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2011 DIGILAW 733 (GAU)

Salehahmed (Md. ) v. State of Assam & Ors.

2011-09-01

AMITAVA ROY, B.D.AGARWAL

body2011
Amitava Roy, J.- The judgment and order dated 11.3.2010 passed in WP (C) No. 5957/2009 spurning the challenge of the writ appellant to the decision of non-renewal of his contract as Block Programme Managar (for short, hereinafter referred to as 'BPM') under the District Health Society, Karimganj, (for short, hereinafter referred to as 'the Society') is under impugnment in the present appeal. 2. We have heard Mr. G. N. Sahewalla, Senior Advocate for the appellant and Ms. A. Verma, learned Standing Counsel, Health & Family Welfare Department, Government of Assam for the respondents. 3. The appellant's pleaded version in brief is that on the basis of a selection held for the post of BPM and on sucessful completion of the training therefor, he was, by order dated 29.5.2007 of the Mission Director, NRHM, Assam, posted in the said capacity in the Kanchuadam Primary Health Centre in the district of Karimganj and his services were placed at the disposal of the District Health Society, Karimganj. By order dated 4.6.2007 of the Joint Director of Health Services-cum-Member Secretary, District Health Society, Karim­ganj, he was engaged in BPM for a period of six months subject to the execution of a contract to that effect. The order mentioned that his services were placed at the disposal of Sub-Divisional Medical & Health Officer (i/c) Kachuadam PHC. A contract as referred to in the aforementioned order was executed between the writ appellant and the Joint Director of Health Services-cum-Member Secretary, District Health Society, Karimganj which contained inter alia the following clause:- "8, 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 any insubordination, intemperance or other misconduct or of any breach or non-performance, it being clearly understood that the Society shall always invoke this clause in consultation with the Chairman of the Society and Member Secretary of the Society." At the time of appointment the writ appellant along with similar appointees also signed a chart of "Job responsibilities of Block Programme Manager". 4. According to the writ appellant, he thereafter discharged his duties without any blemish and to the satisfaction of all concerned. He used to submit progress reports detailing his activities and achieve­ments to the Joint Director of Health Services-cum-Member Secretary, District Health Society, Karimganj. 4. According to the writ appellant, he thereafter discharged his duties without any blemish and to the satisfaction of all concerned. He used to submit progress reports detailing his activities and achieve­ments to the Joint Director of Health Services-cum-Member Secretary, District Health Society, Karimganj. He has averred that in all monthly review meetings held as per the aforementioned chart his performance was highly appreciated at all levels. According to him, on an evaluation of the implementation, execution and achievements of the National Rural Health Mission, Assam Objectives in the year 2009, his performance in comparison to other BPMs was much better and in fact best in the district of Karimganj and his district was assigned second position in the overall performance in the above field of activities updated till 25.6.2008. It was in this background that as a bolt from the blue he was communicated vide letter dated 11.12.2009 of the Joint Director Health Services-cum-Member Secretary, District Health Society, Karimganj that his contract as BPM would not be renewed from that date. Thereby he was asked to hand over all documents, office records, materials etc. to the Sub-Divisional Medical & Health Officer (i/c) Kachuadam PHC and was offered one month's remuneration as well On receipt of the said communication, the appellant on 13.12.2009 submitted a representation before the Mission Director, NRHM, Assam seeking, amongst others, an impartial scrutiny of all relevant aspects bearing on his performance with a request to reinstate him in his post. As inspite of the assurances given to him by the said authority nothing materialized, he followed-up his request but the same also remained unresponded. In this background he laid the challenge before this Court. 5. The respondent 2, Mission Director, NRHM, Assam is his affidavit in substance pleaded in endorsement of the impugned action contending that on 26.6.2009 a performance appraisal was held and a report was forwarded to him by the District Programme Manager, NRHM, Karimganj which demonstrated that the appellant's peformance was below average. A public complaint dated 5.3.2008 was also referred to and annexed to the second affidavit dated 9.3.2010. A public complaint dated 5.3.2008 was also referred to and annexed to the second affidavit dated 9.3.2010. The following salient features of the report of the Performance Appraisal Committee of BPM and DPM of Karimganj District dated 3.8.2009 vis-a vis the performance of the appellant were recited in the affidavit:- i) Poor team spirit and tendency of insubordination; ii) No lucid idea about HMIS and poor HMIS reporting; iii) Lack of coordination with block level healthy functionaries; iv) Involvement in corrupt practice (Third party report). 6. The affidavit discloses that the Performance Appraisal Committee had awarded 4E' Grade to the appellant which was below average recommending engage-ment of a new BPM in his place to improve the programme implementation process. The answering respondent further averred that the Performance Appraisal Committee of the Karimganj District was composed of the Deputy Commissioner thereof as the Chairman and other high level authorities. It was, however, admitted that the contract of the appellant was terminated for non-performance, insubordination and corrupt practice (Third party report) as per Clause-8 in terms of the contract based on the performance appraisal report. 7. Mr. Sahewalla has argued that though the impugned letter 11.12.2009 communi­cated and innocuous decision of non-renewal of the term of appointment of the appellant as BPM, it is apparent from the pleadings of the respondents that the same in reality was a punitive step against him. As the said action has been taken against the appellant without affording him any opportunity to represent against the adverse materials taken note of by the respondents, it is liable to be set aside on the ground of violation of the principles of natural justice alone. The learned senior counsel has argued that as the appellant continued beyond the initial contractual term, there was no scope of non-renewal thereof and the impugned decision is palpably one of termination of his appointment as BPM. While contending that due to the continuous and unstinted performance of the appellant the Kachuadam PHC, of which he was the BPM, had been judged second in the district of Karimganj, Mr. Sahewalla has urged that only all the members of the Performance Appraisal Committee were not present during the proceedings held on 26.6.2009, the impugned decision has been taken by leaving out of consideration the relevant materials in favour of the appellant and acting on impertinent facts against him. Sahewalla has urged that only all the members of the Performance Appraisal Committee were not present during the proceedings held on 26.6.2009, the impugned decision has been taken by leaving out of consideration the relevant materials in favour of the appellant and acting on impertinent facts against him. In this regard, the learned senior counsel, in particular, has drawn the attention of this Court to the report of the SDM & HO, Kachuadam PHC as well as the representations of the members of the local institutions appreciating the role and performance in the implementation of the projects of the National Rural Health Mission, Assam in the concerned area. Reliance has been placed in endorsement of the above submission on the decision of this Court rendered in Dharmeswar Baishya Vs. Slate of Assam & Ors. 2004 (4) GLT253; Gita Devi Poddar (Smti) Vs. State of Assam & Ors., 1998 (4) GIT 58; Romen Medhi Vs. Axom Sarba Shiksha Abhijan & 3 Ors. [WP (C) 143/2010 (date of disposal-8.1.2010)] and in Rijumoni Das Vs. State of Assam. [WP (C) 1637/2010 (date of disposal-29.6.2010)]. 8. In reply, Ms. Verma has maintained that as enjoined the performance of the BPMs and Block Accounts Managers (BAMs for short) were appraised in terms of the norms formulated therefor on 26.6.2009 by the Performance Appraisal Committee. Accord­ing to her, though the petitioner made his presentation before the said Committee on that date, his performance was not up to the mark and it (Committee), on an evaluation thereof as well of his overall activities in the capacity of BPM, recommended against renewal of his contractual term in the said capacity. Highlighting that the adjudgment of the Kachuadam PHC to be second in rank in the Karimganj district is per se not demonstrative of he appellant's level of performance and his capacity as a team leader, the learned Standing Counsel has dismissed the cavil against denial of opportunity to him to explain the materials on which the impugned decision was eventually taken. Ms. Verma has argued that the appellant was accorded all reasonable opportunities of making his representation before the Performance Appraisal Committee and that, therefore, his challenge to the impugned order on the ground of unfairness in action is unsustainable in law and on facts. She has claimed that the impugned decision has been taken in terms of the contract. Ms. Verma has argued that the appellant was accorded all reasonable opportunities of making his representation before the Performance Appraisal Committee and that, therefore, his challenge to the impugned order on the ground of unfairness in action is unsustainable in law and on facts. She has claimed that the impugned decision has been taken in terms of the contract. The learned Standing Counsel has apprised this Court that on the measure of the performance assessed by the Committee the contractual term of many BPMs/B AMs alike the appellant has not been renewed. On being queried by this Court, she has submitted that the Deputy Commissioner and the Joint Director of Health Services are respectively the Chairman and Member Secretary of the District Health Society, Karimganj. 9. We have duly considered the pleadings on record as well as the submissions made. That the appellant had continued beyond the initial period of six months of his contractual appointment as BPM is a matter of record. The affidavits filed on behalf of the respondents make it apparent that the impugned decision had been taken as contemplated in Clause-8 of the contract executed between the appellant and the Joint Director of Health Services-cum-Member Secretary, District Health Society, Karimganj on 4.6.2007. It would be apparent from the said Clause as extracted hereinabove that the services of the appellant could be terminated at any time by the Society if he was found to be guilty of any insubordination, intemperance or other misconduct or of any breach or non-perfor­mance and that it could only be invoked in consultation with the Chairman of the Society. Para-10 of the affidavit filed by the respondent No.2 clearly reveals that the appellant's contract was terminated for non-performance, insubordination and corrupt practice (Third party report) as per Clause -8 of the term of the contract based on the Performance Appraisal Report. Para-10 of the affidavit filed by the respondent No.2 clearly reveals that the appellant's contract was terminated for non-performance, insubordination and corrupt practice (Third party report) as per Clause -8 of the term of the contract based on the Performance Appraisal Report. It is, thus, obvious that the impugned decision had been taken taking note of the appellant's non-performance, conduct of insubordination and involvement in corrupt practice coupled with the Performance Appraisal Report laid by the Committee, It is apparent as well from Para-7 of the said affidavit that the performance of the appellant was found to be unsatisfactory on account of - (i) poor team spirit and tendency of insub­ordinate, (ii) lack of lucid idea about HMIS and poor involvement in HMIS reporting, (iii) lack of coordination with block level health functionaries, and (iv) involvement of corrupt practice. The Performance Appraisal Committee ascribed E-grade to him which was below average. 10. The deficiencies in his performance in the capacity of BPM as assessed in the realms if team spirit, idea and involvement in HMIS, coordination with block level health functionaries, though may have a bearing on his overall suitability, the imputation of insubordination and corrupt practice is apparently stigmatic. The records contain two sets of representations for and against the appellant- one highly appreciating his role and activities as BPM and the other accusing him of gross defaults and malpractices. The report of the SDM & HO, Kachuadam PHC, however, certifies his excellent managerial skill and remarkable contribution as BPM in furtherance of the National Rural Health Mission Project in the locality of his Primary Health Centre. The respondents in their affidavit have admitted that the report of the SDM & HO, Kachuadam PHC was not taken into consideration as the said authority was neither a member of the Performance Appraisal Committee nor was any such report called for by the Deputy Commissioner-cum-Chairman of the District Health Society Karimganj. 11. In our considered opinion, having regard to the grounds on which the appellant's assignment as BPM had been terminated, he ought to have been confronted with the materials bearing on the accusation of his insolvent conduct and corrupt practice. 11. In our considered opinion, having regard to the grounds on which the appellant's assignment as BPM had been terminated, he ought to have been confronted with the materials bearing on the accusation of his insolvent conduct and corrupt practice. Though the participation of the appellant in the proceedings of the Performance Appraisal Committee dated 26.6.2009 has not been denied by him, it is not very clear as to whether the inputs in general as well as pertaining to his conduct of insubordination and corrupt practice were made known to him for his response. We, therefore, do not feel persua­ded to conclude that the impugned action, having regard to the grounds cited in support thereof, is sustainable in the facts and circumstances of the case. Though the appellant had been appointed as BPM initially for a period of six months, admitedly, on the expiry thereof he continued in the capacity and for intents and purposes the satipulations contained in the contarct initially executed on 4.6.2007 susbsisted on the date of termination thereof. In our view, having regard to the pre-conditiosn embodied in Clause-8 of the contract, no uncontrolled or unregulated power for the exercise thereof is conferred thereby and the invocation of this Clause has to be essentially in confirmity with the basic tenets of fairness in action. The fact that the appellant had been offered one month's pay does not absolve the respondent authorities of this obligation in law to ensure the validity of the action contemplated under Clause-8. We are, therefore, in general agreement with the proposition of law as laid down in the authorities cited at the Bar. 12. The impugned order of termination is, thus, interfered with. However, having regard to the office held by the appellant and the deficiencies/indictments against him, we refrain from directing his re-instatement as BPM. This is more so as the interference with the impugned decision has made been on the ground of fairness in action. The respondent authorities would offer all reasonable opportunities to the appellant to represent against the ground on which the impugned order of termination had been issued and, thereafter, record a decision on the issue. In view of the intervention made by this Court the process as ordered should be completed within a period of two months from the date of receipt of the certified copy of this order. 13. In view of the intervention made by this Court the process as ordered should be completed within a period of two months from the date of receipt of the certified copy of this order. 13. The appeal stands allowed to the extent indicated hereinabove. No costs.