Dr. Subhajit Dhar v. Society for Tripura Medical College and Dr. B.R. Ambedkar Memorial Teaching Hospital and 2 Ors

Judgment & Order (ORAL)

10/07/2023

Heard Mr. BN Majumder, learned senior counsel assisted by Mr. DJ Saha, learned counsel for the petitioner. Also heard Mr. D. Bhattacharjee, learned GA assisted by Mr. S. Saha, learned counsel for the respondents.

¶2It is the case of the petitioner that he was appointed on contract basis for a period of one year with the following terms and conditions: "(i) He will be paid contractual remuneration of Rs. 46,120/- per month subject to normal standard deductions, if any;

(ii) The appointment may be terminated at any time by either side by giving one month's notice without assigning any reason. The Appointing Authority, however, reserves the right to terminate the service of the appointee forthwith or before the expiry of the stipulated period of notice by making payments of a sum equivalent to the emoluments for the period of notice. Appointee may also pay one month's salary in lieu of one month's notice. This amount is not permissible to be adjusted against any leave or fund;

(iii) ****

(iv) ****

(v) ****

(vi) ****

(vii) The appointment may be extended for further period on mutual consent depending on performance."

¶3This is the second round of litigation. In the first round of litigation, the petitioner had challenged his termination order stating that said order was a stigmatic one. This court while disposing of that writ petition, had set-aside and quashed the termination order holding that the order was stigmatic. Thereafter, the petitioner was reinstated in the same terms and conditions. In the instant writ petition, the petitioner has stated that after expiry of 1 year 29 days, the respondents did not allow him to continue his service. The respondents even have not issued any order of discontinuation.

¶4Mr. BN Majumder, learned senior counsel appearing for the petitioner has submitted that the petitioner has the right to know the reason as to why his service was discontinued. The service contract of other contractual doctors has been renewed by the respondents. Mr.

Nandi Majumder, learned senior counsel has further submitted that the salary of 11 days has not been paid to the petitioner by the respondents.

¶5On the other hand, Mr. D. Bhattacharjee, learned GA appearing for the respondents has submitted that the performance of the petitioner was not found satisfactory by the respondents, as such, his service was discontinued. While the services of other similarly situated doctors were found to be satisfactory to the respondents, as such their services had been continued.

¶6I have perused the pleadings of both the parties, and considered the submissions of learned counsel appearing for the parties.

¶7It is apparent from the appointment order of the petitioner dated 19th July, 2021 (Annexure 1 to the writ petition) that the appointment is purely on contract basis for a period of one year. It is also clear that after expiry of one year, the contractual service of the petitioner has come to an end. In the counter affidavit, the respondents have stated that the performance of the petitioner was not satisfactory to the respondents (para 14 to the counter affidavit).

¶8Before I advert to the merits of the writ petition, I may gainfully refer to a judgment passed in the case of Cyriac Joseph & T.S. Thakur Gridco Limited and another vs. Sri Sadananda Doloi and others, reported in (2011) 15 SCC 16, where the Hon'ble Supreme Court almost in a similar situation had observed thus:

"16. This question has to be answered in two distinct parts. The first part relates to the aspect whether the order passed by the appellant-Corporation is amenable to judicial review and if so what is the scope of such review. The second part of the question is whether on the standards of judicial review applicable to it, the order of termination is seen to be suffering from any legal infirmity. Before we refer to certain decisions of this Court that have dealt with similar issues in the past we may at the outset say that there was no challenge either before the High Court or before us as to the competence of the authority that passed the termination order. There was indeed a feeble argument that the order was mala fide in character but having regard to the settled legal position regarding the proof of mala fides and the need for providing particulars to substantiate any such plea, we are of the view that the charge of mala fide does not stand scrutiny. Neither before the learned Single Judge nor before the Division Bench was the ground based on mala fides seriously argued by the respondent. What was contended on behalf of the respondent was that the appellant-Corporation did not act fairly and objectively in taking the decision to terminate the arrangement. It was contended that the decision to terminate the contractual employment was not a fair and reasonable decision having regard to the fact that the respondent had performed well during his tenure and the requirement of the Corporation to have a Chief General Manager (HR) continued to subsist. In substance, the contention urged on behalf of the respondent was that this Court should reappraise and review the material touching the question of performance of the respondent as Chief General Manager (HR) as also the question whether the Corporation's need for a General Manager (HR) had continued to subsist. We regret our inability to do so. It is true that judicial review of matters that fall in the realm of contracts is also available before the superior courts, but the scope of any such review is not all pervasive. It does not extend to the Court substituting its own view for that taken by the decision-making authority. Judicial review and resultant interference is permissible where the action of the authority is mala fide, arbitrary, irrational, disproportionate or unreasonable but impermissible if the petitioner's challenge is based only on the ground that the view taken by the authority may be less reasonable than what is a possible alternative. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it is with the decision-making process unless of course the decision itself is so perverse or irrational or in such outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses.

¶17In Shrilekha Vidyarthi & Ors. v. State of U.P. & Ors. (1991) 1 SCC 212, the State Government had by a circular terminated the engagement of all the government counsels engaged throughout the State and sought to defend the same on the ground that such appointments being contractual in nature were terminable at the will of the government. The question of reviewability of administrative action in the realm of contract was in that backdrop examined by this Court. The Court also examined whether the personality of the State Government undergoes a change after the initial appointment of government counsels so as to render its action immune from judicial scrutiny. The answer was in the negative. The Court held that even after the initial appointment had been made and even when the matter is in the realm of contract, the State could not cast off its personality and exercise a power unfettered by the requirements of Article 14 or claim to be governed only by private law principles applicable to private individuals. The Court observed: "... we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual. Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power

unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Article 14 and contractual obligations are alien concepts, which cannot co-exist."

¶18Recognizing the difference between public and private law activities of the State, this Court reasoned that unlike private individuals, the State while exercising its powers and discharging its functions, acts for public good and in public interest. Consequently every State action has an impact on the public interest which would in turn bring in the minimal requirements of public law obligations in the discharge of such functions. The Court declared that to the extent, the challenge to State action is made on the ground of being arbitrary, unfair and unreasonable hence offensive to Article 14 of the Constitution, judicial review is permissible. The fact that the dispute fell within the domain of contractual obligations did not, declared this Court, relieve the State of its obligation to comply with the basic requirements of Article 14. The court said : "This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions." (emphasis supplied)

¶19In Assistant Excise Commissioner & Ors. v. Issac Peter & Ors. (1994) 4 SCC 104, the dispute related to supply of additional quantities of arrack demanded by the license-holder. Supply of arrack was, however, controlled by the Government and the entire transaction relating to the supply and sale of arrack was based on licenses granted under the relevant rules to persons who emerged successful in a public auction. The Government claimed that the only obligation cast upon it under the Rules was to provide the monthly quota of arrack to each license-holder, supply of additional quantity being discretionary with the authorities. The license-holders, on the other hand, argued that supply of additional quantity was implicit in the conditions of the license. In support they relied upon the past practice and argued that if the supply is limited to the monthly quota only it would not be possible for the license holder to pay even the license fee. The license-holders questioned the refusal of the State Government to issue additional quantities of arrack as unfair and unreasonable. This court, however, rejected that contention and held : "Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the Rule of Law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the

doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract - or rather more so." (emphasis supplied)

¶20Taking note of the decision of this Court in Shrilekha Vidyarthi's case (supra), this court held that there was no room for invoking the doctrine of fairness and reasonableness against one party to the contract, for the purpose of altering or adding to the terms and conditions of the contract merely because it happens to be the State. The Court said : "It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned Counsel (that being of incorporating the doctrine of fairness in contracts where State is a party). We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides." (emphasis supplied)

¶21In conclusion, the Court made it clear that the opinion expressed by it was only in the context of contracts entered into between the State and its citizens pursuant to public auction, floating of tenders or by negotiation. The court considered it unnecessary to express any opinion about the legal position applicable to contracts entered into otherwise than by public auction, floating of tenders or negotiation.

¶22In State of Orissa v. Chandra Sekhar Mishra (2002) 10 SCC 583, the respondent had been appointed as a Homeopathic Medical Officer whose services were subsequently terminated by issue of a notice. While rejecting the challenge to the termination order, the Court observed "when the respondent was only a contractual employee, there could be no question of his being granted the relief of being directed to be appointed as a regular employee."

¶23We may also refer to the decision of this court in Satish Chandra Anand v. Union of India (AIR 1953 SC 250), where the petitioner, an employee of the Directorate General of Resettlement and Employment, was removed from contractual employment after being served a notice of termination. The contract of service in that case was initially for a period of five years which was later extended. A five-Judge Bench hearing the matter, dismissed the petition, challenging the termination primarily on the ground that the petitioner could not prove a breach of a fundamental right since no right accrued to him as the whole matter rested in contract and termination of the contract did not amount to dismissal, or removal from service nor was it a reduction in rank. The Court found it to be an ordinary case of a contract being terminated by notice under one of its clauses. The Court observed : "10. There was no compulsion on the Petitioner to enter into the contract he did. He was as free under the law as any other person to accept or reject the offer which was made to him. Having accepted, he still had open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract, which has been denied to him, assuming there are any, and to

pursue in the ordinary Courts of the land, such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim...

¶11... ......... The Petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance when analysed, not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound." (emphasis supplied)."

¶9Applying the aforesaid ratio, decided by the Hon'ble Apex Court, in the facts of the present case, I may unhesitantly hold that the termination of the service of the petitioner after expiry of one year is purely within the ambit of the terms and conditions of the appointment order dated 19th July, 2021. The extension or renewal of the contract entirely depends upon the employer. The court will not exercise its power of judicial review to interfere with the order of discontinuation unless and until the records show otherwise or the court finds any illegality or arbitrariness or malafide intention for discontinuing the service of a contractual employee.

¶10In the instant case, it is the grievance of the petitioner that no order of discontinuation has been passed by the respondents. In my opinion, non-renewal of the contract on expiry of the stipulated period of contract manifestly implies that the respondents discontinued the contractual service period of the petitioner after expiry of 1 (one) year in terms of the appointment letter.

¶11In the present case, there is nothing on record to show that the discontinuation of the contractual service of the petitioner was actuated with malafide intention or by any act of arbitrariness. The Hon'ble Supreme Court in the case of Cyriac Joseph & T.S. Thakur (supra), has clearly held that renewal or extension were subject to terms and conditions as mentioned in the appointment letter. It is further held that termination of a contractual employment in terms of contract is permissible.

¶12After perusal of the appointment order dated 19th July, 2021, I do not find any infirmity or illegality. Non-renewal of the contract is rooted in the appointment letter itself. I said earlier that renewal or extension of the contract period would be governed / regulated by the terms and conditions embodied in the appointment letter itself. Non-renewal of the contract of appointment by the respondent-employer itself amounts to discontinuation. For this, no formal order is mandatory. The petitioner cannot raise his objection against such discontinuation because he knows the implications of the terms and conditions regulating his service conditions. He is well aware of the nature of his appointment. In the appointment order, one of the terms and conditions is that the appointment may be extended for further period on mutual consent depending on performance. In my opinion, in the instant case, discontinuation is simpliciter and within the realm of the contract that the service of the petitioner may not be extended after a period of one year.

¶13The submission of learned senior counsel that the services of other similarly situated contractual doctors had been extended and that the non-renewal of the contractual service of the petitioner is an act of arbitrariness on the part of the respondent-Medical College, in the opinion of this court, is not acceptable on the ground that the appointment of the petitioner was only for one year, and the extension and renewal would be decided on mutual consent on the basis of performance, which decision is entirely within the domain of the respondents. In such a case, in my opinion, equality clause as enshrined under Article 14 and 16 of the Constitution of India will not come into play because such appointment will be governed by the terms and conditions of the contract entered into between the employee and the employer being agreed upon mutually.

¶14The petitioner has not produced any such record wherefrom it can be revealed that the contract service of the petitioner was discontinued on some extraneous consideration or actuated with malice. The facts and law surveyed in the preceding paragraphs lead this court to hold that the petitioner has no right to go beyond the terms and conditions laid down in the appointment letter.

¶15Further, it is no more res integra that principle of natural justice is not a straight jacket formula. In the facts of the present case, the doctrine of natural justice would not come in the way of discontinuation of the contract service of the petitioner.

¶16The petitioner also could not furnish any such records that he worked for 11 (eleven) days after expiry of the contract period of 1 (one) year. However, I direct the respondents to pay remuneration for 11 days, if it is found from the records of the respondents that the petitioner had worked for 11 days after expiry of the contractual period.

¶17For the reasons stated and discussed here-in-above, I do not find any merit in the present writ petition, and accordingly, the same stands dismissed.

JUDGE

SAIKA T KAR by SAIKAT KAR Date: 2023.07.18 17:18:12 +05'30'

HIGH COURT OF TRIPURA AGARTALA WP(C) 156/2023 Dr. Subhajit Dhar, son of Sri Sankar Dhar, resident of Gandhighat Quarter Complex, Block- A, Type-3, Quarter No. 3, P.S. West Agartala, Agartala, West Tripura …..Petitioner -VERSUS- 1. Society for Tripura Medical College & Dr. B.R. Ambedkar Memorial Teaching Hospital, Chairman of the Society, Hapania, P.S. Amtali, West Agartala, Tripura 2. The Chief Executive Officer, Society for Tripura Medical College & Dr. B.R.A.M. Teaching Hospital, Hapania, P.S. Amtali, West Agartala, Tripura 3. The Medical Superintendent, TMC & Dr. BRAM Teaching Hospital, Hapania, P.S. Amtali, West Agartala, Tripura. ….Respondents. For Petitioner(s) : Mr. BN Majumder, Sr. Advocate Mr. DJ Saha, Advocate For Respondent(s) : Mr. D. Bhattacharjee, GA Mr. S. Saha, Advocate Date of hearing & delivery: 10.07.2023 of judgment & order Whether fit for reporting : HON'BLE MR. JUSTICE ARINDAM LODH