WP(C) 2859/2007 BEFORE HON’BLR MR JUSTICE AMITAVA ROY W.P.( C) NO.2859/2007 PETITIONER : Shri Syamal Kumar Bhumij, Son of Shri Syamanta Bhumij, R/o Khowang Tea Estate, P.O. Khowang, District Dibrugarh. RESPONDENTS : 1. THE STATE OF ASSAM, Represented by the Commissioner and Secretary , to the Govt.of Assam, Education Department, Dispur, Guwahati-6. 2. The Mission Director , Axom Sarba Siksha Abhijan Mission(SSA), Assam, Guwahati. 3. The Deputy Commissioner, Dibrugarh. 4. The District Mission Co-ordinator, SSA, Dibrugarh. 5. The Headmaster, Pithubor ME School, Khowang, Dibrugarh. W.P.( C) NO.2860/2007 PETITIONER : Shri Bikash Jyoti Gogoi, Son of Shri Cheni Ram Gogoi,R R/o Gandhi Nagar, P.O. Dibrugarh, District Dibrugarh. RESPONDENTS : 1. THE STATE OF ASSAM, Represented by the Commissioner and Secretary , to the Govt.of Assa m, Education Department, Dispur, Guwahati-6. 2. The Mission Director , Axom Sarba Siksha Abhijan Mission(SSA), Assam, Guwahati. 3. The Deputy Commissioner, Dibrugarh. 4. The District Mission Co-ordinator, SSA, Dibrugarh. 5. The Headmistress, Rangoli Patha LP School, Dibrugarh. Naharkatia. 6. Headmaster, Samajkalyan ME school, Dibrugarh, Naharkatia. W.P.( C) NO.2865/2007 PETITIONER : Shri Dulen Hazarika, Son of Shri Jogeswar Hazarika, Resident of Nirmali Gaon (Milan Nagar), P.O. C.R. Building, District Dibrugarh. BY ADVOCATES : In all the cases Mr N.Dutta, Mr B. Chetri, Mr K. Saxena. RESPONDENTS : 1. THE STATE OF ASSAM, Represented by the Commissioner and Secretary , to the Govt.of Assa m, Education Department, Dispur, Guwahati-6. 2. The Mission Director , Axom Sarba Siksha Abhijan Mission(SSA), Assam, Guwahati. 3. The Deputy Commissioner, Dibrugarh. 4. The District Mission Co-ordinator, SSA, Dibrugarh. 5. The Headmaster, Chaulkhowa M.E. School, Dibrugarh. BY ADVOCATES : In all the cases Mr S.Sarma, Ms B.Devi, SC, SSA. Date of hearing : 31.07.2007 Date of Judgment : 02.08.2007. JUDGEMENT AND ORDER(ORAL ) These proceedings under Article 226 of the Constitution of I ndia register an impugnment of the termination of the petitioners’ services as J unior Engineer under the Assam Sarbasiksha Abhijan Mission and their consequenti al release therefrom. The basic facts are similar and the legal issues being t he same, the petitions were heard analogously and are therefore being disposed o f by this common judgment and order. 2. I have heard Mr N.Dutta, Senior Advocate assisted by Mr B. Chetri, Advocate for the petitioners and Mr S.Sarma, learned Standing counsel, Assam Sa rbasiksha Abhijan Mission ( for short hereinafter referred to as ’SSA’) . 3. A brief narration of the pleaded facts would be necessary. The petit ioners, following a selection, recommendation of the District Level Selection Co mmittee and the approval of SSA were appointed as Junior Engineers of various Bl ocks on contractual basis for a period of 11 months with effect from the date of execution of respective deeds of agreement to the said effect. For ready refe rence, the particulars of their appointment are extracted hereinbelow :- Writ petition Name Designation Block/office 2859/2007 Shyamal Kr Bhumij J.E. Khowang Block 2860/2007 Bikash Jyoti Gogoi J.E. SSA,Dibrugarh 2865/2007 Dulen Hazarika J.E. SSA, Dibrugarh Each of the petitioners executed a written agreement on 3.10.2006 with the SSA and in terms thereof, the tenure of their contractual service was to automatica lly lapse on 2.9.2007. 4. Clause 6 of the agreement allowed either party thereto to termi nate the agreement by giving one month’s notice to the other party in writing or by paying one month’s remuneration in advance ,in lieu of notice. Any dispute between the parties were agreed to be settled by the sole arbitrator to be app ointed by SSA as stipulated in Clause 10. 5. After signing the deed of agreement, the petitioners assumed th eir office and started rendering services. While the matter rested at that, th e Mission Director, SSA issued a notice dated 5.5.2007 requiring them to expla in as to why their contractual engagement should not be reviewed and termina ted as contemplated under Clause 6 of the agreement for gross negligence of duti es and misappropriation of fund sanctioned for the works mentioned therein . T he charges levelled vis a vis the petitioners in the above order are quoted here inbelow:- SHYMAL KR BHOMIJ-WP(C) 2859/07 1. That you had taken on demand Rs.7,500/-from Sri Shanti Ram Saikia, Head Master, Sihugarh Girls ME school in connection with construction of additio nal class room in the above school for the year 2006-07 as per the statement of the Head Master. 2. That on receipt of the alleged mis-appropriation of fund sanctioned for const ruction of additional classroom in various LP/ME Schools in Dibrugarh District an enquiry was made by the Deputy Commissioner, Dibrugarh and the above extortio n of money from the Head Master was confessed by him in presence of the Deputy Commissioner in a meeting held on 27.04.2007. BIKJASH JYOTI GOGOI-WP(C) 2860/07 1. That you had taken on demand Rs.30,000/- and Rs.1,500/- from Smt Rina Sonow al, Head Mistress of Rangolipatha LP school and Shri Deveshwar Sonowal, Head Mas ter, Samajkalayan ME school respectively in connection with construction of addi tional classrooms in the above schools for the year 2006-07 as per the statement s of the Head Mistress/Head master. 2. That on receipt of the alleged misappropriation of fund sanctioned for cons truction of additional class rooms in various LP/ME Schools in Dibrugah Distric t an enquiry was made by the Deputy Commissioner, Dibrugarh and the above extor tion of money from the Head Master/Head Mistress was confessed by them in presen ce of the Deputy Commissioner in a meeting held on 27.04.2007. DULEN HAZARIKA-WP( C) 2865/07 That you had taken on demand Rs.5000/- from Sri Jyotindra Nath Sarma, Head Mas ter, Chaukhowa ME School in connection with construction of additional classroo m in the above school for the year 2006-07 as per the statement of the Head Mas ter. 2. That on receipt of the alleged mis-appropriation of fund sanctioned for cons truction of additional classrooms in various LP/ME schools in Dibrugarh District , an enquiry was made by the Deputy Commissioner, Dibrugarh and the above extort ion of money from the Head Master was confessed by him in presence of the Deput y Commissioner in a meeting held on 27.04.2007. The petitioners duly submitted their explanation wherein they denied the allega tions and asserted that the same had been levelled as a sequel to their strict s upervision of the construction works and consequential reproaches to the Headma sters/Head Mistresses of the concerned institutions for non conformity with the plans and estimates pertaining thereto. According to the petitioners, on enqui ries being made by them, the Headmasters/Headmistress of the concerned schools disclosed to them that the imputations had been made due to constant pressure on them by the authority concerned threatening termination of their services otherwise. 6. By the impugned orders dated 15.5.2007 passed by the Mission Direc tor, SSA the petitioners’ services were terminated ostensibly under Clause 6 o f the terms and conditions of the agreement on one month’s remuneration as sti pulated. The petitioners thereafter were released by order dated 18.5.2007 of t he District Mission Co-coordinator, SSA, Dibrugarh. 6. In their counter, the Assam Sarba Siksha Mission questioned the maintainability of the writ petition referring to the arbitration clause in the agreement. It also asserted that the petitioners’ services were terminated hav ing found to be unsatisfactory in exercise of powers contained in clause 6 of t he agreement and the decision being final and binding on them, it was beyond any challenge in law. It is pleaded that the Mission Director,SSA , issued the s how cause notice to the petitioners on the basis of the complaints received fro m the Headmaster/Headmistress of the concerned institutions and the impugned de cision was taken after considering the charges levelled against them, the rep orts submitted by the Deputy Commissioner of the district and the explanations s ubmitted by the petitioners by offering one month’s remuneration in advance. I t is disclosed in the counter that on 19.4.2007 a review cum sharing meeting on civil works had been convened in the office chamber of the District Mission C o-ordinator, SSA wherein the concerned Headmasters/Headmistress made statements endorsing the accusations made by them. 7. Mr Dutta has assiduously urged that the impugned decision on t he face of the records being punitive and stigmatic in nature precipitating adv erse civil consequences against the petitioners, it is unsustainable in law in a bsence of any opportunity to them to represent against the same. The learned Senior counsel maintained that the decision to terminate the petitioners’ se rvices having been taken following a preliminary enquiry by the authorities ref erred to in the letter dated 27.4.2007 (Annexure-1 to the affidavit of SSA) and also acting on the disclosures made by the Headmasters/Headmistress of the in stitutions involved in writing alleging extortion of money from them by the peti tioners without either furnishing the materials collected against them or affor ding an opportunity to controvert the same, the termination of their services i s vitiated by gross transgression of principles of natural justice. The impugne d action being wholly founded on the allegations levelled against the petitione rs , the same on the face of it was punitive and in absence of any prior opport unity to the petitioners to meet the same, it is liable to be adjudged unconsti tutional ,null and void, he urged. Mr Dutta contended that fairness in adminis trative action being a constitutional guarantee against arbitrariness , the a rbitration clause in the agreement by no means could be interpreted to be exte rminative thereof. In support of his submissions, the learned Senior counsel placed reliance on the decisions of the Apex Court in (1984) 2 SCC 369, Anoop J aiswal, Appellants vs. Government of India and another, Respondents, Respondents . 8. Mr Sarma, as against this argued that the parties being governed wholly by the terms and conditions of the agreement, in the teeth of the arbitr ation clause , the instant petition is not maintainable in law. Serious allegati ons having been levelled against the petitioners which stood substantiated fol lowing an enquiry and authenticated by the complainants, the impugned decision was passed, the petitioners’ services having been found to be unsatisfactory. The termination of the petitioners’ services being in accord with the agreement , the same cannot be faulted with. Moreover, the impugned order is not stigmati c, he urged. He pressed into service to buttress his arguments the decision of the Apex Court in (2006) 4 SCC 469,Abhijit Gupta,Appellant vs. S.N.B. National Centre, Basic Sciences and Others, Respondents, Respondents. 9 The rival submissions have been duly considered. Admittedly, the peti tioners were inducted in a contractual service , the terms whereof as per the a greement between the parties would lapse on 2.9.2007, subject to the either par ty’s volition of terminating the same by one month’s notice or payment of one m onth’s remuneration in advance, in lieu thereof. There is no wrangle at the Bar that the above recruitment is to a public office. Thus, the agreement, notwit hstanding, the petitioners during their tenure as comprehended therein, are enti tled to be dealt with fairly. The authorities of SSA are constitutionally bound to be transparent, reasonable and non arbitrary in their action vis a vis the petitioners. 10. From the show cause notice, letter dated 27.4.2007 (Annexure-17 to t he affidavit of SSA) and the impugned orders dated 18.5.2007 it is more than app arent that the petitioners’ services have been terminated on the charge of gross negligence and misappropriation of public funds sanctioned for civil works in the SSA, Dibrugarh. The letter dated 27.4.2007 from the Deputy Commissioner, Di brugarh to the Mission Director, SSA , in particular reveals that a thorough enq uiry had been conducted into the complaints of misappropriation of funds agains t the petitioners by the authorities referred to therein and that the probe disc losed that the money was demanded and taken by the petitioners and others named therein from the Headmasters/Headmistress of the schools concerned. It furthe r transpires from the said letter that the Headmasters/Headmistress confirmed i n writing about the extortion of money from them. The show cause notices issued to the petitioners and others referred to the charge of demand of amounts refer red to therein from the Headmasters of the schools concerned as well as the enq uiry made by the Deputy Commissioner, Dibrugarh to the said effect. Neither a c opy of the enquiry report nor the statements of the Headmasters in writing had b een furnished to them for offering their defence. To that extent the vital mater ials pertaining to the charges levelled were withheld from the petitioners whic h unmistakably prejudiced them in preparing their defence. 11. It is manifest from the affidavit of SSA that the enquiry reports a nd the statements of the Headmasters of the schools had formed the basis of the impugned action. This is evident as well from the impugned orders. Having regar d to the detrimental consequences visiting the petitioners as a fall out of the impugned orders, I am constrained to hold that in the attending facts and circ umstances the same have been in contravention of the principles of natural just ice and the fundamental principles of fair play and transparency in administrat ive action. The termination of the petitioners’ services being founded on speci fic complaints against them, the same ought to have been preceded by reasonable opportunities to them to represent against the same. The omission on the part o f the respondent authorities in this regard has generated an all pervasive invalidating effect on the process undertaken and cannot be saved under the co ver of clause 6 of the agreement. 12. The plea of alternative remedy of arbitration is also not convincing. T he impugned orders are afflicted by a vitiating illegality. The petitioners thou gh in contractual service ,during their term cannot be denied the guarantee of a dministrative fairness. 13. In Anoop Jaiswal (Supra) , the appellant was discharged from servic e speciously on the ground of unsuitability for being late in attending the P.T./unarmed combat practice. Explanation was called for from the appellant and others who were probationers. Though he sincerely regretted the lapse ,he denie d the charge of instigating others. The Director, National Police Academy, Hyder abad recommended that he should be discharged from service. The Apex Court on a scrutiny of the contextual facts concluded that late arrival was foundation o f the action taken against the appellant and though the order of discharge appe ared to be one of discharge simpliciter , the case attracted Article 311(2) of the Constitution of India, the order amounted termination by way of punishment and thus an enquiry ought to have been held in accordance with the said provis ion. 14. The decision of the Apex Court in Abhijit Gupta (Supra), though pert ains to a probationer turns of its own facts, where in the estimation of the A pex Court, the materials acted upon were not stigmatic and the decision against his confirmation was not punitive. Considering the nature of the imputations br ought against the petitioners which form the foundation of the impugned orders, this decision is of no avail. 15. In the result, the impugned orders being unsustainable in law are h ereby set aside. The petitions are allowed. No costs.