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2017 DIGILAW 1150 (GAU)

Asimjyoti Dutta v. Union of India

2017-08-22

ARUP KUMAR GOSWAMI

body2017
ORDER : 1. Heard Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. P. Baruah, learned Central Government counsel, appearing for all the respondents. 2. The case of the petitioner, as projected in the writ petition, is that an advertisement was issued sometime in the year 2011 calling for applications from the intending and qualified candidates to fill up the post of Surveyor for the ASI-NCF-ONGC Project at Ahom Monuments, Sivasagar. The petitioner had responded to the said advertisement and after an interview process, he was selected and appointed as Surveyor vide order dated 21.1.2012 for a period of 6 months on monthly remuneration of Rs. 25,000. While serving as such from the month of February, 2012, the petitioner was called back to Guwahati and was directed to proceed to Mizoram along with a team for making unified map/site plan and total survey of Vangchhia for protection of menhirs and caves at Vangchhia. 3. On 29.4.2013, a letter was issued to the petitioner requiring him to submit the cartographic site plan and data as his contract period would expire on 30.4.2013. It is averred that the petitioner actually worked till August, 2013 and salary for the period up to June, 2013 had been released. On 4.9.2013, a complaint was lodged by one Rajeev Kausha, Surveyor Grade I before the respondent No. 3 alleging that the petitioner had not handed over and submitted the survey equipments and site plan, etc., even after expiry of his contractual period. The petitioner had replied back vide his letter dated 11.9.2013 informing the authorities that the equipments, etc. had already been submitted. 4. An affidavit-in-opposition was filed by the respondent Nos. 2 and 3 stating that the petitioner was engaged for a minimum period of 6 months keeping the scope for extension of such contractual engagement as per job requirement and after expiry of the aforesaid period of engagement of 6 months from the date of joining, his services had been extended as per requirement of the respondents. It is stated that as the engagement of the petitioner was purely contractual, the question of termination did not arise and that the petitioner is not entitled to any remuneration, save and except, what is provided for in the order of engagement. 5. Mr. It is stated that as the engagement of the petitioner was purely contractual, the question of termination did not arise and that the petitioner is not entitled to any remuneration, save and except, what is provided for in the order of engagement. 5. Mr. Sarma, has submitted that the respondent-authorities had illegally terminated the service of the petitioner without serving any notice and, therefore, on the ground of violation of the principles of natural justice, the writ petition deserves to be allowed. It is submitted that the petitioner was paid his salary for the months of February 2012 to June 2013 but though he had continued up to August 2013, salary for the months of July and August 2013 was not paid. Drawing the attention of the court to the letter dated 29.4.2013, it is pointed out by him that the authorities were labouring under a misconception of fact that the contract period of the petitioner had commenced from November 2012. Accordingly, he prays for setting aside the order dated 29.4.2013 and to reinstate the petitioner in service with all back wages. 6. Ms. Barua, has submitted that the engagement of the petitioner was for a minimum period of six months and he was engaged on contractual basis and that the engagement was to continue till such time the authorities needed his service. The appointment of the petitioner being contractual, the prayer made by the petitioner for re-instatement in service with back wages does not arise, she contends. Ms. Baruah, learned Central Government counsel has also placed before the court some documents in respect of payment of remuneration to the petitioner, which are also shown to Mr. Sarma. 7. I have heard the learned counsel for the parties and have considered the materials on record. 8. A perusal of the order dated 21.1.2012 will go to show that the engagement of the petitioner was for a minimum period of six months from the date of his joining on a monthly remuneration of Rs. 25,000 and apart from the said monthly remuneration, he would not be entitled to any perquisite, such as HRA, DA, CCA, telephone, transport facilities or residential accommodation, etc. 9. 25,000 and apart from the said monthly remuneration, he would not be entitled to any perquisite, such as HRA, DA, CCA, telephone, transport facilities or residential accommodation, etc. 9. Though the order dated 21.1.2012 does not use the expression contractual, the nature of the engagement would clearly indicate that it was an engagement on contractual basis on a fixed monthly remuneration for a minimum period of six months. 10. In the reply affidavit to the affidavit of respondent Nos. 2 and 3, the petitioner stated that there was no official order extending his engagement beyond the period of six months. Materials on record indubitably show that notwithstanding the impugned order dated 29.4.2013, the petitioner had continued to work beyond 30.4.2013. The petitioner had made categorical statement in paragraph 11 that he continued to work till the month of August 2013, Such statement is not denied in the affidavit of respondents. 11. Documents furnished by Ms. Barua, go to show that the petitioner was paid salary for a period of 8 days for the month of July 2013. The aforesaid document would go to show that salary for the period from March 2013 to July 2013 (8.7.2013) amounting to Rs. 1,27,742 with the deduction of Rs. 5,000, totalling Rs. 1,22,742 was received by the petitioner on 13.9.2013. It also appears there from that though initially the amount of remuneration was fixed at Rs. 25,000, the same was enhanced to Rs. 30,000. However, neither the petitioner nor the respondents had stated so in their respective pleadings. Why the payment was made up to 8.7.2013 is also not clarified by the respondents. Fact remains that assertion of the petitioner that he continued to work till August 2013 has gone un-rebutted. 12. The relevant portion of the order dated 29.4.2013 reads as follows: “It is to inform you that your contract period of six months from November, 2012 onwards would be expired on 30.4.2013 as given by the Project Implementation Committee held on 31.8.2012. Therefore, you are instructed to submit all the cartographic site plans and other survey data prepared by you under ASI-NCF-ONGC Project along with Total Station Survey Instrument to this office immediately.” 13. Apparently, there is a mistake in the said order in the sense that the petitioner had joined in the month of February, 2012 and not in the month of November, 2012. Apparently, there is a mistake in the said order in the sense that the petitioner had joined in the month of February, 2012 and not in the month of November, 2012. But what could not be lost sight of the fact is that it was specified that the contract period would expire on 30.4.2013. Nevertheless, it appears that the petitioner was allowed to continue beyond 30.4.2013. The position that has emerged, going by the version of the petitioner, that his engagement was not continued beyond August 2013. As indicated earlier, the engagement of the petitioner was to be for a period of not less than six months. Materials on record indicate that such extension beyond six months was continued from time-to-time without there being any formal order of extension. 14. A termination of service brought about by the exercise of contractual right is not by itself dismissal or removal. It is also not the case of the petitioner that anybody had been engaged in his place. The respondents in their affidavit stated that the petitioner's engagement was for a specific purpose and so long the purpose was not served, the engagement of the petitioner had continued. The contention of Mr. Sarma, that the principle of natural justice has been violated does not appeal to the court having regard to the nature of engagement. 15. It is settled law that no declaration to enforce a contract of personal service will be normally granted. A court normally would not give a declaration that the contract subsists and the employee, even after having been terminated from service can be deemed to be in service against the will of the employer. 16. In absence of any rebuttal it must be held that the petitioner continued to be engaged till August 2013. It has been wrongly indicated in the affidavit of the respondent Nos. 2 and 3 at paragraph 8 that the petitioner had acknowledged receipt of monthly remuneration up to July, 2013. In the writ petition, there is no such acknowledgement with regard to receipt of monthly remuneration up to July 2013. However, as indicated earlier, the petitioner was paid for 8 days in the month of July, 2013. 17. In view of the above discussion, the prayer for re-instatement of the petitioner in service along with payment of back wages cannot be acceded to. However, as indicated earlier, the petitioner was paid for 8 days in the month of July, 2013. 17. In view of the above discussion, the prayer for re-instatement of the petitioner in service along with payment of back wages cannot be acceded to. However, as the statement of the petitioner that he continued to be engaged till August, 2013 had not been disputed by the respondents, the petitioner will be entitled to the remuneration for the period from 9.7.2013 to 31.8.2013. 18. The respondents are directed to pay the amount payable within a period of six weeks from today. 19. The writ petition stands disposed of. No cost.