Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 289 (GAU)

BONTI DUTTA v. STATE OF ASSAM

2014-03-11

UJJAL BHUYAN

body2014
JUDGMENT & ORDER (ORAL) Heard Mr. I Hussain, learned counsel for the petitioner and Mrs. M Hazarika, learned senior counsel for Guwahati Metropolitan Development Authority (GMDA). 02. By way of this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and correctness of the office order dated 02.04.2012 passed by the Chief Executive Officer, GMDA terminating the contractual service of the petitioner with immediate effect as per clause 12 of the contract agreement. 03. Learned counsel for the petitioner submits that petitioner’s husband was a regular employee in the GMDA, who died in harness on 20.07.2004. Though petitioner was given contractual appointment with effect from 01.10.2004, such appointment was virtually on compassionate ground and it was continued without any break. Referring to clause 12 of the agreement dated 27.09.2012, he submits that the said provision would be applicable in a case where the employee is found to be guilty of insubordination, misconduct, negligence of duty, non-cooperative attitude or violating any of the provisions of any of the rules of GMDA. Termination from service by invoking clause 12 of the agreement would, therefore, be stigmatic to the petitioner. No notice or hearing was granted to the petitioner before such termination and, therefore, the impugned order being in violation of the principles of natural justice is liable to be appropriately interferred with. 04. Mrs. Hazarika, learned senior counsel for the respondents, on the other hand, submits that the petitioner and the GMDA had entered into an agreement dated 27.09.2012 whereby and whereunder petitioner was appointed as Junior Assistant (LDA) from 25.06.2011 to 24.06.2012 on contractual basis. Petitioner is a signatory to the said contractual agreement. She has clarified that under clause 12 of the said contract agreement, GMDA is empowered to review the performance of the petitioner in relation to the specific works assigned at any time during the contract period. Accordingly, the service of the petitioner was reviewed and it was decided that her service was no longer required by the GMDA. She further submits that there is no provision in the GMDA to appoint anyone on compassionate ground. 05. I have heard learned counsel for the parties and also perused the materials on record. 06. Impugned order dated 02.04.2012 reads as under :– “The service of Smti Bonty Dutta, Jr. Asstt. She further submits that there is no provision in the GMDA to appoint anyone on compassionate ground. 05. I have heard learned counsel for the parties and also perused the materials on record. 06. Impugned order dated 02.04.2012 reads as under :– “The service of Smti Bonty Dutta, Jr. Asstt. is longer required in GMDA and her service contract is hereby terminated with immediate effect as per clause-12 of the Agreement. Further Smti Bonty is hereby asked to collect the salary of the current month on receipt of this order. She is directed to hand over all files & records to the Superintendent, GMDA.” 07. Since the impugned order has been issued in terms of clause 12 of the agreement dated 27.09.2012, the same is quoted here under :– “12. The contract with the First Party shall be terminated without previous notice by the Authority or its sub-ordinate authority duly authorized by the GMDA to do so if he is found guilty of any insubordination, misbehaviour, negligence of duty, non-cooperative attitude, intemperance of any of the provisions of these present or any rules pertaining to the branch of GMDA to which he may be assigned to. The GMDA reserves the right to review the performance of the party of the first part in relation to the specific works assigned at any time during the contract period”. 08. A careful reading of the said clause 12 would show that it comprises of two parts. While the first part deals with termination of service of the employee without previous notice by the GMDA on the ground of insubordination, misbehaviour, negligence of duty, non cooperative attitude or such other kind of misconduct, the second part deals with the right of GMDA to review the performance of the employee to enable the employer to make an assessment about further requirement of such employment. A perusal of the impugned order does not indicate that the service of the petitioner has been terminated on the ground of any misconduct. Mrs. Hazarika, learned senior counsel for GMDA has also made a statement at the bar, which is also buttressed by the materials on record that the termination of the petitioner is as per second part of clause 12 of the agreement. 09. Mrs. Hazarika, learned senior counsel for GMDA has also made a statement at the bar, which is also buttressed by the materials on record that the termination of the petitioner is as per second part of clause 12 of the agreement. 09. Accordingly, it is made clear that the petitioner has not been terminated from service because of any act of misconduct as contemplated in clause 12 of the agreement. 10. Admittedly, the employment period of the petitioner as per the contract agreement dated 27.09.2012 was for a period of 1 year from 25.06.2011 to 24.06.2012, which period has now expired. But it is evident that the impugned order dated 02.04.2012 was passed 2 months before expiry of the contractual period. Justification given for such pre-mature termination in the affidavit of GMDA is that service of the petitioner was no longer required. A reading of the agreement, more particularly clause 12 thereof, does not show that GMDA is vested with such power to summarily terminate the contractual service of the petitioner. On the other hand, clause 13 provides that contract service can be terminated by either party by giving 1 month’s prior written notice to the other party or on payment of 1 month’s salary in lieu thereof. Admittedly, no such prior notice or 1 month’s salary was given to the petitioner. 11. That being the position, impugned order dated 02.04.2012 cannot be sustained. The same is hereby set aside and quashed. Notwithstanding the above, since the period of contractual service was valid till 24.06.2012, this court refrains from issuing any direction for continuing with the service of the petitioner. However, considering the manner in which the petitioner was terminated from service, which has been held to be untenable and consequently interferred with by this court, she would be entitled to her contractual pay for the period from 02.04.2012 till 24.06.2012 i.e., for the remaining period of her contractual service. The same shall be paid within a period of 30 days from the date of receipt of a certified copy of this order. 12. It is also seen that clause 2 of the agreement provides that a fresh contract can be entered into between the parties on such terms and conditions and for such period as may be decided by the GMDA, if the GMDA requires the service of the petitioner. 12. It is also seen that clause 2 of the agreement provides that a fresh contract can be entered into between the parties on such terms and conditions and for such period as may be decided by the GMDA, if the GMDA requires the service of the petitioner. In view thereof, petitioner may approach the GMDA authority by filing appropriate representation within a period of 30 days from today. If such a representation is submitted within the period indicated above, GMDA authorities may consider the same in the light of the discussions made above. 13. Writ petition is accordingly disposed of.