from their duties by the said impugned orders and having regard to the facts and circumstances involved in the case, the Petitioners will be entitled to receive their salary for the aforesaid period from the Institute (the Respondent No. 3) which shall be paid to them within three months from today. 23. For the foregoing reasons and discussions, the impugned orders dated 15.2.2001 stand set aside and quashed. The writ petitions are allowed leaving the parties to bear their own costs. Petition allowed.