WA 77/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE B.D.AGARWAL Amitava Roy, J The judgment and order dated 11.3.2010 passed in WP(C) No. 5957/2009 spurning th e challenge of the writ appellant to the decision of non-renewal of his contract as Block Programme Manager (for short, hereinafter referred to as ’BPM’) under the District Health Society, Karimganj ( for short, hereinafter referred to as ’ the Society’) is under impugnment in the present appeal. 2. We have heard Mr GN Sahewalla, Senior Advocate for the appellant and Ms A Verma, learned Standing Counsel, Health & Family Welfare Department, G ovt. of Assam for the respondents. 3. The appellant’s pleaded version in brief is that on the basis of a selection held for the post of BPM and on successful completion of the traini ng therefor, he was, by order dated 29.5.2007 of the Mission Director, NRHM, Ass am, posted in the said capacity in the Kachuadam Primary Health Centre in the di strict of Karimganj and his services were placed at the disposal of the District Health Society, Karimganj. By order dated 4.6.2007 of the Joint Director of Hea lth Services-cum- Member Secretary, District Health Society, Karimganj, he was e ngaged as BPM for a period of six months subject to the execution of a contract to that effect. The order mentioned that his services were placed at the disposa l of the Sub-Divisional Medical & Health Officer (i/c) Kachuadam PHC. A contract as referred to in the aforementioned order was executed between the writ appel lant and the Joint Director of Health Services-cum- Member Secretary, District H ealth Society, Karimganj which contained inter alia the following clause:- 8. Notwithstanding anything contained herein above, the services of the Party m ay be terminated at any time by the Society if the Party is found to be guilty o f any insubordination, intemperance or other misconduct or of any breach or non- performance, it being clearly understood that the Society shall always invoke th is clause in consultation with the Chairman of the Society and Member Secretary of the Society. . At the time of appointment the writ appellant along with similar appointees also signed a chart of Job responsibilities of Block Programme Mana ger . 4. According to the writ appellant, he thereafter discharged his du ties without any blemish and to the satisfaction of all concerned. He used to su bmit progress reports detailing his activities and achievements to the Joint Dir ector of Health Services-cum- Member Secretary, District Health Society, Karimga nj. He has averred that in all monthly review meetings held as per the aforement ioned chart his performance was highly appreciated at all levels. According to h im, on an evaluation of the implementation, execution and achievements of the Na tional Rural Health Mission, Assam Objectives in the year 2009, his performance in comparison to other BPMs was much better and in fact best in the district of Karimganj and his district was assigned second position in the overall performan ce in the above field of activities updated till 25.6.2008. It was in this backg round that as a bolt from the blue he was communicated vide letter dated 11.12.2 009 of the Joint Director of Health Services-cum- Member Secretary, District Hea lth Society, Karimganj that his contract as BPM would not be renewed from that d ate. Thereby he was asked to hand over all documents, office records, materials etc. to the Sub-Divisional Medical & Health Officer (i/c), Kachuadam PHC and was offered one month’s remuneration as well. On receipt of the said communication, the appellant on 13.12.2009 submitted a representation before the Mission Direc tor, NRHM, Assam seeking, amongst others, an impartial scrutiny of all relevant aspects bearing on his performance with a request to reinstate him in his post. As inspite of the assurances given to him by the said authority nothing material ized, he followed-up his request but the same also remained unresponded. In this background he laid the challenge before this Court. 5. The respondent 2, Mission Director, NRHM, Assam in his affidavit in substance pleaded in endorsement of the impugned action contending that on 2 6.6.2009 a performance appraisal was held and a report was forwarded to him by t he District Programme Manager, NRHM, Karimganj which demonstrated that the appel lant’s performance was below average. A public complaint dated 5.3.2008 was also referred to an annexed to the second affidavit dated 9.3.2010. The following sa lient features of the report of the Performance Appraisal Committee of BPM and D PM of Karimganj District dated 3.8.2009 vis-à-vis the performance of the appella nt were recited in the affidavit :- i) Poor team spirit and tendency of insubordination; ii) No lucid idea about HMIS and poor HMIS reporting; iii) Lack of coordination with block level health functionaries; iv) Involvement in corrupt practice (Third party report). 6. The affidavit discloses that the Performance Appraisal Committee had awarded ’E’ Grade to the appellant which was below average recommending eng agement of a new BPM in his place to improve the programme implementation proces s. The answering respondent further averred that the Performance Appraisal Commi ttee of the Karimganj District was composed of the Deputy Commissioner thereof a s the Chairman and other high level authorities. It was, however, admitted that the contract of the appellant was terminated for non-performance, insubordinatio n and corrupt practice (Third party report) as per Clause-8 in terms of the cont ract based on the performance appraisal report. 7. Mr Sahewalla has argued that though the impugned letter dated 11 .12.2009 communicated an innocuous decision of non-renewal of the term of appoin tment of the appellant as BPM, it is apparent from the pleadings of the responde nts that the same in reality was a punitive step against him. As the said action has been taken against the appellant without affording him any opportunity to r epresent against the adverse materials taken note of by the respondents, it is l iable to be set aside on the ground of violation of the principles of natural ju stice alone. The learned senior counsel has argued that as the appellant had con tinued beyond the initial contractual term, there was no scope of non-renewal th ereof and the impugned decision is palpably one of termination of his appointmen t as BPM. While contending that due to the continuous and unstinted performance of the appellant the Kachuadam PHC, of which he was the BPM, had been judged sec ond in the district of Karimganj, Mr Sahewalla has urged that not only all the m embers of the Performance Appraisal Committee were not present during the procee dings held on 26.6.2009, the impugned decision has been taken by leaving out of consideration the relevant materials in favour of the appellant and acting on im pertinent facts against him. In this regard, the learned senior counsel, in part icular, has drawn the attention of this Court to the report of the SDM & HO, Kac huadam PHC as well as the representations of the members of the local institutio ns appreciating the role and performance in the implementation of the projects o f the National Rural Health Mission, Assam in the concerned area. Reliance has b een placed in endorsement of the above submission on the decision of this Court rendered in Dharmeswar Baishya -vs- State of Assam & Ors., 2004 (4) GLT 253; Git a Devi Poddar (Smti) -vs- State of Assam & Ors., 1998 (4) GLT 58; Romen Medhi -v s- Axom Sarba Shiksha Abhijan & 3 Ors. [WP(C) 143/2010 (date of disposal- 8.1.20 10)] and in Rijumoni Das -vs- State of Assam & Ors.[WP(C) 1637/2010 (date of dis posal-29.6.2010)]. 8. In reply, Ms. Verma has maintained that as enjoined the performa nce of the BPMs and Block Accounts Managers (BAMs for short) were apprised in te rms of the norms formulated therefor on 26.6.2009 by the Performance Appraisal C ommittee. According to her, though the petitioner made his presentation before t he said Committee on that date, his performance was not up to the mark and it (C ommittee), on an evaluation thereof as well of his overall activities in the cap acity of BPM, recommended against renewal of his contractual term in the said ca pacity. Highlighting that the adjudgment of the Kachuadam PHC to be second in ra nk in the Karimganj district is per se not demonstrative of the appellant’s leve l of performance and his capacity as a team leader, the learned Standing Counsel has dismissed the cavil against denial of opportunity to him to explain the mat erials on which the impugned decision was eventually taken. Ms Verma has argued that the appellant was accorded all reasonable opportunities of making his repre sentation before the Performance Appraisal Committee and that, therefore, his ch allenge to the impugned order on the ground of unfairness in action is unsustain able in law and on facts. She has claimed that the impugned decision has been ta ken in terms of the contract. The learned Standing Counsel has apprised this Cou rt that on the measure of the performance assessed by the Committee the contract ual term of many BPMs/ BAMs alike the appellant has not been renewed. On being q ueried by this Court, she has submitted that the Deputy Commissioner and the Joi nt Director of Health Services are respectively the Chairman and Member Secretar y of the District Health Society, Karimganj. 9. We have duly considered the pleadings on record as well as the s ubmissions made. That the appellant had continued beyond the initial period of s ix months of his contractual appointment as BPM is a matter of record. The affid avits filed on behalf of the respondents make it apparent that the impugned deci sion had been taken as contemplated in Clause-8 of the contract executed between the appellant and the Joint Director of Health Services-cum-Member Secretary, D istrict Health Society, Karimganj on 4.6.2007. It would be apparent from the sai d Clause as extracted hereinabove that the services of the appellant could be te rminated at any time by the Society if he was found to be guilty of any insubord ination, intemperance or other misconduct or of any breach or non-performance an d that it could only be invoked in consultation with the Chairman of the Society . Para-10 of the affidavit filed by the respondent No.2 clearly reveals that the appellant’s contract was terminated for non-performance, insubordination and co rrupt practice (Third party report) as per Clause-8 of the terms of the contract based on the Performance Appraisal Report. It is, thus, obvious that the impugn ed decision had been taken taking note of the appellant’s non-performance, condu ct of insubordination and involvement in corrupt practice coupled with the Perfo rmance Appraisal Report laid by the Committee. It is apparent as well from Para- 7 of the said affidavit that the performance of the appellant was found to be un satisfactory on account of-(i) poor team spirit and tendency of insubordinate, ( ii) lack of lucid idea about HMIS and poor involvement in HMIS reporting, (iii) lack of coordination with block level health functionaries, and (iv) involvemen t in corrupt practice. The Performance Appraisal Committee ascribed E-grade to h im which was below average. 10. The deficiencies in his performance in the capacity of BPM as as sessed in the realms of team spirit, idea and involvement in HMIS, coordination with block level health functionaries, though may have a bearing on his overall suitability, the imputation of insubordination and corrupt practice is apparentl y stigmatic. The records contain two sets of representations for and against the appellant-one highly appreciating his role and activities as BPM and the other accusing him of gross defaults and malpractices. The report of the SDM & HO, Kac huadam PHC, however, certifies his excellent managerial skill and remarkable con tribution as BPM in furtherance of the National Rural Health Mission Project in the locality of his Primary Health Centre. The respondents in their affidavit ha ve admitted that the report of the SDM & HO, Kachuadam PHC was not taken into co nsideration as the said authority was neither a member of the Performance Apprai sal Committee nor was any such report called for by the Deputy Commissioner-cum- Chairman of the District Health Society, Karimganj. 11. In our considered opinion, having regard to the grounds on which the appellant’s assignment as BPM had been terminated, he ought to have been co nfronted with the materials bearing on the accusation of his insolent conduct an d corrupt practice. Though the participation of the appellant in the proceedings of the Performance Appraisal Committee dated 26.6.2009 has not been denied by h im, it is not very clear as to whether the inputs in general as well as pertaini ng to his conduct of insubordination and corrupt practice were made known to him for his response. We, therefore, do not feel persuaded to conclude that the imp ugned action, having regard to the grounds cited in support thereof, is sustaina ble in the facts and circumstances of the case. Though the appellant had been ap pointed as BPM initially for a period of six months, admittedly, on the expiry t hereof he continued in the said capacity and for intents and purposes the stipul ations contained in the contract initially executed on 4.6.2007 subsisted on the date of termination thereof. In our view, having regard to the pre-conditions e mbodied in Clause-8 of the contract, no uncontrolled or unregulated power for th e exercise thereof is conferred thereby and the invocation of this Clause has to be essentially in conformity with the basic tenets of fairness in action. The f act that the appellant had been offered one month’s pay does not absolve the res pondent authorities of this obligation in law to ensure the validity of the acti on contemplated under Clause-8. We are, therefore, in general agreement with the proposition of law as laid down in the authorities cited at the Bar. 12. The impugned order of termination is, thus, interfered with. How ever, having regard to the office held by the appellant and the deficiencies/ in dictments against him, we refrain from directing his re-instatement as BPM. This is more so as the interference with the impugned decision has made been on the ground of fairness in action. The respondent authorities would offer all reasona ble opportunities to the appellant to represent against the ground on which the impugned order of termination had been issued and, thereafter, record a decision on the issue. In view of the intervention made by this Court the process as ord ered should be completed within a period of two months from the date of receipt of the certified copy of this order. 13. The appeal stands allowed to the extent indicated hereinabove. N o costs.