WP(C) 1637/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) In assailment is the order dated 14/12/2009 passed by the Joint Director of Health Services cum Member Secretary, Directorate of Health Services , Dhubri, refusing to renew the contract whereunder the petitioner had been appo inted as the Block Accounts Manager under the National Rural Health Mission (her eafter referred to as the Mission) and posted in that capacity at Halakura Prima ry Health Centre. 2. I have heard Mr. A. K. Goswami, Sr. Advocate assisted by Mr. S.K . Roy, Advocate for the petitioner and Mr. D. Saikia, learned Standing Counsel, Health and Family Welfare Department, Government of Assam, for the official resp ondents. The respondent No. 5, Shri Nirmal Chandra Hazarika, Block Accounts Mana ger, Halakura PHC, was impleaded vide order dated 20/5/2010 of this Court and th e petitioner was permitted to take steps for causing personal service on him at his recorded address. By an affidavit filed on 2/6/2010, the petitioner has stat ed on oath that the notice of the instant proceeding when offered to the respond ent No. 5, he refused to accept the same. This statement has been affirmed on oa th by the petitioner as true to his knowledge. There being visibly no material t o the contrary to disbelieve the correctness thereof, the service of notice on t his respondent is accepted. 3. The petitioner’s pleaded case in short is that pursuant to a sel ection held, he was appointed as Block Accounts Manager (for short hereafter ref erred to as the BAM) on contractual basis initially for a period of six months v ide order dated 5/6/2007 of the Joint Director of Health Services cum Member Sec retary, DHS Dhubri. Pursuant to the said appointment, an agreement was executed by and between him and the appointing authority and the appendix thereof outline d interalia his job responsibilities in the aforementioned capacity. According t o the petitioner, he rendered unblemished services to the best of his capability and on the expiry of his initial period of six months, the same was extended fr om time to time though no specific order to that effect was passed. In the year 2009, the performance of the BAMs and the Block Programme Managers (for short he reafter referred to as BPM) were sought to be assessed by a performance appraisa l committee for the District of Dhubri. Such appraisal committees were also cons tituted for the other districts of the State. Pursuant to the letter issued by t he Joint Director of Health Services cum Member Secretary, DHS Dhubri, the petit ioner presented himself before the jurisdictional District Level Appraisal Commi ttee along with relevant supporting records and also offered a presentation of 1 5 minutes duration and performed appreciably well in the deliberations. Accordin g to the petitioner, he was also Graded A by the SDM and HO of Halakura PHC on his performance appraisal report. While the matter rested at that, by the impug ned communication, he was intimated that the term of his services had not been f urther renewed on account of his unsatisfactory performance even to the minimum levels as construed by the appraisal committee. 4. The respondent No. 2, the Mission Director in his affidavit whil e denying the petitioner’s claim of providing satisfactory service has asserted that following the appraisal thereof by the Committee concerned, he was graded D i.e. average. According to the answering respondent, non-renewal of the term of his contract engagement was based on the report of the District Level Apprais al Committee as well as the State Level Appraisal Committee. The answering respo ndent indicated to an enquiry report on irregularities of Janani Surakhya Yojana (for short referred to as the JSY fund) under the Halakura Block PHC and the re sponsibility of the petitioner therefor. While admitting that the contract engag ement of two others had not been terminated it was averred that the term of the petitioner was not extended in the face of the large-scale financial irregularit ies committed in the Halakura PHC for which the petitioner as the BAM thereof wa s responsible. The answering respondent further disclosed that following the dis continuance of the petitioner, his post meanwhile has been filled up by a new in cumbent which it is submitted at the Bar, is the respondent No. 5. The affidavit of this respondent thus clearly evinces that non-renewal of the petitioner’s te rm was on two counts:- (a) unsatisfactory performance and (b) financial irregula rities in the Halakura PHC for which he was responsible. 5. The petitioner in his affidavit in reply while reiterating and r eaffirming his averments in the writ petition has apart from contending unfairne ss in action, impeached the impugned action as punitive. He has brought on recor d as well two representations submitted by him as well as the BPM of the Halakur a PHC bringing to the notice of the authorities concerned, the necessity of taki ng remedial steps vis-à-vis the affairs thereof. 6. Mr. Goswami has argued that as it is evident that non-renewal of the term of the petitioner’s contract is founded on the charge of irregularitie s pertaining to the PHC involved for which the petitioner has been held to be re sponsible and not for the level of his performance thereat, the impugned order i s visibly penal in nature. As no prior notice or opportunity of hearing had been given/accorded to the petitioner, on that count alone, the decision assailed is liable to be adjudged null and void. The learned Sr. Counsel has insisted that as persons inferior to him vis-à-vis their performance have been retained to his exclusion, the impugned action is per se unfair, unreasonable and unjust as wel l. Referring to the letter dated 23/10/2009 (Annexure B to the affidavit in oppo sition of the respondent No. 2), Mr. Goswami has maintained that no complicity o f the petitioner in any irregularity associated with the Halakura PHC being disc ernible therefrom, the very basis of the punitive step is nonest rendering it ar bitrary. As the said letter on the other hand discloses that payment to the pati ent referred to therein had been made after observing all formalities, having re gard to the nature of the duties of the petitioner, he by no means, could be hel d to be responsible for any anomaly which even otherwise is not decipherable. To buttress his arguments, Mr. Goswami has placed reliance on the decision of this Court made in Dharmeswar Baishya versus State of Assam and others, 2004 (2) GLT 253. 7. In reply Mr. Saikia has contended by referring to the job respon sibilities of a Block Accounts Manager that the enquiry vis-à-vis the complaint of irregularities relatable to the Halakura PHC having revealed involvement of t he petitioner, the decision not to renew the term of his contract is unassailabl e when judged in the perspective of public interest. He has submitted that as th e term of the contract of the Block Programme Manager for the said PHC has as we ll not been extended for the same reason, the plea of unfairness or discriminati on is misconceived, he urged. According to Mr. Saikia, the petitioner is guilty of suppression of material facts as demonstrated by the letters dated 14/11/2009 and 23/11/2009 wherein he had admitted about the anomalies in the said PHC, whi ch per se renders the impugned decision valid. The learned Standing Counsel has urged further with reference to clause 8 of the agreement that in the facts and circumstances of the case in terms thereof as well the concerned authority was w ithin his jurisdiction to take the impugned decision. 8. Mr. Goswami has responded by contending that as the impugned com munication dated 14/12/2009 did not divulge that the non-renewal of the petition er’s term of contract had been due to adverse disclosures in an enquiry against him, there was no occasion for him to refer to or produce the letters/representa tions dated 14/11/2009 or 23/11/2009 and that therefore, the plea of suppression of material facts is wholly misconceived. While contending that clause 8 of the agreement is not attracted in the facts of the case in absence of any specific finding of guilt against the petitioner, the learned Sr. Counsel has reiterated the plea of discrimination in the face of inaction on the part of the concerned respondent authorities to take necessary steps against those really accountable as mentioned in the letters/representations dated 14/11/2009 and 23/11/2009. 9. The pleadings of the parties and the arguments advanced have rec eived the due consideration of this Court. There is no wrangle at the bar that t he petitioner’s appointment as BAM though had followed a selection was contractu al in nature and though initially was for a period of six months stood extended thereafter and that he continued in service till the impugned decision was taken . It is apparent from the averments made in the affidavit of the respondent No. 2 that the decision not to extend his term of contractual appointment was predom inantly based on the enquiry report on the irregularities qua the JSY fund of th e Halakura Block PHC of which he was at the relevant time the BAM. A perusal of the letter dated 18/8/2009 (Annexure 9 to the affidavit of the respondent No. 2) , which embodies the decision of the performance appraisal committee reveals tha t not only the BAM of some other health centres had been evaluated to be at par with him having been awarded Grade D i.e. average, a few as well have been adj udged further inferior being categorised as below average and poor . This do ument when placed in juxtaposition with the order dated 3/12/2009 of the Mission Director of NRHM and the Secretary, Health and Family Welfare Department, Gover nment of Assam, disclose that several BAMS who had been graded at par or below t he petitioner had been retained. It is thus unmistakeably obvious that the non-r enewal of the term of the petitioner’s contract has been precisely on the basis of the enquiry report vis-à-vis the alleged irregularities relatable to Halakura PHC. 10. There is no dissension at the bar that no formal notice or oppor tunity of hearing had been given/accorded to the petitioner before the impugned decision on that consideration had been taken. A scrutiny of the letter dated 23 /10/2009 which contains a gist of the enquiry report concerning the irregulariti es at the Halakura PHC reveal that one beneficiary named Jyotsna Roy w/o Pradip Roy of village Kooimari Pt.-V had been shown to have delivered a child at Halaku ra CHC in terms of its delivery register on 24/2/2009 at 5.35 P.M., the process having been conducted by Dr. M. Choudhury (incharge) and GNM (M.Roy) and accompa nied by ASHA, Suchitra Sarkar. The ASHA confirmed that the delivery of the child had occurred at Halakura CHC. The beneficiary when queried admitted to have rec eived Rs. 500/- from ASHA but the payment register reveals that she had received an amount of Rs. 1,400/- by putting her right thumb impression though she was a literate. This letter which projects the findings of the enquiry does not in un ambiguous terms per se substantiate the involvement of the petitioner in any irr egularity or anomaly relatable to the Halakura PHC. Though in terms of the job r esponsibilities of a Block Account Manager he is to look after amongst others th e maintenance of the books of accounts, fund disbursement and utilisation of fun d vis-à-vis NRHM activities, the findings in the enquiry as summarised in the le tter dated 23/10/2009 do not per se conclusively prove his culpability in any an omaly or irregularity noticed thereat. In other words the letter neither proclai ms any inculpatory involvement of the petitioner either in the incident referred to therein or in general vis-à-vis the affairs of the PHC nor any finding of th e concerned respondent authority to that effect has been either recorded therein or is discernible from the available contemporaneous record. This letter to the contrary records that the payment was made by observing all the formalities. 11. The letters dated 14/11/2009 and 23/11/2009 as well do not as co ntended on behalf of the respondents contain any unqualified admission of any gu ilt or involvement of the petitioner in the anomalies or irregularities relating to the affairs of the Halakura PHC so as to obviate the necessity of a prior op portunity of hearing to him before taking a decision not to renew the term of hi s contract on the charge of being exclusively responsible therefor. In that view of the matter, having regard to the pre-requisites engrafted in clause 8 of the agreement, no action thereunder could have been taken to his detriment without affording him an opportunity to represent against the same. Clause 8 of the agre ement though authorises the concerned authority to terminate the services of a c ontractual appointee as envisaged therein, it does not vest him with unbridled a nd uncontrolled power to take a decision to the detriment of the person concerne d without first adhering to the basic norms of fair play in action. More over it is also not clear as to whether if such an action has been taken under clause 8 , the same has been in consultation of the Chairman as well as the Member Secret ary of the District Health Society as peremptorily required in terms thereof. Th e above view finds support from the principle propounded in the decision of this Court in Dharmeswar Baishya versus State of Assam and others, 2004 (2) GLT 253. 12. The upshot of the above discussion is that the impugned decision is unsustainable in law and is thus interfered with. This Court, having regard to the nature of the imputations made and in the face of the inadequate material s on record has not recorded its findings on the correctness or otherwise thereo f vis-à-vis the petitioner. As the judicial intervention has been on account of unfairness in action, no prior notice or opportunity of hearing having been give n/afforded to the petitioner, this determination notwithstanding it would be ope n for the concerned respondent authorities to initiate appropriate action as wou ld be deemed fit and advisable in the facts and circumstances of the case. The petition therefore stands allowed in the above terms. No cos ts.