Gauhati High Court
Page No.# 1/3 vs The State Of Assam And 5 Ors on 24 June, 2025
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/31
GAHC010038472024
2025:GAU-AS:8486
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1093/2024
SHAYED MASUD MAZUMDER
S/O SAMSUDDIN MAZUMDER, VILL AND P.O.-SONABARIGHAT PART-I, P.S.-
RANGIRKHARI, DIST-CACHAR, ASSAM, PIN-788013
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, PANJABARI,
GUWAHATI-37
2:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
PANJABARI
GUWAHATI-37
3:THE DEPUTY COMMISSIONER
CACHAR
CUM DISTRICT PROGRAMME CO-ORDINATOR (MGNREGA)
CACHAR
ASSAM
4:THE CHIEF EXECUTIVE OFFICER
CACHAR ZILLA PARISHAD
ASSAM
5:THE BLOCK DEVELOPMENT OFFICER
SONAI DEVELOPMENT BLOCK
DIST-CACHAR
ASSAM
6:THE CHIEF EXECUTIVE OFFICER
Page No.# 2/31
CACHAR ZILLA PARISHAD
CUM PROJECT DIRECTOR
DISTRICT RURAL DEVELOPMENT AGENCY
CACHA
Advocate for the Petitioner : MR. K MIRA, MR. H A TALUKDAR
Advocate for the Respondent : SC, P AND R.D., GA, ASSAM
Linked Case : WP(C)/4720/2023
ATAUR RAHMAN
SON OF ABDUR RAHMAN
RESIDENT OF VILLAGE- BOWALGURI
P.O.- GORAIMARI
DISTRICT- MORIGAON
ASSAM
PIN- 782104.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI- 781006.
2:THE COMMISSIONER TO THE GOVERNMENT OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
PANJABARI
JURIPAR
GUWAHATI-37
ASSAM.
3:THE PROJECT DIRECTOR
Page No.# 3/31
DISTRICT RURAL DEVELOPMENT AGENCY
MORIGAON
ASSAM.
4:THE CHIEF EXECUTIVE OFFICER
MORIGAON ZILLA PARISHAD
MORIGAON
ASSAM.
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
P AND R.D. appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/4758/2023
MEHTABUDDIN AHMED
C/O- LATE ABDUS SUBHAN
RESIDENT OF VILLAGE- JAJORI MULANKAMURA
P.O. BORMONIPUR
DISTRICT- MORIGAON
ASSAM
PIN- 782141
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI- 781006
2:THE COMMISSIONER TO THE GOVERNMENT OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
PANJABARI
JURIPAR
GUWAHATI- 37
ASSAM
3:THE DIRECTOR
STATE INSTITUTE OF RURAL DEVELOPMENT
G.S.ROAD
KHANAPARA GUWAHATI- 781022
4:THE CHIEF EXECUTIVE OFFICER
Page No.# 4/31
MORIGAON ZILLA PARISHAD
MORIGAON
ASSAM
————
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
P AND R.D. appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/4707/2023
MANASH JYOTI DEKA
SON OF LATE GHANA KANTA DEKA
RESIDENT OF VILLAGE- TARANI KALABARI
P.O.- AZAR BARI
DISTRICT- MORIGAON
ASSAM
PIN- 7820105.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI- 781006.
2:THE COMMISSIONER TO THE GOVERNMENT OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
PANJABARI
JURIPAR
GUWAHATI- 37
ASSAM.
3:THE DIRECTOR
STATE INSTITUTE OF RURAL DEVELOPMENT
G.S. ROAD
KHANAPARA
Page No.# 5/31
GUWAHATI- 781022.
4:THE CHIEF EXECUTIVE OFFICER
MORIGAON ZILLA PARISHAD
MORIGAON
ASSAM.
————
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
P AND R.D. appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/4709/2023
SOFIKUL ISLAM
SON OF LATE EUSUF ALI
RESIDENT OF VILLAGE- SARUCHALA
DISTRICT- MORIGAON
ASSAM
PIN- 782123.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI- 781006.
2:THE COMMISSIONER TO THE GOVERNMENT OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
PANJABARI
JURIPAR
GUWAHATI-37
ASSAM.
3:THE CHIEF EXECUTIVE OFFICER
MORIGAON ZILLA PARISHAD
MORIGAON
Page No.# 6/31
ASSAM.
————
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
P AND R.D. appearing for THE STATE OF ASSAM AND 2 ORS
Linked Case : WP(C)/4759/2023
ASHADUZ ZAMAN
S/O ABDUS SUBAN
VILL.- BHUYANBARI PATHAR
P.O.- CHATIANTOLI
P.S.- LAHARIGHAT
DIST.- MORIGAON
ASSAM
PIN- 782127.
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
DISPUR
GUWAHATI- 781006.
2:THE COMMISSIONER
TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
PANJABARI
JURIPAR
GUWAHATI- 37
ASSAM.
3:THE PROJECT DIRECTOR
DISTRICT RURAL DEVELOPMENT AGENCY
MORIGAON
ASSAM.
4:THE CHIEF EXECUTIVE OFFICER
MORIGAON ZILLA PARISHAD
MORIGAON
ASSAM.
————
Page No.# 7/31
Linked Case : WP(C)/1091/2024
TAHIR HUSSAIN MAZUMDER
S/O LATE JALAL UDDIN MAZUMDER
VILL AND P.O.-UTTAR KRISHNAPUR PART-I
P.S.-RANGIRKHAIRI
DIST-CACHAR
ASSAM
PIN-788006
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
PANJABARI
GUWAHATI-37
2:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
PANJABARI
GUWAHATI-37
3:THE DEPUTY COMMISSIONER
CACHAR
CUM DISTRICT PROGRAMME CO-ORDINATOR (MGNREGA)
CACHAR
ASSAM
4:THE CHIEF EXECUTIVE OFFICER
CACHAR ZILLA PARISHAD
ASSAM
5:THE BLOCK DEVELOPMENT OFFICER
SONAI DEVELOPMENT BLOCK
DIST-CACHAR
ASSAM
6:THE CHIEF EXECUTIVE OFFICER
CACHAR ZILLA PARISHAD
CUM PROJECT DIRECTOR
DISTRICT RURAL DEVELOPMENT AGENCY
CACHAR
————
Page No.# 8/31
For the Petitioners : Mr. K. N. Choudhury, Sr. Advocate.
Mr. R. M. Deka, Advocate.
Mr. K. Mira, Advocate.
For the Respondents : Mr. S. Dutta, SC, P & RD, Assam.
Ms. A. Talukdar, GA, Assam.
BEFORE
HON’BLE MR. JUSTICE SUMAN SHYAM
Dates of hearing : 29.04.2025 & 10.06.2025.
Date of judgment : 24.06.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. R. M. Deka,
learned counsel appearing for the writ petitioner(s) in WP(C) Nos.4707/2023,
4709/2023, 4720/2023, 4758/2023 and 4759/2023. I have also heard Mr. K. Mira,
learned counsel for the writ petitioner(s) in WP(C) Nos.1093/2024 and 1091/2024. Mr. S.
Dutta, learned Standing Counsel, Panchayat & Rural Development Department,
Assam as well as Ms. A. Talukdar, learned Government Advocate, Assam have
appeared for the official respondents.
2. Common questions of law and facts are involved in all these writ petitions. As
such, with the consent of learned counsel for both the sides, all the writ petitions are
being taken up for disposal, at the stage of admission hearing, by this common
judgment and order.
3. The writ petitioners in all these writ petitions were initially appointed on
contractual basis on different dates as Accredited Engineer/ Accountant-cum-
Computer Assistant/ Gram Sahayak/ Computer Assistant/ Accounts Assistant etc.
under the respondent authorities. Their periods of appointment were limited by the
time mentioned in the respective contract agreements. However, as per the writ
Page No.# 9/31
petitioners, even after the expiry of the contractual period, they were allowed to
continue until the termination of their services by the respective orders of termination.
The basic grievance of the writ petitioners, in all the 7 writ petitions are to the effect
that their contractual services have been terminated by the respondent authorities
by issuing stigmatic orders of termination without holding any proper enquiry for the
purpose of establishing the charges of misconduct brought against the writ
petitioners or giving them any opportunity to defend their interests in the matter.
According to the writ petitioners, the impugned orders of termination have been
issued in utter violation of the principles of natural justice and administrative fair play.
For the purpose of disposal of these writ petitions, the facts involved in WP(C)
No.1093/2024 are briefly referred to herein below.
4. The writ petitioner in WP(C) No.1093/2024 was engaged as an Accredited
Engineer on 02.03.2019 vide appointment order issued by the Commissioner to the
Government of Assam, Panchayat & Rural Development Department, Assam i.e. the
respondent No.2 herein, whereafter, he had reported for duty under the Sribar Gaon
Panchayat under the Lakhipur Development Block of Cachar District. On 05.03.2019 a
contract agreement of service was entered into by and in between the writ
petitioner and the authorized representative of Panchayat & Rural Development
Department, Government of Assam, which in this case, was the Chief Executive
Officer, Cachar Zilla Parishad and the Project Director, DRDA, Cachar. As per clause-
3 of the contract agreement dated 05.03.2019, the duration of the contractual
employment of the writ petitioner was for a maximum period of 364 days. As per
clause-3, the service of the employee would stand automatically terminated on the
expiry of the contract period without any further notice from the employer. While the
writ petitioner was discharging his duties as an Accredited Engineer, a show-cause
notice dated 17.06.2022 (Annexure-9) was served upon him calling upon the writ
petitioner to show cause as to why, his services should not be terminated as per the
terms and conditions of the contract. Considering the nature of controversy involved
in this writ petition, reference to the contents of the show cause notice dated
17.06.2022 is deemed necessary and therefore, the same is being reproduced herein
Page No.# 10/31
below for ready reference :-
"No.CPRD/GRS/184/2020/114 Dated 17-06-2022
To
Sayed Masud Mazumdar,
Accredited Engineer,
Dakhin Saidpur Gaon Panchayat,
Sonai Development Block, Cachar.
Sub : Show Cause Notice.
In pursuance to the Govt. letter dated 05.05.2021 an enquiry was
conducted and on perusal of the report dated 01.12.2021 submitted by the
Joint Commissioner & Asstt. Commissioner of this Commissionerate, relating to
alleged anomalies in the preparation and execution of the list of schemes
under MGNREGA during 2020-21 under Sonai Dev. Block, Cachar n respect of
W.P(C) No.311/2021 -in the matter of Sri Taher Barbhuiya and W.P(C)
No.3976/2021 – in the matter of Forhana Begum Laskar (Copy enclosed),
wherein it has come to the notice of the undersigned that you have prepared
the list of 53 nos. INRM schemes without giving weightage to schemes
approved by GPDP and thus violating existing Govt. Guidelines.
Therefore, you are charged with gross negligence of duty and
misappropriation of Govt. money with malafide intention.
In view of the above, you are hereby asked to submit your reply along
with all relevant documents, if any, as to why you shall not be terminated as
per terms and conditions laid down in the contractual agreement which
amounts to gross indiscipline as well as gross negligence of duty and
misconduct on your part and is unbecoming of an employee in contractual
service under the department.
Page No.# 11/31
Your written statement in this regard is to be submitted to the
undersigned on or before 27.06.2022 positively.
Sd/- Illegible
(Bikram Kairi, IAS)
Commissioner
O/o the Commissioner P & RD, Assam.”
5. Upon receipt of the show-cause notice dated 17.06.2022 the writ petitioner
submitted his show cause reply on 05.08.2023, categorically denying the allegation of
malafide intent brought against him by the authorities. In his show-cause reply, the
writ petitioner had inter-alia stated that he had discharged his duties with utmost care
and sincerity and to the entire satisfaction of his higher authority. He had also stated
that he had obeyed all orders of his superior authority and he did not have any
knowledge regarding “changes in the scheme list GPDP” and therefore, the question
of violating the Government guidelines did not arise.
6. After receipt of the show-cause reply submitted by the writ petitioner, the
respondent No.2 had issued the impugned order of termination of service dated
07.02.2024. For the sake of ready reference, the order of termination from service
dated 07/02/2024 issued to the writ petitioner in WP(C) No.1093/2024 is being
reproduced herein below :-
“ORDER
No.359576/1/435695/2024
Date – 07-02-2024
Whereas the Joint Commissioner and Assistant Commissioner of this
Commissionerate has submitted enquiry report relating to alleged anomalies in
the preparation and execution of schemes under MGNREGA during 2020-2021
under Sonai Dev. Block, Cachar. As per enquiry report it appears that the
Page No.# 12/31delinquent officials Shri Sayed Masud Mazumder, Accredited Engineer of
Dakshin Saidpur GP under Sonai Dev. Block, Cachar has prepared 53 Numbers
of INRM Schemes without giving weightage to schemes approved by GPDP
and thus violating existing Govt. Guidelines.
Whereas a show cause notice was issued against Shri Sayed Masud
Mazumder, Accredited Engineer of Dakshin Saidpur G.P. under Sonai Dev.
Block, Cachar vide letter No.CPRD/GRS/184/2020/114 dated 17-06-2022 of the
basis of enquiry report.
Whereas the delinquent official has submitted replies of show cause
notice on 05-08-2023 and the replies were not found to be satisfactory.
Whereas Shri Sayed Masud Mazumder, Accredited Engineer during the
time of hearing on 25th August has admitted preparation of 53 Nos. of Schemes
within a short period of two weeks that were not approved by the Gaon Sabha
violating 7.11.5 of the Master Circular (FY 2018-19) in which emphasized that
incomplete/ongoing works should be given priority in the allocation of work.
Whereas the delinquent official has neglected to uphold the
requirement of maintaining mandatory work files for each scheme, thereby
violating 7.11.5 of the Master Circular (FY 2018-19) which stipulates that a case
record/work file is a physical file that much be maintained for each
project/work under MGNREGA this clearly indicates a violation of both the
provisions and the spirit of the Act.
Failure to maintain demand register. The delinquent official did not
maintain a demand register during the execution of the schemes, which is
essential for taking laborer’s demands and allocations.
Whereas the delinquent official were found responsible for allocating
works to job seekers as per para 4.1.1.(v) of the Operational Guidelines of
MGNREG which states the responsibilities of the Accredited Engineer are (a)
Overseeing the process of registration, distribution of job cards, provision of
Page No.# 13/31date wise receipts against job applications, allocation of work to applicants
etc.Whereas according to the operational guidelines 2013 of MGNREGA, it is
extremely important that workers are assigned first to ongoing works so that
these can be completed on time and the benefits thereof can be derived. The
delinquent officials initiated 45 Nos. new schemes out of the 53 Nos sanctioned
without the approval of the Gram Sabha and immediately began allocating
works to Job Card holders in a single Gaon Panchayat after the schemes were
sanctioned, without considering ongoing works. These indicates a lack of
proper planning and co-ordination and execution.
Whereas according to Para 4.1.1(iv) of the operational guidelines 2013 of
MGNREGA (a) recording attendance of labours everyday, either by the
officials themselves or through the mate in the prescribed master rolls at the
work site, (b) ensuring that all mates attend worksites on time and take roll
calls/attendance in the prescribed master roll at the work site only. However,
the attendance of workers, shown to have been taken at the work sites of a
significant number under (45 new scheme started) at the Gaon Panchayat
which is non negotiable in work execution as per Para 5(b) which says muster
rolls will be maintained on the work site with copies in the Gaon Panchayat
were not consistently recorded by the delinquent official, suggesting a lack of
transparency in the employment process.
Whereas the absence of project initiating meetings indicates a lack of
transparency in the implementation of the works, proper planning in starting
the works and communication between stake holders. As per 5.5(i) of the
operational guidelines 2013 of the MGNREGA, project initiation meetings must
be held not only to discuss the details of work but also to explain them about
the entitlements of the workers and the expected benefits of the work very
clearly.
In view of the above circumstances and as per provision of contract
Page No.# 14/31agreement the services of the contractual employee Shri Sayed Masud
Mazumder, Accredited Engineer of Dakshin Saidpur G.P. under Sonai Dev.
Block, Cachar is hereby terminated with immediate effect.
In lieu of notice period and in view of the exigent circumstances for
which this order passed ex-parte, one month extra salary is to be paid to the
concerned employee,Sd/- illegible
Commissioner
Panchayat and Rural Development, Assam”
7. By filing WP(C) No.1093/2024, the writ petitioner has assailed the impugned
order of termination from service dated 07.02.2024 basically on two counts. Firstly, the
order of termination was issued primarily on the basis of a preliminary enquiry
conducted behind the back of the petitioner. Secondly, the impugned order of
termination had been issued in utter violation of the principles of natural justice
inasmuch as the petitioner was neither given any opportunity to produce evidence
so as to establish his innocence nor had the authorities dealt with the reply submitted
by the writ petitioner on merit.
8. Leading the arguments on behalf of the writ petitioners Mr. K. N. Choudhury,
learned senior counsel has submitted that in all these cases, although the respondent
authorities had served show cause notices upon the respective petitioners, yet, their
replies were not all considered on merit while issuing the impugned order(s). That
apart, submits Mr. Choudhury, there being serious allegation of misconduct and
financial irregularities brought against the petitioners, the authorities ought to have
held a regular departmental proceeding akin to one contemplated under Rule 9 of
the Assam Services (Discipline and Appeal) Rules, 1964 before issuing the orders of
termination. Contending that a stigmatic order of termination from service cannot be
issued without holding a proper enquiry, giving sufficient opportunity to the
Page No.# 15/31
delinquent to establish his innocence, Mr. Choudhury submits that whether it is a case
of permanent employee or a contractual employee, the protection under Article 311
of the Constitution read with Article 16 of the Constitution of India would be available
to both the categories as otherwise, the order of termination would stand vitiated
due to violation of the principles of natural justice.
9. By referring to the decisions of this Court rendered in the cases of Ali Ahmed
Barbhuiya Vs. State of Assam and others [ WP(C) No.2977/2023], Surajit Barman Vs.
State of Assam and others [WP(C) No.1785/2022], Md. Saddam Hussain Vs. State of
Assam and others [WP(C) No.104/2022], Md. Imran Hussain Barbhuiya Vs. State of
Assam and others [WP(C) No.4266/2023], Sailendra Bora Vs. State of Assam and
others [WP(C) No.6680/2022], Partha Pratim Saikia Vs. State of Assam and others
[WP(C) No.4061/2023 Mr. Choudhury has argued that this Court has consistently
interfered with similar orders of termination of contractual services of similarly situated
employees serving under the same respondents, issued in similar fashion and in
violation of the principles of natural justice, directing the respondents to reinstate the
petitioners. Having regard to the facts of the case, the ratio laid down in the
aforesaid decisions would, according to Mr. Choudhury, be squarely applicable to
the facts of the present case as well.
10. Mr. K.N. Choudhury has also placed reliance on an unreported decision of the
Supreme Court rendered in the case of U. P. State Road Transport Corporation &
others Vs. Brijesh Kumar and another to submit that law is firmly settled that an order
of termination of service of an employee, even if engaged on contractual basis,
passed on account of alleged misconduct, without following the principles of natural
justice would not be sustainable in law if the same appears to be stigmatic. Mr.
Choudhury, therefore, submits that the impugned order(s) of termination from service
are vitiated by complete arbitrariness and illegality warranting interference with the
same by this Court.
11. By relying upon and referring to the decision of the Supreme Court rendered in
the case of GRIDCO Ltd. and another Vs. Sadananda Doloi and others reported in
Page No.# 16/31
(2011) 15 SCC 16 Mr. Choudhury has further argued that merely because the initial
appointment of the writ petitioner was contractual, the same cannot be a valid basis
to contend that the power of judicial review by the writ court would not be available
in such cases merely on the ground that the matter lies within the realm of a contract.
12. Supporting the arguments advanced by the learned senior counsel, as noted
above, Mr. K. Mira, learned counsel for the writ petitioners in WP(C) No.1093/2024 and
WP(C) No.1091/2024, while adopting the arguments of Mr. Choudhury, has submitted
that an order of termination from service, issued by taking note of the facts and
events beyond the original show cause notice would be illegal as the same would be
in violation of the principles of natural justice. In support of his above argument, Mr.
Mira has relied upon a decision of the High Court of Judicature at Allahabad
rendered in the case of Ramlala Vs. State of U.P. and others [ Neutral Citation No.
2023 : AHC : 220646-DB].
13. Opposing the stand taken by the learned counsel for the petitioners, Mr. S.
Dutta, learned Standing Counsel, Panchayat and Rural Development Department,
Assam has argued that the decisions rendered by this Court in Ali Ahmed Barbhuiya
(supra), Md. Saddam Hussain (supra), Imran Hussain Barbhuiya (supra), Sailendra Bora
(supra), Partha Pratim Saikia (supra) and Surajit Barnan (supra) are distinguishable on
facts, inasmuch as, unlike those cases where no prior show-cause notice was served
upon the petitioner, in the present writ petitions , show cause notices had been duly
served upon all the individual writ petitioners and it is only after taking note of the
reply furnished by them that the impugned orders of termination from service had
been issued.
14. Referring to clause -9 of the contract agreement, Mr. Dutta, learned
departmental counsel has further argued that since the contract agreement permits
termination of service of the employee if the service is found to be unsatisfactory, no
fault can be found with the impugned order of termination of service since under the
contract agreement, it was permissible for the employer to discharge the employee
on expiry of the contract period, if their services were found to be unsatisfactory.
Page No.# 17/31
15. Mr. Dutta has further argued that a contractual employee is not a
Government servant and therefore, he is not governed by the service rules but the
appointment is entirely governed by the terms and conditions contained in the
contract agreement. As such, submits Mr. Dutta, in case of contractual employment,
there would be no requirement on the part of the State to conduct a full fledged
departmental enquiry before issuing the order of termination from service.
16. Contending that after the issuance of the show cause notices upon the
respective petitioners and after taking note of the reply furnished by them, the
departmental authorities have acted in substantive compliance of the principles of
natural justice Mr. Dutta submits that the writ petitioners being in contractual
employment, the respondents were totally justified in terminating their service by
serving prior notices. According to Mr. Dutta, the present are not fit cases for
interference with the order(s) of termination of service by this Court. In support of his
above arguments Mr. Dutta has referred to and relied upon the following decisions :-
1. Rabindra Kr. Roy Vs. State of Assam and others [2014 SCC OnLIne Gau
559).
2. Rajasthan SRTC Vs. Paramjeet Singh [ (2019)6 SCC 250].
3. Satish Chandra Anand Vs. Union of India [(1953) 1 SCC 420]
4. Union Territory of Tripura Vs. Gopal Chandra Dutta Choudhuri [1962 SCC
OnLIne SC 115].
5. Jan Saikia Vs. State of Assam [WP(C) 4632 of 2023]
6. N. Mani Vs. Sangeetha Theatre [ (2004) 12 SCC 278]
7. GRIDCO Limited and another Vs. Sadananda Doloi and others [(2011) 15
SCC 16]
8. U.P. State Textile Corporation Limited Vs. Suresh Kumar [(2011) 15 SCC
180]
17. To sum up his arguments, Mr. Dutta has submitted that even if the Court
Page No.# 18/31
chooses to interfere with the impugned orders of termination from service, even in
that event, the department be given the option either to proceed afresh against the
petitioners by serving charge-sheet or as an alternative measure, the department be
permitted to discharge the petitioner(s) from service on the ground of non-renewal of
their contract agreements.
18. In his reply argument, Mr. R. M. Deka, learned counsel appearing for the writ
petitioners has argued that the cases of the petitioners are squarely covered by the
previous decisions rendered by the Court in similar matters. Therefore, the impugned
orders of termination from service be set aside. On a query made by this Court, Mr.
Deka has, however, fairly submitted that notwithstanding the interference with the
orders of termination, the departmental authority would still have the option not to
renew the contract of service of the petitioners, if so desired.
19. I have considered the submissions made at the Bar and have also gone
through the materials available on record. As noted above, the fact situations
involved in all the writ petitions are identical in nature, the only difference being the
posts in which they were engaged, their respective dates of appointment and the
dates of the orders of termination. The common grievance of all the writ petitioners,
as noted herein above, is to the effect that their services have been terminated on
the allegation of misconduct, by issuing stigmatic orders but without holding a proper
enquiry so as to establish the charge brought against them.
20. The issue as to whether, a stigmatic order of termination from service in case of
similarly situated contractual employees engaged as Accredited Engineers/
Computer Assistants/ Gram Rojgar Sahayak issued in violation of the principles of
natural justice would be sustainable in the eyes of law, fell for consideration of this
Court in the case of Ali Ahmed Barbhuiya (supra). In that case, similarly situated
contractual employees, working under the department of Panchayat and Rural
Development, were terminated from service on allegation of misconduct by giving
them one month’s salary in lieu of notice. While dealing with the issues involved in that
proceeding, this Court had allowed the writ petitions by setting aside the orders of
Page No.# 19/31
termination from service. However, the departmental authorities were permitted to
proceed against the contractual appointees afresh, in accordance with law, after
serving proper notice indicating the specific charges brought against the petitioners.
The relevant observations made in Ali Ahmed Barbhuiya (supra) are reproduced
herein below for ready reference :-
“It is no doubt correct that in case of a contractual engagement, the
terms and conditions of the contract would govern by the service conditions of
the employee. In the present case, the contract agreement signed by the
petitioner does have a clause permitting termination of the contract at any
point of time if the services rendered by the contractual staff was not found to
be satisfactory. However, what is to be noted herein that bare perusal of the
impugned order of termination demonstrates on the face of the record that
the same was issued on the basis of findings of the enquiry proceeding
conducted behind the back of the petitioner wherein, it had been projected
that the petitioner was guilty of misconduct. Therefore, the order of termination
of service of the petitioner dated 30/10/2021 is not only based on allegation of
misconduct but the same is also stigmatic on the face of the records. In other
words, the impugned order of termination dated 30/10/2021 was founded on
allegation of misconduct. However, the petitioner was not given any
opportunity of being heard in the matter. Therefore, it is a clear case where the
respondents have acted in violation of the Principles of Natural Justice.
The order of termination from service issued to the petitioner has the
trappings of an order of dismissal/removal from service. Therefore, such an
order could not have been issued without giving the employee an opportunity
of being heard, even if the same pertains to a temporary and / or contractual
employee. This is for the simple reason that such an action, besides causing
serious prejudice to the interest of the employee, would also have a bearing on
the prospect of his future employments.
Situated thus, this Court is of the unhesitant opinion that the order of
Page No.# 20/31termination dated 30/10/2021 is unsustainable in the eyes of law. Therefore, the
same is set aside. The respondents are directed to reinstate the petitioner back
in service within 10(ten) days from the date of receipt of a certified copy of this
order. After reinstatement of the petitioner, it would be open for the
respondents to proceed against him, in accordance with law, by serving
proper notice indicating specific charges brought against the petitioner.
In doing so, it would also be open to the department to place the
petitioner under suspension pending drawal/conclusion of the departmental
proceeding, if so advised. However, in such an event, the petitioner will be
paid subsistence allowance. The authorities shall also strictly comply with the
requirement of the Rules as well as Principles of Natural Justice while
conducting the enquiry.
On conclusion of the enquiry, it would be open to the department to
pass appropriate order, as may be deemed necessary, in the facts and
circumstances of the case.
Writ petition stands allowed to the extent indicated above.”
21. Similar view was adopted by this Court in the case of Surajit Barman (supra)
wherein also, the service of similarly situated contractual appointee, working as
Accountant-cum- Computer Operator under the Gaon Panchayat was terminated
by issuing a stigmatic order of termination without, however, holding any proper
enquiry into the allegations.
22. In the case of Sailendra Bora (supra) and Partha Pratim Saikia (supra), referred
to above, similar issues were involved wherein, this Court had adopted the same
view. In those cases also, the authorities had not served prior notices upon the
employees. Notwithstanding the same, orders of termination from service, which
appeared to be stigmatic, had been issued without conducting any enquiry based
on proper charge framed against the employees, nor had the employees given any
opportunity to establish their innocence. By relying upon the law laid down in the
case of Ali Ahmed Barbhuiyan (Supra) the order(s) of termination from service was set
Page No.# 21/31
aside by this Court.
23. On a careful examination of the different orders of termination of service
impugned in the present batch of writ petitions, I find that those orders had not only
dealt with issues which were strictly not the subject matter of the show cause notices
served upon the employees, but none of the orders, even remotely indicate, as to in
what manner, the show-cause reply furnished by the respective employees had been
dealt with by the concerned authority before issuing the order of termination from
service. Not only that, it also appears that the order of termination from service was
also substantially based on enquiry conducted behind the back of the respective
petitioner and without even furnishing them with a copy of the enquiry report. It is not
clear from the materials available on record as to in what manner and to what
extent, the findings of the enquiry conducted behind the back of the writ petitioners
had weighed with the authority while issuing the respective order(s) of termination.
This Court is, therefore, of the considered opinion that apart from failing to give the
petitioners a reasonable opportunity to defend their interest, the respondents have
also failed to establish the allegation of negligence/misconduct brought against the
individual petitioners based on cogent materials.
24. Mr. Dutta, learned departmental counsel has argued that in view of the
admission made by the writ petitioners in their show-cause reply, there was no
necessity to hold a full-fledged enquiry so as to establish the charge. However, on a
careful examination of the show-cause replies I find that none of the writ petitioners
had actually admitted of any wrong doings on their part, amounting to misconduct.
Although the writ petitioners in WP(C) No.1093/2024 and WP(C) No.1091/2024, have
admitted some facts, yet, the allegation of malafide intent and misconduct brought
against them had been stoutly denied by those writ petitioners. Therefore, it cannot
be said that the allegations of misconduct had been admitted by any of the writ
petitioners involved in this batch of writ petitions.
25. From the materials on record, it appears that some opportunity was given to
the writ petitioners to explain their stand. However, as noted above, although there
Page No.# 22/31
were serious allegation of misconduct brought against them including allegations of
financial irregularities, yet, no proper enquiry was conducted to establish such
charge. Not only that, even the explanation submitted by the writ petitioners have
not been properly dealt with. Moreover, it has also been noticed that the impugned
order of termination of service had addressed issues which were not a part of the
show-cause notice, thus denying the employee of any opportunity to submit his
response in that regard. An order of termination on the allegation of misconduct
cannot be issued based on circumstances which did not form part of the show cause
notice. Under such circumstances, merely because a show cause notice was served,
can it be said that the principles of natural justice has been complied with in these
cases ? In other words, did the petitioners get a reasonable opportunity of being
heard ? Was there a genuine hearing of the petitioners’ version before an adverse
decision was taken in the matter? The answer to the said questions, in the opinion of
this Court, has to be in the negative in the facts and circumstances of this case.
26. The rule of audi alteram partem signifies that “no man should be condemned
unheard”. In other words, this Latin phrase denotes that the other side must be
heard. The principle underlying this legal maxim is that no person should be judged
without a fair hearing. Fairness in administrative action and/or fair play in action are
the invoiable tenets of the audi alteram partem rule. Therefore, the same would
undoubtedly constitute the fundamental basis of the concept of principles of natural
justice.
27. The core postulates of the concept of “natural justice” has been lucidly
explained in the case of Swadeshi Cotton Mills Vs. Union of India reported in (19821) 2
SCC 664. Speaking for the majority in the three Judge Bench R. S. Sarkaria, J. has
observed as follows :-
“Rules of natural justice are not embodied rules. Being means to an end
and not an end in themselves, it is not possible to make an exhaustive
catalogue of such rules. But there are two fundamental maxims of
natural justice viz. (i) audi alteram partem and (ii) nemo judex in re sua.
Page No.# 23/31
The audi alteram partem rule has many facets, two of them being (a)
notice of the case to be met; and (b) opportunity to explain. This rule
cannot be sacrificed at the altar of administrative convenience or
celerity. The general principle as distinguished from an absolute rule of
uniform application seems to be that where a statute does not, in terms,
exclude this rule of prior hearing but contemplates a post-decisional
hearing amounting to a full review of the original order on merits, then
such a statute would be construed as excluding the audi alteram
partem rule at the pre-decisional stage. Conversely if the statute
conferring the power is silent with regard to the giving of a pre-decisional
hearing to the person affected and the administrative decision taken by
the authority involves civil consequences of a grave nature, and no full
review or appeal on merits against that decision is provided, courts will
be extremely reluctant to construe such a statute as excluding the duty
of affording even a minimal hearing, shorn of all its formal trappings and
dilatory features at the pre-decisional stage, unless, viewed
pragmatically, it would paralyse the administrative process or frustrate
the need for utmost promptitude. In short, this rule of fair play must not be
jettisoned save in very exceptional circumstances where compulsive
necessity so demands. The court must make every effort to salvage this
cardinal rule to the maximum extent possible, with situational
modifications. But, the core of it must, however, remain, namely, that the
person affected must have reasonable opportunity of being heard and
the hearing must be a genuine hearing and not an empty public
relations exercise.”
28. In the case of Canara Bank Vs. V. K. Awasthy reported in (2005) 6 SCC 321 the
Supreme Court has observed as follows :-
“8. Natural justice is another name for commonsense justice. Rules of
natural justice are not codified canons. But they are principles ingrained into
the conscience of man. Natural justice is the administration of justice in a
Page No.# 24/31commonsense liberal way. Justice is based substantially on natural ideals and
human values. The administration of justice is to be freed from the narrow and
restricted considerations which are usually associated with a formulated law
involving linguistic technicalities and grammatical niceties. It is the substance of
justice which has to determine its form.
9. The expressions “natural justice” and “legal justice” do not present a
water-tight classification. It is the substance of justice which is to be secured by
both, and whenever legal justice fails to achieve this solemn purpose, natural
justice is called in aid of legal justice. Natural justice relieves legal justice from
unnecessary technicality, grammatical pedantry or logical prevarication. It
supplies the omissions of a formulated law. As Lord Buckmaster said, no form or
procedure should ever be permitted to exclude the presentation of a litigants.
defence.
10. The adherence to principles of natural justice as recognized by all
civilized States is of supreme importance when a quasi-judicial body embarks
on determining disputes between the parties, or any administrative action
involving civil consequences is in issue. These principles are well settled. The first
and foremost principle is what is commonly known as audi alteram partem rule.
It says that no one should be condemned unheard. Notice is the first limb of this
principle. It must be precise and unambiguous. It should appraise the party
determinatively the case he has to meet. Time given for the purpose should be
adequate so as to enable him to make his representation. In the absence of a
notice of the kind and such reasonable opportunity, the order passed
becomes wholly vitiated. Thus, it is but essential that a party should be put on
notice of the case before any adverse order is passed against him. This is one
of the most important principles of natural justice. It is after all an approved rule
of fair play. The concept has gained significance and shades with time. When
the historic document was made at Runnymede in 1215, the first statutory
recognition of this principle found its way into the “Magna Carta”. The classic
exposition of Sir Edward Coke of natural justice requires to “vocate interrogate
Page No.# 25/31and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of
Works, (1963) 143 ER 414, the principle was thus stated:
“Even God did not pass a sentence upon Adam, before he was called
upon to make his defence. “Adam” (says God), “where art thou has
thou not eaten of the tree whereof I commanded thee that though
should not eat”.
Since then the principle has been chiselled, honed and refined, enriching its
content. Judicial treatment has added light and luminosity to the concept, like
polishing of a diamond.
11. Principles of natural justice are those rules which have been laid down
by the Courts as being the minimum protection of the rights of the individual
against the arbitrary procedure that may be adopted by a judicial, quasi-
judicial and administrative authority while making an order affecting those
rights. These rules are intended to prevent such authority from doing injustice.”
29. In the aforesaid decision the Supreme Court has further observed that the
concept of natural justice has undergone a great deal of change in the recent years.
Rules of natural justice are not rules always embodied expressly in a statute or in rules
framed thereunder. They may be implied from the nature of the duty performed
under a statute. What particular rule of natural justice should be implied and what
should be its context in a given case would depend to a great extent on the facts
and circumstances of each case.
30. While examining the grievance pertaining to the violation of principles of
natural justice, the Courts would also have to examine as to what prejudice has been
caused to the affected party and also as to whether, adherence to the principles of
natural justice in a given fact situation, would amount to “useless formality”. In the
ultimate analysis, unless failure of justice would occasion due to non-adherence to
the principles of natural justice, the Court may in a given case, refuse to grant relief
particularly when public interest so demands.
31. Coming to the facts of this case, it is no doubt correct that before issuing the
Page No.# 26/31
orders of termination, a show-cause notice was served upon each of the writ
petitioners thus, giving them an opportunity to submit their reply. It is also apparent
that after the show-cause replies were received, the order(s) of termination had been
issued. However, none of the order(s) of termination, impugned in the present batch
of writ petitions, even remotely indicate as to in what manner, the reply submitted by
the individual writ petitioners have been dealt with before arriving at the conclusion
that they were negligent in discharging their duties.
32. The purpose of serving a show-cause notice upon an employee before
initiating any adverse action is to elicit a response from the employee as regards the
allegation brought against him/her. However, in order to comply with the principles of
natural justice, mere giving of an opportunity to submit a show-cause reply would not
be enough. Once a show cause notice is served, the reply furnished by the
employee, must be dealt with in a fair and transparent manner, before arriving at a
decision as otherwise, the very exercise of serving a show cause would be rendered
as an empty formality. Since the essence of the principles of natural justice is fairness,
equity and absence of bias in administrative action, unless the person sought to be
condemned gets a reasonable opportunity of being heard and his version is
ostensibly taken into consideration before arriving at a decision, which is adverse to
his interest, it cannot be said that there has been proper and substantive compliance
of the principles of natural justice.
33. It is no doubt correct that the employment of the petitioners being contractual
in nature, their conditions of service would be strictly governed by the terms and
conditions of the contract agreement. As long as the impugned decision lies purely
within the four corners of the contract agreement, the same must be treated to be
one falling within the realm of the contract. In such cases, remedy, if any, would
ordinarily be in the form of a civil action for breach of contract. However, when
action of the State or its instrumentality is assailed on the ground of arbitrariness,
unfairness and for being in violation of principles of natural justice, power of judicial
review of the Writ Court under Article 226 of the Constitution would certainly be
available so as to examine the legality, reasonableness, fairness of the State’s action,
Page No.# 27/31
even if the matter lies in the realm of a contract. Law in this regard has been firmly
settled by the Supreme Court in the case of GRIDCO Limited and another (supra).
The observations made in paragraphs 38 and 39 of the said decision are reproduced
herein below for ready reference :-
“38. A conspectus of the pronouncements of this court and the
development of law over the past few decades thus show that there has been
a notable shift from the stated legal position settled in earlier decisions, that
termination of a contractual employment in accordance with the terms of the
contract was permissible and the employee could claim no protection against
such termination even when one of the contracting parties happened to be
the State. Remedy for a breach of a contractual condition was also by way of
civil action for damages/ compensation. With the development of law relating
to judicial review of administrative actions, a writ Court can now examine the
validity of a termination order passed by public authority. It is no longer open to
the authority passing the order to argue that its action being in the realm of
contract is not open to judicial review.
39. A writ Court is entitled to judicially review the action and determine
whether there was any illegality, perversity, unreasonableness, unfairness or
irrationality that would vitiate the action, no matter the action is in the realm of
contract. Having said that we must add that judicial review cannot extend to
the Court acting as an appellate authority sitting in judgment over the
decision. The Court cannot sit in the arm chair of the Administrator to decide
whether a more reasonable decision or course of action could have been
taken in the circumstances. So long as the action taken by the authority is not
shown to be vitiated by the infirmities referred to above and so long as the
action is not demonstrably in outrageous defiance of logic, the writ Court
would do well to respect the decision under challenge.”
34. In U.P. State Road Transport Corporation and others (supra) the Supreme Court
has categorically held that termination order issued solely on the ground of
Page No.# 28/31
misconduct but without holding a regular enquiry or affording any opportunity of
hearing to the employee, particularly when the same is stigmatic in nature, could not
have been passed without following the principles of natural justice.
35. In the case of Mrigen Kalita Vs. North East Regional Institute of Parliamentary
Studies, Training and Research and others reported in 2012 (4) GLT 686 a coordinate
Bench of this Court has held that even if an employment is temporary in nature, the
principle of natural justice cannot altogether be given a go bye, more so when the
order is founded on circumstances carrying a stigma against the employee.
36. The decision in the case of Mrigen Kalita (supra) has been quoted with
approval in the subsequent decision of this Court rendered in the case of Partha
Pratim Saikia (supra) wherein also, a stigmatic order of termination of service of a
contractual employee, issued in violation of the principles of natural justice had been
interfered with by this Court. A direction was accordingly issued upon the respondents
to reinstate the petitioners in service. Liberty was, however, granted to the
department to proceed against the petitioners afresh after due adherence to the
principles of natural justice, if so advised.
37. Clause-9 of the Contract Agreement relied upon by the departmental
authorities for terminating the service of the petitioner in WP(C) No.1093/2024 is
reproduced herein below for ready reference :-
“9. Termination of contract
The employer shall reserve the right to terminate the contractual
agreement any point of time if it is found that the services rendered by the
employee is not satisfactory, or if it is found that any declaration of information
furnished by her/him proves to be false, or willfully suppressed, or if there is any
breach of any of the terms and condition of this contract, or if the employee is
found to be involved in any act of indiscipline or misconduct or if the employee
is found to be involved in any act that may become embarrassing to the
employer, the employer may, at its option, pay one month salary in lieu of
notice but nothing in these terms and conditions of employment shall prevent
Page No.# 29/31the employer from terminating the case of employee, the employee shall give
the employer minimum 30 days’ notice of his/her intention to terminate this
employment.”
38. Clause-9 of the contract agreement, no doubt permits the employer to
terminate the service of the employee on any of the grounds mentioned therein
including the grounds of indiscipline and misconduct. However, whether the
employee is guilty of indiscipline or misconduct cannot depend on the mere ipse dixit
of the employer. Such allegation of misconduct, particularly, if the same is stigmatic in
nature, would have to be established in an enquiry proceeding, based on cogent
materials, after giving sufficient opportunity to the employee of being heard so as to
defend his interest. This is for the simple reason that the stigma attached to the order
of termination, apart from having for reaching implication on the employee, would
also have an adverse bearing in the prospect of his future employment and
therefore, would be highly prejudicial to the interest of the employee. Therefore, it is
only when the charge of misconduct is established based on materials brought on
record that it would be permissible for the employer to issue the order of termination
from service based on allegation of misconduct/ misdemeanour.
39 From a reading of the impugned orders of termination, I find that those are
based on allegation of negligence and/or misconduct. The projections made in the
respective orders of termination undoubtedly carries an element of disgrace for the
concerned employee thus, depicting a qualitative shortcoming in performance of
duty by him. Such observations, are likely to have an adverse bearing in the prospect
of future employment of each of the petitioners. If that be so, it is apparent that there
is implied stigma on the face of the impugned orders. Notwithstanding the same, the
departmental authorities have failed to conduct any enquiry so as to give the
petitioners any opportunity to establish their innocence. Viewed from that angle, this
Court is of the unhesitant opinion that this is a clear case of violation of the principles
of natural justice having a vitiating effect on the impugned orders of termination from
service. As such, I am of the opinion that the core issue involved in these proceedings
are covered by the decision rendered in the case of Ali Ahmed Barbhuiyan (Supra).
Page No.# 30/31
40. For the reasons stated above, the impugned orders of termination from service
involved in this batch of writ petitions are hereby set aside. The respondents are
directed to reinstate each of the writ petitioners in service within two weeks from the
date of receipt of a certified copy of this order. Upon such reinstatement, it would be
open for the departmental authorities to initiate fresh proceeding against the
petitioners for establishing the charge(s) of misconduct brought against them if so
advised. In doing so, the departmental authorities would, however, be duty bound to
frame specific charges, containing statement of allegations, so as to afford proper
opportunity to the delinquent employee, to rebut the same. If, upon receipt of reply
of the employee a decision is taken to press the charge, then in that event, a proper
proceeding, in consonance with the principles of natural justice, preferably in the line
of a proceeding conducted under Rule 9 of the Assam Services (Discipline and
Appeal) Rules, 1964 be conducted so as to establish the charge. If the charge
brought against the respective petitioners are established in accordance with law, in
that event, it would be open for the respondents to terminate the service of the
petitioners on the ground of misconduct. During such period it would also be open for
the employer to place the employee under suspension, subject to payment of
subsistence allowance.
41. Having observed as above, this Court is also conscious of the fact that
engagement of each of the writ petitioners is on contract basis and the period of
their employment is prescribed by the terms and conditions of the contract. Although
the petitioners have urged that the respective contracts have been
renewed/extended by the authorities beyond the original period and they have
been allowed to continue till date, yet, no such documentary evidence showing that
the competent authorities had extended the period of contract of employment in
case of each of the writ petitioners, had been placed on record in these
proceedings. As such, this Court is not in a position to express any opinion in the
matter. It is, therefore, clarified that if the period of contract pertaining to each of the
petitioners have come to an end and/or is coming to an end in near future and the
authorities are not inclined to renew the contract any further for any reason
Page No.# 31/31
whatsoever, then in that event, the present order would not preclude the
departmental authorities from discharging the writ petitioners from service by issuing a
non-stigmatic order of discharge on the ground of non-renewal and/or non-extension
of their service contract, in which event, holding of departmental enquiry on the
allegation of misconduct, as mentioned above, would not be necessary. The
respondents would be at liberty to take appropriate action as may be permissible
under the respective contractual agreements, in the light of the observations made
herein above. However, it is made clear that even in order to issue an order of
discharge from service on the ground of non-renewal of the contract agreement, the
departmental authorities would first have to reinstate the respective writ petitioners,
as per the directions passed by this Court.
With the above observations, these writ petitions stand allowed to the extent
indicated herein above.
The parties to bear their own cost.
JUDGE
Comparing Assistant