The employer decides the performance of the employee while the Court will find out if any mala fide material was taken against the termination of that employee: Tripura High Court

HIGH COURT OF TRIPURA WP(C) No. 1021 Debjani Deb Sarkar wife of Amit Choudhury R.O: Village: Indranagar P.O: Indranagar P.S. NCC Dist: West Tripura PIN:799006 Petitioner(s) Versus 1. The State of Tripura To be represented by the Secretary Health Department Govt. of Tripura New Secretariat Building New Capital Complex Kunjaban P.S. New Capital Complex Agartala West Tripura PIN 799010 2. The Director of Health Services Govt. of Tripura Agartala West Tripura 3. The ChairmanDistrict Health & Family Welfare SocietyWest Tripura Agartala 4. The ChairmanDistrict Health & Family Welfare SocietySepahijala District Bishalgarh 5. The Mission Director National Rural Health Mission Govt. of Tripura Gurkhabasti Agartala 799006 Tripura Agaratala For PetitionerFor Respondent(s) Whether fit for reporting Respondent(s) Mr. S Bhattacharjee Advocate Ms. N ChakmaAdvocate NO HON’BLE MR. JUSTICE S. TALAPATRA Judgment & OrderHeard Mr. S Bhattacharjee learned counsel appearing for the petitioner as well as Ms. N Chakmalearned counsel appearing for the respondents. The petitioner who was serving as Computer Assistant on contractual basis for strengthening of Routine Immunization Programme under State Health and Family Welfare Society Tripura has challenged the memorandum dated 03.02.2021her service was continued along with others for the period from 01.04.2020 till In the said memorandum dated 01.04.2020 the following provision has been inserted: “Continuation of services under societies will henceforth be issued on the basis of Appraisal Report as decided by the authority for 1(one) year as per existing terms & But by the impugned memorandum before the said tenure has expired the petitioner‟s service has been terminated with effect from 03.03.2021. The memorandum containing the order of termination is under challenge in this writ petition. Mr. Bhattacharjee learned counsel appearing for the petitioner has contended that if the veil is lifted from the apparent facts which led to issuance of the said memorandum terminating the service of the petitioner it will be transparent that the petitioner was transferred by the order dated 15.01.2019 to the office of the Chief Medical Officer Sepahijala from her place of posting i.e. the office of the Chief Medical Officer West Tripura. It appears from the records that the petitioner did not join the new place of posting and she continued in her earlier place of posting and according to her she was directed to continue in the previous place of posting by the Head of Office and DDO of her earlier office. Be that as it may the Mission Director NHM Government of Tripura issued a show cause notice on 31.08.2020 asking the petitioner to reply within three days from the date of receipt of that notice why the appropriate disciplinary action should not be taken against her as she had violated the office order dated 15.01.2019. The petitioner filed the reply on 02.09.2020 by stating inter alia that she was verbally permitted to work in her previous place of posting and she had discharged her duties and responsibilities there. Further she has stated in para 3 of the said reply dated 02.09.2020 as “3. That sir if I worked in violation of the transfer order dated 15.01.2019 then it would be obvious that salary would not be released in my favour. But as I was working on the basis of the verbal direction and decision of the authority salary was also released by the Head of Office and DDO from which act it is implied that my transfer order was stayed if not cancelled.” Further it appears that after the said reply by the release order dated 04.09.2020 the petitioner was asked to join her new place of posting. Accordingly the petitioner had joined in her new place of posting on 07.09.2020. But the petitioner had taken four days‟ casual leave from 08.09.2020 to 11.09.2020 due to „family affairs‟ but after expiry of the period from 08.09.2020 to 11.09.2020 she did not resume her duties in the new place of posting but had applied for extension of leave from 14.09.2020 to 13.10.2020 as for sudden transfer her children were suffering from illness and if the petitioner continued to discharge her duties at her new place of posting it would not have been possible on her that to take due care of her children. In response to her letter addressed to the Chief Medical Officer Sepahijala district for special leave for 30 days Annexure 29 to the writ petition) the Chief Medical Officer who was occupying the position of the Chairman Executive Committee District Health and Family Welfare Society sanctioned eleven days casual leave. The petitioner was not entitled to further leave as per the terms and condition of the engagement. The petitioner is only entitled to get casual leave for a period of twelve days and the petitioner is was not entitled to any other leave. In that turn of events on 09.10.2020 the petitioner made an application for her transfer to the Mission Director by detailing the mitigating circumstances with which she was confronted On 27.10.2020 the petitioner was asked by the memorandum to reply why she was absent from the duties unauthorizedly w.e.f. 04.10.2020. In response to that as it appears the petitioner filed an application to the Chief Medical Officer Sepahijala district on 28.10.2020 stating that she had filed an application for leave for thirty days on medical grounds w.e.f 23.09.2020 to 22.10.2020 and she had applied for more leave for her own illness w.e.f. 23.10.2020 to Even after receipt of the communication from the competent authority that the petitioner is not entitled to any further leave in the form of a reply to the memorandum dated 27.10.2020 the petitioner on 16.11.2020had stated that “she had come to know her medical leave was sanctioned only for eleven days i.e. up to 03.10.2020 and there had been no leave pending.” The petitioner had seriously pressed again to grant her the leave as applied. Again the petitioner filed an application to the Principal Secretary Department of Health Government of Tripura on 09.11.2020 seeking her transfer and posting in the Office of the Chief Medical Officer West Tripura district so that she can perform better. Thereafter by the memorandum dated 03.02.2021 the petitioner has been terminated giving one month‟s notice and making the termination order to be effective from 03.03.2021. The relevant part of the said memorandum dated 03.20.2021 is reproduced hereunder for reference: “As per the last en mass continuation of contractual staff working under NHM Tripura vide Memorandum No.F.3(5 3782) FWPM SHFWS 2019 09 42 dated 1st April 2020 31 03 2021 along with all other staffs of SHFWS. Now the appropriate authority has decided to terminate discontinue her service from NHM Tripura after 03 03 2021. As per terms of the is purely contractual and liable to be terminated at any i.e. the time without any reason thereof with 1(one) month notice or 1(one) month salary from either side‟ as per Colum 5 of the table below the Column 5 the effective date of termination has been provided of as 3rd March 2021.” Mr. Bhattacharjee learned counsel has submitted that those conducts have been considered behind the back of the petitioner and as such the termination order is not simplicitor one it is driven by the consideration mala fide and behind the back of the petitioner. Moreover Mr. Bhattacharjee learned counsel has submitted that in the initial engagement letter there was no clause of termination with one month‟s notice or one month‟s salary in advance. For repelling the said of submission of Mr. Bhattacharjee Ms. Chakmalearned counsel has at the outset pointed out that it is true that in the memorandum dated 27.02.2007 by which the petitioner was initially appointed there is no clause of termination but subsequently while the renewal was made by the order dated 11.01.2008 following clause was added as condition of engagement of the petitioner as contractual Computer “3. The offer of continuation is liable to be terminated at any time without assigning any reason thereof with one month‟s notice on either side.” The said clause had continued in all orders of renewal subsequently including the order dated 27.12.2008 Annexure 8 to the writ petition) the order dated 07.11.2009 Annexure 9 to the writ petition) the order dated 27.09.2010 Annexure 10 to the writ petition) the order dated 29.11.2011 the order dated 09.10.2012 the order dated 30.09.2013 the memorandum dated 23.02.2015the memorandum dated 13.05.2016 and finally by the memorandum dated 01.04.2020 the petitioner was engaged for further one year with effect from 02.04.2020 till 31.03.2020 and in the said memorandum it has been clearly stated that the existing terms and conditions will apply in respect of the said engagement. Ms. Chakma learned counsel has thus contended that the clause of termination had been quite inserted as term of engagement. Therefore the petitioner‟s plea that there is no such term in the engagement does not survive the test of scrutiny. Ms. Chakmalearned counsel has submitted that the documents which have been submitted by the petitioner in respect of her absence were on the record but those conducts of the petitioner have not been reflected as the ground of impugned memorandum terminating the service of the petitioner. But the respondent does not deny those records reflecting to the unacceptable absence of the petitioner. According to her the show cause notice was issued and it is apparent from the reply that cause are not satisfactory. Thus the allegation that the decisions were taken without the knowledge of the petitioner about her absence is completely unfounded. On the contrary the records reflect that the petitioner was given opportunities to explain her absence. Thus the allegation of mala fide shall fall flat. Having appreciated the submission of the learned counsel for the petitioner this court finds that no material has been taken into consideration against the petitioner which were not placed for the petitioner‟s response. Whether the petitioner was performing satisfactorily or not will be decided by the employer. This court yes may lift the veil to find out whether any material has been taken mala fide against the petitioner for purpose of termination. It may be stated here that lifting the veil is not the end of the matter. Only after lifting of the veil if it is seen that some materials were considered by the employer which were not made known to the terminated employee or no opportunity was afforded to him her for response and the employer was prompted by those to terminate the petitioner in such circumstances the court may interfere. But in the present case the materials those are apparently utilized for assessment have been made known to the petitioner and placed for response. As such the competent authority was at liberty to take a decision on retention of the petitioner in the service. Ms. Chakma learned counsel has stated that the action of the respondent is not tainted by mala fide. Hence this court does not find any infirmity in the order of termination. The said order of termination has been issued within the terms of the contract of engagement. No other premise subsists which may persuade this court to interfere with the order of termination. As consequence this writ petition stands dismissed. There shall be no order as to costs. JUDGE satabdi 

Summary: The petitioner was not entitled to further leave, as per the terms and conditions of the engagement. Such an opinion was made by The Hon’ble High Court of Tripura through the bench led by The Hon’ble Mr. Justice S. Talapatra in the matter of Debjani Deb Sarkar Vs. The State of Tripura and Ors. [WP(C) No. 102 of 2021].  The facts of the case were associated with the petitioner who was working under State Health and Family Welfare Society, Tripura as a Computer Assistant on a contractual basis. The petitioner was appointed for 11 months at the beginning and such was renewed from time to time and such was repeated again through a memorandum to continue the work. The petitioner’s service was terminated before the completion of the tenure mentioned in the said impugned memorandum. Thereby, the said termination was challenged.  The counsel representing the petitioner stated that if the veil was lifted from the facts that resulted in the issuance of the said impugned memorandum then it would be clear that the petitioner was transferred by an order dated 15.01.2019. It appeared that failed to join the new place of transfer and continued her work from the previously posted place and according to the petitioner, she was directed to do so. A showcase was issued by the Mission Director NHM, Government of Tripura wherein the petitioner was asked to reply in three days stating why disciplinary action should not be taken against her since she violated office order. In reply, she had stated that she was orally told to work in the previous posting place.  After the reply was submitted, she was asked to transfer to the new place but upon joining the petitioner took four days of casual leave due to ‘family affairs’ but after the end of the leave, she did not join and again applied for a leave of about 1 month. The petitioner was not entitled to any further leave and was entitled to a casual leave of 12 days. Still, she was unauthorizedly absent from her work.  Considering all the facts, The Hon’ble Court stated that “Ms. Chakma (Saha), learned counsel has stated that the action of the respondent is not tainted by mala fide. Hence, this court does not find any infirmity in the order of termination. The said order of termination has been issued within the terms of the contract of engagement. No other premise subsists which may persuade this court to interfere with the order of termination. As consequence, this writ petition stands dismissed.”