Jan Saikia v. The State of Assam and 5 Ors

ORDER Date : 14.08.2023 Heard Mr. L. Gogoi, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned standing counsel for the P&RD, respondent nos.1 to 4 and 6; and Mr. A. Chakrabarty, learned Govt. Advocate appearing for respondent no.5.

¶2In view of the order proposed to be pass, the issuance of notice on the respondents is dispensed with.

¶3The impugned order of termination dated 28.03.2023, issued by the respondent no.2 is assailed in this writ petition filed under Article 226 of the Constitution of India.

¶4The learned counsel for the petitioner has submitted that the petitioner was appointed as a Computer Assistant on contractual basis vide order dated 27.02.2009. The petitioner had joined service on contractual basis on 02.03.2009 at the Lotak Gaon Panchayat, district Dhemaji. From time to time, the contractual appointment of the petitioner was extended and in the Page No.# 3/5 year 2018, the petitioner was transferred to Kachutali Gaon Panchayat and thereafter, he was transferred to Naharbari Gaon Panchayat in the district of Dhemaji.

¶5On 12.03.2023, the Controller of Examination, Board of Secondary Education, Assam had lodged an FIR in the CID Police Station to the effect that as per news telecast in a section of media, hand written model question paper of the HSCL Examination of General Science, which was to be held on

13.03.2023 was available in the hands of certain candidates. Accordingly, CID Police Station case no. 3/2023 was registered under section 120B/420/427/409 IPC read with section 66B of the Information Technology Act, 2000. Thereafter, the petitioner was arrested on 17.03.2023 by suspecting his involvement as one of the prime suspect. The petitioner was released on bail by order of this Court dated 12.05.2023, passed in Bail Appln. No. 1606/2023. However, the grievance of the petitioner is that his service was terminated by an order dated

28.03.2023 without issuing any show-cause notice to the petitioner and without complying with the principles of natural justice as the petitioner was not given an opportunity of being heard.

¶6The learned counsel for the petitioner has submitted that the principles relating to enquiry before termination as envisaged under Article 311(2) of the Constitution of India was not followed. It is submitted that the order of termination was stigmatic and therefore, principles of natural justice was required to be followed.

¶7Opposing the prayer made in this writ petition, it is submitted by the learned standing counsel for the P&RD that the petitioner was terminated by invoking clause-11 of the terms of contractual employment as Computer Assistant. The said clause is extracted below: Page No.# 4/5 "11. Termination of contract: The Agency reserves the right to terminate the contractual agreement at any point of time if it is found that the services rendered by the contractual staff is not satisfactory, or if it is found that any declaration of information furnished by him/her proves to be false or willfully suppressed, or if there is any breach of any of the terms and condition of this Term of Contractual Engagement, or if the contractual staff is found to be involved in any act of indiscipline or misconduct, or if the contractual staff is found to be involved in any act that may become embarrassing for the Agency, or if the contractual staff is absent from job for one week without any prior written sanction. In case funds are not available under the administrative contingency head from where the remunerations are paid, the contract may be terminated forthwith without any notice. The decision of the Agency in this regard shall be final and binding on the contractual staff and shall not be subject to challenge."

¶8Hence, it is submitted that as the conduct of the petitioner was found to be involved in an act which has become embarrassment for the respondent authorities, it was within the power of the respondent no.2 to terminate the service of the petitioner.

¶9The Court finds that in the terms of contractual employment of the petitioner as Computer Assistant, clause-2 of the said terms provides that "the contract may also be terminated without assigning any reason before the contract period by either party subject to giving one month's advance notice to the other party". Moreover, as indicated in clause-11 of the agreement, in view of the arrest of the petitioner in connection with the CID Case no. 3/2023, it cannot be said that the conduct of the petitioner could not have been found to be embarrassing by the respondent authorities.

¶10As the service of the petitioner is terminable by giving one month's notice, the Court finds that the petitioner is disentitled to the relief of his contractual service being restored in view of the provision of section 14(d) of the Specific Relief Act, which provides, inter alia, that a contract which is in its nature determinable are contracts which are not specifically enforceable. Page No.# 5/5

¶11Therefore, the Court is of the considered opinion that under the fact and circumstances of this case, the petitioner is not entitled to any relief.

¶12Hence, this writ petition stands dismissed at the motion stage without issuance of notice on the respondents.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010176972023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4632/2023o JANoSAIKIAo S/O-oSRIoMOHIRAMoSAIKIA,oVILL-oSANTINAGAR,oGOGAMUKH,oP.O.-o GOGAMUKH,oP.S.oDHEMAJI,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo5oORSo TOoBEoREPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM,oPANCHAYAToANDoRURALoDEVELOPMENTo DEPARTMENT,oDISPUR,oGUWAHATI-o781006 2:THEoCOMMISSIONER oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oJURIPAR oSIXMILE oGUWAHATI-22 3:THEoDIRECTOR oTHEoSTATEoINSTITUTEoOFoPANCHAYAToANDoRURALoDEVELOPMENTo DEPARTMENT oG.S.ROAD oKHANAPARA oGUWAHATI-22 4:THEoPROJECToDIRECTOR oDRDA oDISTRICT-oDHEMAJI oASSAM 5:THEoDISTRICToCOMMISSIONER oDHEMAJI oDIST.-oDHEMAJI Page No.# 2/5 ASSAM 6:THE NAHARBARI GAON PANCHAYAT UNDER THE SISSIBORGAON DEVELOPMENT BLOCK REPRESENTED BY ITS SECRETARY VILL- NAHARANI P.O. GOGAMUKH DIST.- DHEMAJI ASSA Advocate for the Petitioner : MR. L GOGOI Advocate for the Respondent : SC, P AND R.D. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA