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2021 DIGILAW 209 (TRI)

Debjani Deb Sarkar v. State of Tripura

2021-11-17

S.TALAPATRA

body2021
JUDGMENT Heard Mr. S Bhattacharjee, learned counsel appearing for the petitioner as well as Ms. N Chakma (Saha), learned counsel appearing for the respondents. 2. The petitioner, who was serving as Computer Assistant on contractual basis for strengthening of Routine Immunization Programme under State Health and Family Welfare Society, Tripura, has challenged the memorandum dated 03.02.2021 (Annexure-36 to the writ petition). 3. By the said memorandum, the petitioner has been terminated from her services w.e.f. 03.03.2021. There is no dispute that the petitioner was appointed on contractual basis and she was initially appointed for 11 months as Computer Assistant and from time to time, such engagement was renewed. Lastly, by the memorandum dated 01.04.2020 (Annexure–19 to the writ petition) her service was continued along with others for the period from 01.04.2020 till 31.03.2021. 4. In the said memorandum dated 01.04.2020 the following provision has been inserted: “Continuation of services under respective societies will henceforth be issued on the basis of Performance Appraisal System/Performance Appraisal Report (PAR) as decided by the authority for 1(one) year as per existing terms & condition.” 5. But by the impugned memorandum, before the said tenure has expired, the petitioner’s service has been terminated with effect from 03.03.2021. The said memorandum containing the order of termination is under challenge in this writ petition. 6. Mr. Bhattacharjee, learned counsel appearing for the petitioner, has contended that if the veil is lifted from the apparent facts which led to issuance of the said memorandum terminating the service of the petitioner, it will be transparent that the petitioner was transferred by the order dated 15.01.2019 to the office of the Chief Medical Officer, Sepahijala from her place of posting i.e. the office of the Chief Medical Officer, West Tripura. 7. It appears from the records that the petitioner did not join the new place of posting and she continued in her earlier place of posting and according to her, she was directed to continue in the previous place of posting by the Head of Office and DDO of her earlier office. 8. 7. It appears from the records that the petitioner did not join the new place of posting and she continued in her earlier place of posting and according to her, she was directed to continue in the previous place of posting by the Head of Office and DDO of her earlier office. 8. Be that as it may, the Mission Director NHM, Government of Tripura, issued a show cause notice on 31.08.2020 asking the petitioner to reply within three days from the date of receipt of that notice (Annexure-24 to the writ petition) why the appropriate disciplinary action should not be taken against her as she had violated the office order dated 15.01.2019. 9. The petitioner filed the reply on 02.09.2020 by stating inter alia that she was verbally permitted to work in her previous place of posting and she had discharged her duties and responsibilities there. 10. Further, she has stated in para 3 of the said reply dated 02.09.2020 (Annexure 25 to the writ petition) as follows: “3. That sir if I worked in violation of the transfer order dated 15.01.2019 then it would be obvious that salary would not be released in my favour. But as I was working on the basis of the verbal direction and decision of the authority salary was also released by the Head of Office and DDO from which act it is implied that my transfer order was stayed if not cancelled.” 11. Further, it appears that after the said reply, by the release order dated 04.09.2020 the petitioner was asked to join her new place of posting. Accordingly, the petitioner had joined in her new place of posting on 07.09.2020. But the petitioner had taken four days’ casual leave from 08.09.2020 to 11.09.2020 due to ‘family affairs’ but after expiry of the period from 08.09.2020 to 11.09.2020 she did not resume her duties in the new place of posting but had applied for extension of leave from 14.09.2020 to 13.10.2020 as for sudden transfer her children were suffering from illness and if the petitioner continued to discharge her duties at her new place of posting it would not have been possible on her that to take due care of her children. 12. 12. In response to her letter, addressed to the Chief Medical Officer, Sepahijala district for special leave for 30 days (Annexure 29 to the writ petition), the Chief Medical Officer who was occupying the position of the Chairman, Executive Committee, District Health and Family Welfare Society, sanctioned eleven days casual leave. 13. The petitioner was not entitled to further leave, as per the terms and condition of the engagement. The petitioner is only entitled to get casual leave for a period of twelve days and the petitioner is/was not entitled to any other leave. In that turn of events, on 09.10.2020 the petitioner made an application for her transfer to the Mission Director by detailing the mitigating circumstances with which she was confronted with. 14. On 27.10.2020, the petitioner was asked by the memorandum to reply why she was absent from the duties unauthorizedly w.e.f. 04.10.2020. In response to that, as it appears, the petitioner filed an application to the Chief Medical Officer, Sepahijala district on 28.10.2020 stating that she had filed an application for leave for thirty days on medical grounds w.e.f 23.09.2020 to 22.10.2020 and she had applied for more leave for her own illness w.e.f. 23.10.2020 to 21.11.2020. 15. Even after receipt of the communication from the competent authority that the petitioner is not entitled to any further leave, in the form of a reply to the memorandum dated 27.10.2020, the petitioner on 16.11.2020 (Annexure-34 to the writ petition) had stated that “she had come to know her medical leave was sanctioned only for eleven days i.e. up to 03.10.2020 and there had been no leave pending.” 16. The petitioner had seriously pressed again to grant her the leave, as applied. Again the petitioner filed an application to the Principal Secretary, Department of Health, Government of Tripura on 09.11.2020 seeking her transfer and posting in the Office of the Chief Medical Officer, West Tripura district so that she can perform better. 17. Thereafter, by the memorandum dated 03.02.2021, the petitioner has been terminated giving one month’s notice and making the termination order to be effective from 03.03.2021. 17. Thereafter, by the memorandum dated 03.02.2021, the petitioner has been terminated giving one month’s notice and making the termination order to be effective from 03.03.2021. The relevant part of the said memorandum dated 03.20.2021 (Annexure-37 to the writ petition) is reproduced hereunder for reference: “As per the last en-mass continuation of contractual staff working under NHM, Tripura issued vide Memorandum No.F.3(5-3782) FWPM/SHFWS/2019/09-42 dated 1st April, 2020 Smt. Debsarkar got continuation upto 31/03/2021 along with all other staffs of SHFWS. Now, the appropriate authority has decided to terminate/ discontinue her service from NHM Tripura after 03/03/2021. As per terms of the appointment i.e., the ‘appointment is purely contractual and liable to be terminated at any time without any reason thereof with 1(one) month notice or 1(one) month salary from either side’ as per Colum 5 of the table below, the Column 5 the effective date of termination has been provided of as 3rd March, 2021.” 18. Mr. Bhattacharjee, learned counsel has submitted that those conducts have been considered behind the back of the petitioner and as such, the termination order is not simplicitor one, it is driven by the consideration mala fide and behind the back of the petitioner. 19. Moreover, Mr. Bhattacharjee, learned counsel has submitted that in the initial engagement letter there was no clause of termination with one month’s notice or one month’s salary in advance. 20. For repelling the said of submission of Mr. Bhattacharjee, Ms. Chakma (Saha), learned counsel has at the outset pointed out that it is true that in the memorandum dated 27.02.2007 (Annexure-4 to the writ petition) by which the petitioner was initially appointed there is no clause of termination, but subsequently, while the renewal was made by the order dated 11.01.2008 (Annexure-7 to the writ petition) the following clause was added as condition of the engagement of the petitioner as contractual Computer Assistant. “3. The offer of continuation is liable to be terminated at any time without assigning any reason thereof with one month’s notice on either side.” 21. “3. The offer of continuation is liable to be terminated at any time without assigning any reason thereof with one month’s notice on either side.” 21. The said clause had continued in all orders of renewal subsequently including the order dated 27.12.2008 (Annexure-8 to the writ petition), the order dated 07.11.2009 (Annexure-9 to the writ petition), the order dated 27.09.2010 (Annexure-10 to the writ petition), the order dated 29.11.2011 (Annexure-11 to the writ petition), the order dated 09.10.2012 (Annexure-12 to the writ petition), the order dated 30.09.2013 (Annexure-13 to the writ petition), the memorandum dated 23.02.2015 (Annexure-14 to the writ petition), the memorandum dated 13.05.2016 (Annexure-15 to the writ petition) and finally, by the memorandum dated 01.04.2020 (Annexure-19 to the writ petition) the petitioner was engaged for further one year with effect from 02.04.2020 till 31.03.2020 and in the said memorandum it has been clearly stated that the existing terms and conditions will apply in respect of the said engagement. 22. Ms. Chakma (Saha), learned counsel has thus contended that the clause of termination had been quite unambiguously inserted as the term of engagement. Therefore, the petitioner’s plea that there is no such term in the engagement does not survive the test of scrutiny. 23. Ms. Chakma (Saha), learned counsel has submitted that the documents which have been submitted by the petitioner in respect of her absence were on the record but those conducts of the petitioner have not been reflected as the ground of termination in the impugned memorandum terminating the service of the petitioner. But the respondent does not deny those records reflecting to the unacceptable absence of the petitioner. According to her, the show cause notice was issued and it is apparent from the reply that cause are not satisfactory. 24. Thus, the allegation that the decisions were taken without the knowledge of the petitioner about her absence is completely unfounded. On the contrary, the records reflect that the petitioner was given opportunities to explain her absence. Thus, the allegation of mala fide shall fall flat. 25. Having appreciated the submission of the learned counsel for the petitioner, this court finds that no material has been taken into consideration against the petitioner which were not placed for the petitioner’s response. Whether the petitioner was performing satisfactorily or not, will be decided by the employer. Thus, the allegation of mala fide shall fall flat. 25. Having appreciated the submission of the learned counsel for the petitioner, this court finds that no material has been taken into consideration against the petitioner which were not placed for the petitioner’s response. Whether the petitioner was performing satisfactorily or not, will be decided by the employer. This court, yes, may lift the veil to find out whether any material has been taken mala fide against the petitioner for purpose of termination. 26. It may be stated here that lifting the veil is not the end of the matter. Only after lifting of the veil if it is seen that some materials were considered by the employer, which were not made known to the terminated employee or no opportunity was afforded to him/her for response and the employer was prompted by those to terminate the petitioner, in such circumstances the court may interfere. 27. But in the present case, the materials those are apparently utilized for assessment have been made known to the petitioner and placed for response. As such the competent authority was at liberty to take a decision on retention of the petitioner in the service. 28. Ms. Chakma (Saha), learned counsel has stated that the action of the respondent is not tainted by mala fide. Hence, this court does not find any infirmity in the order of termination. The said order of termination has been issued within the terms of the contract of engagement. No other premise subsists which may persuade this court to interfere with the order of termination. As consequence, this writ petition stands dismissed. There shall be no order as to costs.