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Gauhati High Court · body

1993 DIGILAW 34 (GAU)

Uttam Mandal v. State of Tripura and Ors.

1993-02-10

N.G.DAS

body1993
The petitioner by this writ petition has prayed for a writ under Article 226 of the Constitution of India to declare that the order of the Government of Tripura dated 9.3.1992 (Annexure 3) terminating his services was illegal and to pass such order as may be deemed proper. 2. The facts giving rise to this present writ petition may be stated briefly as under :- 3. The petitioner who belongs to Schedule Caste Community was appointed as Child Development Project Officer (Annexure R1) and he joined the service on 3.9.1990. But it has been alleged that although he joined on 3.9.90 he was shown to have joined on 25.9.90 and thus in the seniority list he was not shown against his due post. On 18.12.91, he anplied for higher post as he being a member of the Schedule Caste, was entitled to get certain benefits. He also sought permission to sit for some competitive examination but his application was not forwarded. On the other hand, on 3.1.92 the petitioner received a Memo under No.F.18 (378) DSWE/90, dated 1.1.92 (Annexure 1) wherein it was alleged that he, (1) was regularly irregular in performing his official duties; (2) did not respond to the Memo No. F. 18(378)-DSWE/90, dated 1.7.91 whereby he was asked to account for his unauthorised absence on 19.6.91; (3) did not call any Block Level Co-ordination Committee Meeting after 19.3.91 as Convenor for implementation of ICDS Scheme; (4) did not perform his duties properly as assigned in the manual of ICDJ5 Scheme, and (5) he failed to maintain absolute integrity and devotion to duties. By this Memo the petitioner was asked to show cause within 7 days as to why his services should not be terminated under Rule 5(1) of the Central Services (Temporary) Rules, 1965. 4. On receipt of this Memo (Annexure 1) the petitioner submitted his reply on 9.1.92 (Annexure 2) whereby he denied and disputed all the allegations made in the aforesaid Memo under Annexure 1. It was also averred by him in his reply that he was absent on 19.6.91 as on 13.6.91 he had suddenly fallen sick, and he was referred to Agartala on 14.6.91 for better treatment and after recovery he assumed his duties on 21.6.91, when he submitted his joining report along with Medical fitness certificate. It was also averred by him in his reply that he was absent on 19.6.91 as on 13.6.91 he had suddenly fallen sick, and he was referred to Agartala on 14.6.91 for better treatment and after recovery he assumed his duties on 21.6.91, when he submitted his joining report along with Medical fitness certificate. But soon after submission of this reply (Annexure 2) the respondent No.3 by his Memo No. F 10(1) DSWE/87, dated 27.2.92 (Annexure 5) divested him of powers to act as Head of Office and D DO and conferred the same on Shri Haripada Deb Nath, CDPO, Ghawmanu IDDS Project at Chailengta. It was alleged that the petitioner was divested of the powers to act as Head of office and DDO without assigning any reason and thereafter by the order dated 9.3.92 contained in Annexure 3 terminated his services wef the date of expiry of a period of one month after hearing his representation dated 9.1.1992. 5. It has, therefore, been alleged by the petitioner that although the order of termination will appear to be an innocuous one it was nothing but a camouflage with a view to avoid an enquiry as warranted by Article 311 (2) of the Constitution of India. 6. The respondent Nos.l and 2 filed reply to the writ petition in which mostly the facts stated by the petitioner have not been disputed. It was, however, averred that since his joining in the service the petitioner was not performing his duties in tre manner as he was required to do. He was posted for implementation of a benefit scheme but without doing his assigned works be used to remain absent from duties and due to his indifference to duty, local public made complaints which led to various inspection and enquiries against him and those enquiries revealed that the allegations made against him were true. The petitioner was, therefore, asked to answer about these irregularities and in reply he frankly confessed vide his letter dated 8th July, 1991 that he was not happy with his appointment for various reasons and he decided to resign from the post. It was also averred that he was not at all serious in his works and continued to commit irregularities as before. It was also averred that he was not at all serious in his works and continued to commit irregularities as before. So, ultimately his explanation was obtained in the month of January, 1992 and the explanation being found not satisfactory and he being not willing to work efficiently his services were terminated by Memo dated 9.3.1992 (Annexure 3). 7. It has further been contended that the charges which were levelled against the petitioner did not attribute any sort of stigma on bis personality. The authority simply discharged him from the duties as he was not at all serious in performing his duties. 8. In view of the contentions of the respondents the question which falls to be determined is whether order dated 9.3.92 (Annexure 3) was in truth one of dismissal for misconduct, negligence and inefficiency by way of punishment or an order of termination of the employment on probation simpliciter. 9. Before entering into the rival contentions of the parties it may be useful to quote the order of appointment which is as under : "MEMORANDUM With reference to his application dated 30.6.1989 to the Secretary, Tripura Public Service Commission /or appointment under the Government of Tripura and his subsequent interview, the Governor has been pleased to offer Shri Uttam Mandal a temporary post of Child Development Project Officer on Rs. in the scale of pay of Rs. 1700-65-2220-70-2780-75-3980/-. His pay will be fixed as per rules. The allowances at the rates admissible under and subject to the conditions laid down in Rules and Orders governing the grant of such allowances in force from time to time. 2. The terms of appointment are as follows : (1} The appointment may be terminated at any time by a months notice given either side, namely the appointee or the appointing authority without assigning any reasons. The appointing authority, however, reserves the right of termination of the services of the appointee forth with or before the expiry of the stipulated period of notice by making payment of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof. (ii) The appointment carries the liability to serve in any part of Tripura State. (iii) Other conditions of services will be governed by the relevant fules and orders in force from time to time. (ii) The appointment carries the liability to serve in any part of Tripura State. (iii) Other conditions of services will be governed by the relevant fules and orders in force from time to time. (iv) He will remain on probation for a period of two year with effect from the date of joining, The appointee shall have to stay in the Head Quarter of the ICDS Project for efficient discharged of assigned duties. In the interest of public service, the Govt. of Tripura may declare any place in Tripura as Head Quarters of the appointee concerned." 10. It is clear from the letter of appointment as above that the respondents had a contractual right to terminate the services of the petitioner without assigning any reason by giving one month's notice or before the stipulated period of notice. But the major contention of Mr. S. Deb the learned senior counsel for the petitioner is that the Government in substance dismissed the petitioner and in doing so violated the constitutional mandate of Article 311 and the canons of natural justice. It is submitted by Mr. Deb that although the order of termination is merely a determination of an employment, it is in reality a cloak for an order of punishment which can be very well gathered from the impugned order (Annexure 3). 11. Mr.Deb has drawn my attention to Annexure 3 wherein it is found that this Annexure 3 was issued after hearing the representation dated 9.1.92 of the petitioner. It is, therefore, argued by Mr. Deb that the basis and foundation of the order of termination is misconduct and inefficiency of the petitioner and this order of termination is nothing but a camouflage with a view to avoiding an enquiry as warranted by Article 311 (2) af the Constitution. In support of his contention Mr. Deb has placed reliance on the decision of fhe Apex Court in the case of Samsher Singh vs. State of Punjab, reported in AIR 1974 SC 2192 , where their Lordships held that : "The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case established that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. Even an innocuously worded order terminating the service may in the facts and circumstances of the case established that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity." 12. The next decision referred to by Mr. Deb is the decision rendered in the case of Kalipada Sarkar vs. Union of India, reported in (1989) 1 GLR 14 [1989 (1) GLJ 319] in which termination order was passed on the ground that the petitioner was found in disciplined and an explanation was called for the same. But it was held that the alleged act of indiscipline led the respondents to terminate the services of the petitioner and that this alleged act of in discipline was not merely a motive but the foundation of the order. 13. It was lastly referred to the case of Om Prakash Goel vs. Himachal Pradesh Tourism Development Corporation Ltd., Shimla & another, reported in (199J) 3 SCC 291 in which the services of the petitioner who was directly appointed as an Accountant in the Himachal Pradesh Tourism Development Corporation Ltd had been terminated with one month's notice. The petitioner challenged the order of termination before the High Court but the writ petition was dismissed in limine. The matter then came up before the Apex Court which after going through the entire materials on record came to the conclusion in paras 4 and 5 and held that:— "In a case of an order of termination even that of a temporary employee the Court has to see whether the order was made on the ground of misconduct if such a complaint was made and in the process the Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the Court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoid an enquiry as warranted by Article 311 (2) of the Constitution, then such a termination is liable to be quashed... .The termination order, in the present case, though appears to be innocuous was only intended to punish the petitioner for the misconduct, in respect of the allegations which are mentioned in the charges that were served on him. After serving the charge-sheet, as a matter of fact, the enquiry was conducted. But before the conclusion of the enquiry the termination order was passed. Therefore, it is not difficult to see that the form of the termination order is only a cloak for an order of punishment.'' 14. Placing reliance on the aforesaid decisions, Mr. Deb has contended that the impugned order was passed as the authority was not satisfied with the explanation which the petitioner submitted in response to the notice (Annexure 1) containing various allegations and that these allegations are the basis and foundation of the order impugned. 15. In reply Mr. DB Sengupta, the learned Government Advocate, appearing on behalf of the respondents has submitted that the order of termination in the instant case is not by way of punishment as it does not attach any stigma to the petitioner. Mr. Sengupta has drawn my attention to the order of termination which I have quoted earlier and has contended that the order is one of termination simpliciter without involving any stigma or penalty. It has, therefore, been contended by Mr. Sengupta that as the order in question is an order of termination of employment on probation of the petitioner, there can be no question of Article 311 of the Constitution being attracted. In support of his contention Mr. Sengupta placed reliance on the decision of the Supreme Court rendered in the case of Union of India others vs. PS Bhatt, reported in AIR 1981 SC 957 wherein it was held that the order of termination was not by way of punishment. What happened in the case was that the respondent was appointed as an Announcer in the All India Radio. He was selected by direct appointment for the post of Producer and was appointed as such on probation. While he was on probation he was reverted to the post of Announcer. The allegation against the respondent was that he had indulged in some loose talks using filthy language against his superior which was tape-recorded and sent to the Station Director. He was selected by direct appointment for the post of Producer and was appointed as such on probation. While he was on probation he was reverted to the post of Announcer. The allegation against the respondent was that he had indulged in some loose talks using filthy language against his superior which was tape-recorded and sent to the Station Director. The Station Director by his memo dated 1.12.1976 warned the respondent and thereafter he reported the matter to the Director General of All India Radio for appropriate action enclosing along with his report, a brief substance of the conversation which had been tape-recorded. The Station Director, there-after, reverted the petitioner to the post of Announcer. This order of reversion was challenged in the writ petition. It was held that the order was an order of termination of employment on probation simpliciter and reversion to the old post without attaching any kind of stigma. 16. The next decision referred to by Mr. Sengupta is the decision rendered in the case of Union Territory, Tripura vs. Copal Cbandra Dutta Chowdhury, reported in AIR 1963 SC 601 . In this case one Gopal Chandra Dutta Choudhury was appointed as constable in the Police Force of Trjpura by the Superintendent of Police, Agartala by order dated April 18, 1954. The employment was temporary and was liable to be terminated with one month's notice. On December 6, 1957 the Superintendent of Police acting under Rule 5 of the Central Services (Temporary Service) Rules, 1949 informed the respondent that his services "will be terminated wef January 6,1958 AM" The respondent presented an appeal to the Chief Commissioner against the order of termination. By letter dated April 11, 1958 the respondent was informed that as he was "an ex-convict for theft, nothing can be done for him". In reply to another application addressed to the Chief Commissioner the respondent was informed by letter dated May 26, 1958 that he was already informed in connection with his previous appeal that he was "An ex-convict m a case of theft" he "cannot be re-employed by the Administration". The respondent filed in the Court of the Judicial Commissioner, Tripura, a a petition for writ under Article 226 of the Constitution praying for writ declaring the order of the Superintendent of Police terminating his service was illegal. The respondent filed in the Court of the Judicial Commissioner, Tripura, a a petition for writ under Article 226 of the Constitution praying for writ declaring the order of the Superintendent of Police terminating his service was illegal. The Judicial Commissioner of Tripura held that the respondent was a temporary employee, but the order terminating the respondent's employment was invalid for it infringed the constitutional guarantee of protection of public servants under Article 311, which applied to temporary as well as blic servants. The Union Territory, of Tripura filed appeal before the Supreme Court which reversed the judgment of the Judicial Commissioner and held that it cannot be assumed that order ex facie one of termination of employment of a temporary employee was intended to be one of dismissal. The onus to prove that such was the intention of the authority terminating the employment must lie upon the employee concerned. On facts it was held that there was no ground for inferring that the Superintendent of Police was seeking to camouflage an order of dismissal of a temporary police constable by giving it the form of termination of employment in terms of the contract of service in exercise of the authority under Rule 5 of the Central Civil Services (Temporary Service) Rules. 17. It will appear from what is stated above that the facts of the aforesaid .rulings are different from the present one. In the present case, it will be found from Annexure 1 that a number of allegations were brought against the petitioner and his explanation was also called for vide No. F. 18 (378) DSWE/90, dated 1.1.1991. In the counter affidavit submitted by the respondent Nos. 1 and 2 it has also been averred in para 7 that there were serious complaints against the petitioner by the local public and during enquiries into those complaints it was found that those allegations were true. The order of termination (Annexure 3) also shows that this order of termination was passed after hearing the representation of the petitioner dated 9.1.1992 which he submitted it in response to Annexure 1. 18. It is, therefore apparent that the authority was not satisfied with the explanation submitted by the petitioner and hence order of termination was passed. The order of termination (Annexure 3) also shows that this order of termination was passed after hearing the representation of the petitioner dated 9.1.1992 which he submitted it in response to Annexure 1. 18. It is, therefore apparent that the authority was not satisfied with the explanation submitted by the petitioner and hence order of termination was passed. In the circumstances it has to be held that it was the alleged acts of indiscipline and negligence in performance of duties are the basis and foundation for terminating the services of the petitioner. 19. For the reasons aforesaid the termination order contained in Annexure 3 is quashed and consequently, the petitioner shall be re-instated in the service. Under the circumstances, there would be no order as to costs.