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2018 DIGILAW 193 (GAU)

MD. IKRAM ALI HAZARIKA v. STATE OF ASSAM

2018-02-01

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Dr. B Ahmed, the learned counsel for the petitioner and Ms. A Bora, the learned Standing Counsel for the National Rural Health Mission (NRHM) who appears for the respondent Nos. 3, 4 and 5. None appears for the respondent Nos. 1 and 2 i.e., Health & Family Welfare Department. 2. The case of the petitioner in brief is that he was appointed as a Cashier in the Office of the Mission Director, NRHM, Guwahati vide order dated 29.05.2007 (Annexure-1). The appointment was on contract basis requiring the petitioner to sign the terms of the contract within 15 days. Pursuant to his appointment, the petitioner joined the post and was working as such until a show cause notice was issued to him on 03.08.2013 (Annexure-2) . The show cause notice was issued by the Mission Director, NHM alleging that the petitioner failed to maintain manual cash book for the financial year 2012-2013 and 2013-2014. Further, it was stated that the petitioner did not deposit before the authorities concerned the income tax, VAT and Forest Royalty which were deducted from the bills since March 2009. He also failed to produce vouchers amounting to Rs.7,33,46,473/- as was raised by the PAG in their inspection report. He was therefore asked to show cause within 7 days of receipt of the notice as to why disciplinary action should not be taken against him for his casual attitude. 3. Upon receiving the show cause notice, the petitioner submitted his reply to the Mission Director, NRHM on 08.08.2013 (Annexure-3). By the said reply, the petitioner gave a detailed explanation on the allegation that was made against him. The petitioner over and above stated that he had not done any wrong intentionally and therefore if any fault was found, the same being for the first time, he may be excused. The petitioner also undertook to submit manual cash books monthly with Tally BRS regularly without fail. The Mission Director upon considering the reply of the petitioner dated 08.08.2013 did not find a satisfactory reply. However, he directed the petitioner to complete all the pending works including the cash book, preparation of BRS on monthly basis, deposit the pending statutory dues and meet the requirement of auditor by supplying records and he warned the petitioner not to repeat the short comings in future. However, he directed the petitioner to complete all the pending works including the cash book, preparation of BRS on monthly basis, deposit the pending statutory dues and meet the requirement of auditor by supplying records and he warned the petitioner not to repeat the short comings in future. The same was communicated to the petitioner in the form of a warning notice on 02.09.2013 (Annexure-4) . 4. Subsequently, the Mission Director, NHM vide notice of termination dated 27.04.2015 (Annexure-16) terminated the service of the petitioner w.e.f. the afternoon of 27.04.2015 with a salary of one month as per the terms of contract. In the termination notice, it was indicated that the petitioner was warned for sub-optimal performance vide the warning notice dated 02.09.2013. But inspite of that, it was found that a large number of beneficiary cheques under the NHM for compensation were kept pending for disbursement and the validity of the cheques got expired. The Director, Finance and Accounts, NHM observed that the reply furnished by the petitioner for not making payment to the beneficiary in time was not found to be satisfactory. Therefore his performance not being satisfactory, it was not upto the level of mission mode working requirement under the NHM, Assam. Therefore, the petitioner was terminated from his appointment. 5. Soon after the petitioner was terminated, the Mission Director, NHM issued an advertisement for the post of Cashier vide Advertisement dated 29.05.2015 (Annexure-7) which according to the petitioner was only an ulterior motive to appoint some other person in place of the petitioner. The petitioner however, before issuance of the Advertisement submitted a representation before the Mission Director, NHM against his termination on 28.04.2015 (Annexure-8). In his representation, the petitioner stated that the delay in obtaining the Account Payee Bank Draft in favour of the beneficiary was only due to the concerned file being routed through several tables for necessary checking. The delay in revalidation of the cheques was also due to the Director, Finance and Accounts instructing him to put up the same through file. Therefore, the petitioner stated that he was not responsible for the delay. The grievance of the petitioner having not been considered by the respondents concerned, he has filed the present writ petition. 6. Dr. The delay in revalidation of the cheques was also due to the Director, Finance and Accounts instructing him to put up the same through file. Therefore, the petitioner stated that he was not responsible for the delay. The grievance of the petitioner having not been considered by the respondents concerned, he has filed the present writ petition. 6. Dr. B Ahmed, the learned counsel for the petitioner at the outset submits that a bare perusal of the impugned termination notice would show that it is punitive and there is stigma attached to it. It is not a termination simpliciter but a termination on account of certain allegations made against the petitioner. He submits that the petitioner may only be a contract employee but at the same time if there are allegations for which he was terminated, the minimum requirement of law would be to give him a reasonable opportunity to answer and defend himself against such allegations by initiating a department proceeding. The respondents having terminated the service of the petitioner abruptly vide the notice of termination dated 27.04.2015 has clearly infringed upon his Fundamental Rights as guaranteed by Article 14 of the Constitution of India and also his rights under Article 311 (2) of the same Constitution. He therefore submits that the impugned notice of termination is unsustainable requiring appropriate interference of this Court. 7. Dr. B Ahmed further submits that in a case of similar nature wherein a contractual employee under the NHM was terminated from service, this Court was pleased to set aside the impugned termination order while giving backwages to the petitioner therein. However, liberty was granted to the respondents to proceed against the petitioner in accordance with law if so advised. The said decision was rendered by a coordinate Bench of this Court vide Judgment and Order dated 29.03.2013 in WP (C) No. 6892 of 2016 (Ikshwaku Saikia Vs. State of Assam & 6 Ors.) . He therefore submits that the case of the present writ petitioner being similar, the writ petitioner should be disposed of in similar lines. In addition, Dr. B Ahmed places his reliance upon the following Judgments rendered by the Apex Court as well as the High Court: (1) (1983) 1 SCC 228 , National Textile Workers Union & Ors. Vs. P.R. Ramkrishnan & Ors. (2) (2008) 8 SCC 725 , Dev Dutt Vs. Union of India & Ors. In addition, Dr. B Ahmed places his reliance upon the following Judgments rendered by the Apex Court as well as the High Court: (1) (1983) 1 SCC 228 , National Textile Workers Union & Ors. Vs. P.R. Ramkrishnan & Ors. (2) (2008) 8 SCC 725 , Dev Dutt Vs. Union of India & Ors. (3) (2009) 14 SCC 690 , Prakash Ratan Sinha Vs. Union of India & Ors. (4) (2000) 5 SCC 152 , Chandra Prakash Shahi Vs. State of UP & Ors. (5) WA No.5323 of 2016, Sandip Tamoly Vs. Union of India & Ors. (Allahabad High Court) 8. Appearing for the NHM, Ms. A Bora by referring to the affidavit-in-opposition filed by the respondents on 18.09.2015 submits that as per the terms of reference for the post of Cashier, the first assignment is to write the monthly manual cash book as the cash book reflects the various transaction in the form of cheques or cash payment and therefore the inability expressed by the petitioner that he could not prepare and write manual cash book cannot be accepted. She submits that on account of the inability of the petitioner to maintain the manual cash book, the respondents concerned had to avail the service of one Sri Prabhat Kumar Das of the same establishment. The learned counsel further submits that it is the responsibility of a cashier to collect the bank drafts on being prepared by the Bank, its safe custody and immediate dispatched without delay since the validity of cheque or demand draft is ordinarily for three months from the date of issue. Therefore, the petitioner is clearly aware about the validity period of cheques and so due care and responsibility should be taken by him to pursue the file concerned at different stages and make clarifications if so required without delay. Therefore, the petitioner having failed to discharge his duties and responsibilities, his service had to be terminated. 9. The learned counsel also submits that since the post of cashier is an essential post under the NHM for smooth functioning of the office and as there were two vacant posts, the respondents had to issue the Advertisement and for any other reason. 10. Ms. 9. The learned counsel also submits that since the post of cashier is an essential post under the NHM for smooth functioning of the office and as there were two vacant posts, the respondents had to issue the Advertisement and for any other reason. 10. Ms. A Bora, the learned counsel further submits that the terms of contract, more particularly, condition No.9 clearly stipulates that the contract of the party may be terminated at any time by Mission Director if the performance of the party is found to be unsatisfactory or below the minimum expected level or if the party is found to be fuilty of any insubordination, dereliction of duty or any misconduct. Therefore, the respondent authority concerned has only acted within the terms of the contract governing the contract service of the petitioner and therefore, no interference of the impugned termination notice is called for. She further submits that contract service of all the employee under the NHM are for specific period and such engagements are extended from time to time. That in respect of the period of engagement of the petitioner along with other employees of the NHM, the last extension was made vide order dated 13.7.2012 (which she has produced) for a period of 5 years w.e.f. 01.04.2012 to 31.03.2017. Therefore, the contract period for engagement of the petitioner having also expired as on 31.03.2017, petitioner cannot have any substantive grievance and the writ petition should be dismissed. 11. I have considered the submissions advanced by the learned counsel for rival parties and I have perused the materials available on record. From the case projected by the parties, what requires to be considered and decided is as to whether the service of the petitioner could have been terminated in the manner it was done and as to whether the impugned termination is illegal, arbitrary and infringes the Fundamental and Constitutional rights of the petitioner. A perusal of the notice of termination would indicate that warning given to the petitioner for his sub-optimal performance on earlier occasion was taken into consideration. The non-satisfactory performance on earlier occasion as well as for the period subsequently were the reasons for termination of his service. A perusal of the notice of termination would indicate that warning given to the petitioner for his sub-optimal performance on earlier occasion was taken into consideration. The non-satisfactory performance on earlier occasion as well as for the period subsequently were the reasons for termination of his service. The respondent No.3 in his affidavit-in-opposition, more particularly at paragraph No.13 has stated that the termination of the petitioner was due to his negligence, dereliction of duty and failure to discharge his primary duty as a Cashier. This statement is said to be true to the knowledge of the respondent No.3. In the case of Chandra Prakash Shahi (supra) referred to by the learned counsel for the petitioner, the Apex Court while considering the sustainability of a termination simplicitor given to a probationer as extensively examined the law in this regard. The Apex Court observed that termination simplicitor of a temporary Government servant on the ground of unsuitability does not attract the provision of Article 16 and Article 311 of the Constitution available to a temporary Government Servant unless the termination involved "stigma". Court or Tribunal is entitled to find out the true nature of the termination order, namely, whether it is punitive or not. In this regard, the form of the order will not be decisive and the Court can lift the veil to see the true nature of the order. Substance, not semblance, governs the decision. What is decisive is the plain reason for the discharge and not the strategy of a non-enquiry. If the basis was not the misconduct, the order could be saved. The Court further observed that the mere fact that after being satisfied of the guilt, the Government abandons the enquiry and proceeds to terminate the services by a simple order, would not be the relevant factor in considering the true nature of the order. The State, or for that matter, any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is effected. The petitioner on giving his reply to the show cause was given an warning not to repeat the shortcomings in future. The petitioner on giving his reply to the show cause was given an warning not to repeat the shortcomings in future. Thereafter, in the notice of termination, not only the observation made in the show cause notice dated 03.08.2013 but also the warning notice dated 02.09.2013 were taken into consideration. Additionally, the performance of the petitioner was not found to be satisfactory and for which, it was found fit that he be terminated from service. The reason why the petitioner was not found fit has been substantiated in the affidavit-in-opposition of the respondent No.3 as may be noticed. It is the contention of the respondent No.3 that termination was on account of negligence, dereliction of duty and failure to discharge primary duties as a Cashier by the petitioner. Against such allegation, no show cause notice was issued to the petitioner prior to the issuance of the notice of termination so as to given him an opportunity to explain or for the employer to find out whether such allegation were founded. No doubt, condition No.9 of the terms of contract enables the Mission Director, NHM to terminate the service of the employee concerned on being found unsatisfactory. But nevertheless, the ultimate decision to terminate the service of an employee when certain allegations are made will have to be preceeded with an opportunity to the employee concerned in the form of a show cause notice. It is seen that such opportunity was not afforded to the petitioner and therefore, notwithstanding condition No.9 of the contract agreement, the termination of the petitioner from service only appears to be stigmatic and therefore unsustainable. Upon appreciation of the case in its entirety, it is found that the order of termination of the petitioner was on account of the alleged act of misconduct and therefore punitive in nature. Therefore, the impugned notice of termination dated 27.04.2015 is hereby set aside and quashed. 11. Ordinarily, upon such interference, reinstatement of the petitioner would be warranted but however, seeing that the period of the contract employment of the petitioner had he not been terminated would have lasted only upto 31.03.2017 and therefore, there shall be no order for his reinstatement and liberty to the respondents to proceed against him in accordance with law. The respondents shall however be at liberty to engage the petitioner if so advised. The respondents shall however be at liberty to engage the petitioner if so advised. The petitioner shall be entitled to backwages from the date of his termination upto 31.03.2017. 12. Having decided as above, dealing upon the other authorities, relied upon by the learned counsel for the petitioner is found unnecessary. 13. With the above observation and direction, the writ petition is disposed of.