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2016 DIGILAW 1126 (GAU)

Sahidur Rahman v. State of Assam

2016-12-14

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Mr. M.J. Baruah, learned counsel for the petitioner and Mr. S. Sarma, learned counsel appearing for respondent Nos.2 and 3. Also heard Mr. G. Sarma, learned counsel appearing for respondent No.1. None appears for respondent No.4, although by the office note dated 2.03.2013 notice upon respondent No.3 had been duly served. 2. The case of the petitioner is that, he was working as District Project Engineer under the Sarba Sikha Abhhiyaan (SSA), Assam and he was last working in the same capacity in the district of Cachar. It is stated that the petitioner had an unblemished service career for long 14 years since 2002 when he had joined SSA as Junior Engineer. It is the case of the petitioner that while he was working in the Cachar, the petitioner had raised certain objections and allegations against the then Mission Co-ordinator of SSA, Cachar, namely, Shri Nibaran Das, who is impleaded as respondent No.4 by name in this writ petition. 3. Consequent to raising such serious allegations and objections against the respondent No.4, the said respondent No.4 started threatening the petitioner of implicating him in false and serious cases by stating that the said Mission Director SSA had good relation with the Mission Coordinator of SSA. 4. It is the case of the petitioner that by the order dated 18.01.2012 of the Mission Director, SSA Assam, which is annexed as Annexure-4 to the writ petition, Shri Kabiluddin Ahmed, Assistant Inspector of Schools and I/c District Elementary Education, Assam Officer at Cachar was allowed to take over charge of the District Coordinator, SSA Cachar from the respondent No.4 Shri Nibaran Das with immediate effect. In the note of the said order, it has been clearly stated that the respondent No.4 Nibaran Das is requested to hand over charge of the District Mission Coordinator, SSA Cachar to Shri Kabiluddin Ahmed immediately. It is also provided that Shri Kabiluddin Ahmed is directed to take over charge of the District Coordinator, SSA Assam from the respondent No.4 Shri Nibaran Das immediately until further order. 5. It is also provided that Shri Kabiluddin Ahmed is directed to take over charge of the District Coordinator, SSA Assam from the respondent No.4 Shri Nibaran Das immediately until further order. 5. It is the case of the petitioner that in spite of the order dated 18.01.2012 requiring the respondent No.4 to hand over charge of the District Mission Coordinator with immediate effect, the said respondent No.4 had filed an ejahar bearing No.DMC/SSA/Disc.Action/2012/6056 dated 06.02.2012 before the Officer-In-charge of Silchar Sadar Police Station inter-alia raising certain allegations against the petitioner. One of the allegations made in the ejahar was that during the year 2011-2012 a number of schools have been allowed by him without having any agreement with the District Mission Coordinator for his vested interest which may create a lot of problem from the financial point of view of building grants etc. It has also been alleged that the petitioner had directed completion of survey of some school buildings without they are being actually constructed. 6. Subsequent thereto, by the impugned order No.SSA/CW/GM/Cachar/2003/01/514 dated 18.02.2012 under the signature of the Mission Director, SSA, service of the petitioner was terminated with immediate effect by stating it to be as per Clause-5 and 6 of the agreement. Being aggrieved, by the said impugned order of termination from service dated 18.02.2012, the petitioner prefers this writ petition. 7. Mr. S. Sarma, learned counsel appearing for respondent Nos.2 and 3 by referring to the affidavit-in-opposition filed on behalf of the respondent Nos.2 and 3 dated 26.07.2013 states that service condition of the petitioner is governed by a set of rules, namely, SSA Mission, SSA Rules and Financial Rules, 2003. As per the said rules, employees engaged by the SSA, Assam are required to enter into an agreement with the employees of SSA, Assam and under the said rules, there is no provision for promotion of junior engineer to the post of District Project Engineer. It was stated that the petitioner during his tenure as the District Project Engineer was quite irregular and negligent in his duties and he even had financial liabilities towards the SSA on the date of his release. 8. It was stated that the petitioner during his tenure as the District Project Engineer was quite irregular and negligent in his duties and he even had financial liabilities towards the SSA on the date of his release. 8. Shri Sarma, learned counsel for the respondent Nos.2 and 3 further refers to paragraph 6 of the affidavit-in-opposition wherein it is stated that although the petitioner had brought the allegation against the then District Mission Coordinator Shri Nibaran Das i.e., respondent No.4 but actually the petitioner is involved in corruption like mis-appropriation of SSA funds for building construction and other irregularities for which FIR was lodged against him in Silchar Sadar Police Station. It was stated that with a view to save himself in the eye of law the petitioner mentioned such imaginary and baseless statements against the District Mission Coordinator, namely, Nibaran Das. In paragraph 8 of the affidavit-in-opposition, it has also been stated that the respondent No.4, namely, Nibaran Das has duly handed over the charge to the respondent No.3, namely, Kalim Uddin Ahmed on 10.02.2012. 9. In view of the above narration of facts, it may be noticed that by the order dated 18.01.2012 of the Mission Director, SSA, the respondent No.4 Nibaran Das was required to hand over charge as District Mission Coordinator SSA Cachar with immediate effect. The note of the said order also stated that he has requested to hand over charge to Shri Kabiluddin Ahmed immediately and Shri Kabiluddin Ahmed is directed to take over charge from the respondent No.4, Nibaran Das immediately until further order. 10. In view of the above provisions of the order dated 18.01.2012, it is not understood as to how the respondents are justifying in their affidavit-in-opposition in paragraph 8 that the respondent No.4 had duly handed over charge to respondent No.3. In the background that there are serious allegations and objection against the said respondent No.4, it is not understood as to how the respondent No.4 was allowed to continue in the post of District Mission Coordinator up-to 21.02.2012, although the required him to hand over charge immediately. No information is forthcoming as to why the respondent against whom there is serious allegation was allowed to continue as such. 11. No information is forthcoming as to why the respondent against whom there is serious allegation was allowed to continue as such. 11. But what is relevant is that, the said respondent No.4 by taking advantage of not complying with the order dated 08.02.2012, requiring him to hand over the charge immediately, had filed a FIR dated 06.02.2012 raising certain allegations against the present writ petitioner. What is even more noticeable is that, the petitioner had been terminated from his service on the basis of such FIR dated 06.02.2012 filed by the respondent No.4. Although certain assertions had been made in the impugned order dated 18.02.2012 that the petitioner did not extend his cooperation during the field visit of District Mission Coordinator, SSA Cachar during which many irregularities of construction works have been revealed and the petitioner did not show cause for his negligence of duty, poor performance etc., but nothing has been brought on record to substantiate such assertions made on the impugned order dated 18.02.2012. 12. Be that as it may, the petitioner by holding the post of District Project Engineer was holding a civil post under the state. Although the appointment of the petitioner may have been contractual appointment but the impugned order of termination had taken place during the tenure of his service and as such, it is the requirement of law that required procedure for termination of service pursuant to holding of a civil post be followed. 13. It is submitted by Shri Sarma that, at the relevant point of time, when the service of the petitioner was terminated, the Assam Services (Discipline and Appeal) Rules, 1964 was not made applicable in respect of the employees of the SSA, although it is submitted that subsequently from the year 2015 the said rules had been made applicable. But, be that as it may, even if the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 was not made applicable in respect of the petitioner, but still it cannot be construed that the respondent authorities had an unbridled and unfettered power to terminate the service of employees on there own whims and fancies. As already held, the petitioner having served as District Project Engineer was holding a civil post under the State. It is not disputed by the respondent No.4 extent that the petitioner was not holding a civil post under the State. As already held, the petitioner having served as District Project Engineer was holding a civil post under the State. It is not disputed by the respondent No.4 extent that the petitioner was not holding a civil post under the State. Accordingly, the petitioner is entitled to a protection under article 311 (2) of the Constitution of India which inter-alia provides that, no person holding a civil post under the State shall be dismissed or removed or reduced in rank except after enquiry in which he has been informed of the charge against him and given a reasonable opportunity of being heard in spite of this charge 14. In the instant case, on a bare perusal of the impugned order of termination dated 18.02.2012, it is apparent that no such procedure of informing the petitioner about any of the charges against him or giving him a reasonable opportunity of being heard is discernible. Neither the affidavit-in-opposition of the respondent Nos.2 and 3 indicates that any such procedure was followed, nor the counsel for the respondent SSA can point out anything from the records that such procedure of informing the charges and giving the opportunity had been followed in the case of the petitioner. 15. In view of the aforesaid conclusion, the impugned order of termination dated 18.02.2012, is vitiated and not sustainable in law. 16. Although in the impugned order of termination it has been mentioned that the termination had been given effect as per the Clause-5 & 6 of the agreement, but a bare reading of the clause-5 of the agreement, shows that the services of employees may be terminated at any point, if it is found that the services rendered by such employees are unsatisfactory or if there is any breach of terms of the agreement and the decision of the District Mission Coordinator as to whether the services rendered by the employees are satisfactory or there has been any breach of terms of agreement shall be final and binding on the parties and shall not be subject to any challenge. 17. Clause 6 of the agreement provides that it will be open to either party to terminate this agreement by giving a 30 days notice to other party in writing or by paying one month's remuneration in advance in lieu of notice. 17. Clause 6 of the agreement provides that it will be open to either party to terminate this agreement by giving a 30 days notice to other party in writing or by paying one month's remuneration in advance in lieu of notice. The provisions of clause 5 and 6 cannot be interpreted that the Mission Director has unbridled power to terminate the services of employees without their being any reason. Unsatisfactory performance and breach of the terms of agreement which may be reason for termination under Clause-5 requires a subjective satisfaction of the authorities that the performance is unsatisfactory and that there was a breach of the terms of the agreement. 18. In the instant case, nothing has been indicated that there was an unsatisfactory performance of the petitioner or there was a breach of terms of the agreement. 19. Accordingly, this Court is of the view that in the absence of such preeciding events, clauses 5 and 6 of the agreement does not give the Mission Director any unbridled power to terminate the service of the petitioner without there being any subjective satisfaction. In any view of the mater, the provisions of clause 5 and 6 of the agreement cannot have an overriding effect s on the provisions of Section 311 (2) of the Constitution of India. It is the considered view of this Court that if termination of service of an employee in exercise of the provisions of clause 5 and 6 of the agreement is to be given effect, the provision of Article 311 would necessarily have to be followed, in case the employee hold a civil post. 20. In such view of the matter as no such procedure provided under Article 311 (2) of the Constitution of India had been followed, this Court is of the view that the impugned order of termination dated 18.02.2012 is vitiated and unsustainable 21. In such view of the matter, the impugned order of termination dated 18.02.2012 is hereby set-aside. However, it is provided that if the respondent authorities are seriously of the view that there are allegations against the petitioner which requires action to be taken against him, the same may be proceeded by following due procedure of law. 22. The writ petition is disposed of in view of the above terms. 23. However, it is provided that if the respondent authorities are seriously of the view that there are allegations against the petitioner which requires action to be taken against him, the same may be proceeded by following due procedure of law. 22. The writ petition is disposed of in view of the above terms. 23. It is needless to say, the implication of impugned order of termination is that the petitioner would now be deemed to be in service. In view of the opportunity given to the respondents to proceed against the petitioner, as per the law if so advised, and in the event, the authorities are of the view that it is necessary to proceed against the petitioner, the petitioner can be deemed to be under suspension.