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2000 DIGILAW 137 (GAU)

Lalhmingliana v. State of Mizoram

2000-03-29

P.C.PHUKAN

body2000
By this application under Article 226 of the Constitution of India the petitioner prays for issuance of an appropriate writ for quashing the suspension order dated 4.9.90. and for his re-instatement in service. 2. I have heard Dr. CVL Auva, learned counsel for the petitioners well as Mr. T. Vaiphei, learned Assistant Advocate General for the Stated-respondents. I have also considered the relevant records. 3. The petitioner was appointed as a Grade IV employee in Zirtiri Women's College, Aizawl by an order dated 5.3.86 (Annexure 1) passed by the Secretary of the Governing Body of the said college. The Secretary of the Governing Body is the Principal of the college. The President and Secretary of the Aizawl; Venglai Club complained to the respondent No. 3 Principal and Secretary, Zirtiri Women's College, Aizawl that the petitioner was a liquor and drug addict Pursuant to a resolution passed by the Governing Body in a meeting held on 4.9.90 the respondent No.3 passed an order dated 4.9.90 (Annexure 2) placing the petitioner under suspension with effect from 4.9.90. Memorandum of charge sheet and the substance of imputations of his misconduct (Annexure 3) dated 18.9.90 were prepared under Rule 14 of the CCS (CCA) Rules, 1965 and were furnished to ^ the petitioner. The petitioner submitted a written statement dated 25.9.90 (Annexure 4) completely denying the charged leveled against him: After conclusion of the inquiry, the Inquiry Officer, a member of the Governing Body of the college, submitted the inquiry report dated 20;8.91 (Annexure 6). The concluding portion of the report reads as under: "The article of charges framed against Shri Lalhmingliana, Chowkidar of Zirtiri Women's College (now under suspension) cannot be established for want of clear evidence of his being involved in drugs abuses because all the witnesses including the office bearers of Aizawl Venglai Youth Club who submitted me report of the behaviour of the said Shri Lalhmingliana could not give evidence, instead, they all confess that they never see him taking drugs. 4. The petitioner alleges that in spite of the above inquiry report exonerating him of the charges levelled against him, the college authority did not vacated the suspension order. 4. The petitioner alleges that in spite of the above inquiry report exonerating him of the charges levelled against him, the college authority did not vacated the suspension order. He, therefore, submitted an application (Annexure 7) for ibis reinstatement, and then a pleader's notice dated 17.10.% (Annexure 8) addressed to the respondent No. 1 Chief Secretary to the Govt of Mizorarm as well as to the respondent No.3 for his reinstatement The respondent No. 3 sent a reply dated 11.12.% (Annexure 9) the report says, inter alia: or drugs during office hours. But it was known that the. said Lalhmingliana was occasionally involved with liquor after office hours. Even in regard to his non- involvement in drugs, a clear evidence may not be established from other persons since drugs abuse have been practised as most secretly as possible. For being not caught or seen by other persons, we cannot say that the person is not involved in drug abuse.... Although termination order was not communicated to him, he knew for certain and was verbally been informed that his services stands terminated with effect from 1.1.92." 5. In para 13 of the writ petition, the petitioner denies having ever been informed verbally about his termination. Unable to get any relief the petitioner has come up before this Court in the instant writ petition under Article 226 of the Constitution, 6. The respondent No.3 Principal and Secretary of the college by a letter dated 12.5.97 to the Registry of this Court sought time to submit reply, but never filed one. The respondent No.2. Under Secretary, Higher and Technical Education \i Department, Govt of Mizoram, Aizawl however, filed an affidavit-in-opposition on behalf of the respondents. It is stated therein that by a notification dated 31.1.92 (Annexure B/l to the affidavit-in-opposition) Zirtiri Women's College was provincialised with effect from 31.1.1992 in terms of the Mizoram Colleges (Provincialisation) Rules, 1991 and that the respondent Govt has nothing to do with the events occurred prior to 31.1.92, and that since the petitioner was never a an employee of the provincialised college. The respondent Govt has no obligation to him and that the respondent Govt should not have been impleaded in this writ petition. The respondent Govt has no obligation to him and that the respondent Govt should not have been impleaded in this writ petition. It is further stated that the erstwhile Governing Body of Zirtiri Women's College by a resolution dated 17.12.91 considered that the petitioner was unfit to continue as Chowkidar and accordingly by an unanimous decision terminated his service with effect from VJ.92. A copy of the Minutes of the meeting of the b Governing Body held on 17.i2.91 is at Annexure B/2 to the affidavit-in-opposition. The relevant portion is extracted below : "The President read the inquiry report and it was carefully studied and thoroughly discussed by the members present. Being aware of the high responsibility that they .had for the welfare of the college, the Board members felt that Lalhmingliana was not fit to continue in the same position nor to take the same responsibility. It was therefore unanimously decided that the service of Lalhmingliana be terminated with effect from 1.1.92." However, the members also agreed that if and when a IV Grade post (other than that of a night Chowkidar) lies vacant in the college, Lalhmingliana be given preference over other candidates provided he applies for the post." 7. Dr. CVL Auva, the learned counsel for the petitioner, has argued that the above decision of the Governing Body was contrary to the finding of not guilty by the Inquiry Officer and that the Governing Body has not given any reason whatsoever, for differing from the finding of the Inquiry Officer. Be that as it may, the fact remains that in his reply to the pleader's notice the respondent No. 3. Principal and Secretary of the college himself said that the termination order e was not communicated to the petitioner. In fact, no termination order was ever passed to implement the decision of the Governing Body in the meeting held on 17.12.91 for terminating the petitioner's service with effect from 1.1992. In contrast, the suspension order dated 4.9.90 (Annexure 2) was passed to implement the resolution of the Governing Body in the meeting held on 4.9.90. In this regard, Mr. Vaiphei very fairly concedes that the decision of the Governing Body to terminate the petitioner's service should have been, implemented by issuing a formal termination order and by communicating the same to the petitioner. In this regard, Mr. Vaiphei very fairly concedes that the decision of the Governing Body to terminate the petitioner's service should have been, implemented by issuing a formal termination order and by communicating the same to the petitioner. In Union of India & others vs. Dinanath Shantaram Karkar & others reported in (1998) 7 SCC 569 , the Apex Court has held that - "Where the services are terminated the status of the delinquent as a Govt servant comes to an end and nothing further remains to be done in the matter, but if the order is passed and merely kept in the file, it would not be treated to be an order terminating service nor shall the said order be deemed to have been communicated." 8. In the instant case, not to speak of communicating any termination order to the petitioner, the college authority did not pass any termination order at all to implement the decision of the College Governing Body. Such a decision was merely kept in the file. Thus the petitioner is still in service, though under suspension, and will continue to be in service till issuance of a valid termination order. There is, however, no question of passing any termination order now, when such an order has not been passed in last eight years after taking a decision in this regard as far back as 17.12.91. That being so, the suspension order dated 4.9.90 (Annexure 2) cannot be allowed to stand any longer and is set aside. 9. In view of the above, it must be held that the petitioner was very much in service on 31.1.92 ie the date of provincialisation and became an employee of the provincialised college as per the Mizoram Colleges (Provincialisation) Rules, , 1991 and the Govt respondent just stepped into the shoes of the erstwhile college authority. I am, therefore, unable to accept the contention of Mr. Vaiphei that the Govt respondents have no obligation to the petitioner since he has never been an employee of the provincialised college and that the Govt respondents should not have been impleaded in this writ petition. 10. Another point on which elaborate argument has been advanced by Mr. Vaiphei is the question of laches and delay in filing this writ petition. In this regard Mr. 10. Another point on which elaborate argument has been advanced by Mr. Vaiphei is the question of laches and delay in filing this writ petition. In this regard Mr. Vaiphei has referred to a decision reported in (1995) 1 SCC 203 wherein it has been held that when respondent's delay in approaching the High Court under Article 226 resulted in creation of a long settled seniority position disturbance, plea of delay and laches was open to the appellant. However, in the same judgment in para 15 the Apex Court quoted from its earlier judgment reported in (1992) 2 SCC 598 as' under : "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches." 11. In the instant case the delay arose because respondent No.3 never passed any termination order and that he disclosed the decision of the Governing Body to terminate the services of the petitioner only in his reply dated 11.12.96 (Annexure 9) to pleader's notice dated 17.10.96 (Annexure 8), and this writ petition was filed on 15.4.1997. That apart, the illegality in treating the petitioner to be out of service without passing any termination order which is manifest cannot be sustained on the sole ground of laches. 12. Dr. That apart, the illegality in treating the petitioner to be out of service without passing any termination order which is manifest cannot be sustained on the sole ground of laches. 12. Dr. CVL Auva, the learned counsel for the petitioner, on the question of delay has referred to a decision reported in 1997 (II) GLT 213 (M/s Apollo Machinery Mart & others vs. State of Assam & others) (1997 (1) GLJ 530) wherein this Court held : "So far as the question of delay is concerned, there is no statutory time limit prescribed filing of a writ petition, although ordinarily the provisions of the Limitation Act provide guidance but no hard and fast rule can be laid down in this behalf. It is significant to note that Civil Rule 1453 of 1990 filed on 10.8.90 was 'dismissed more than 5 years thereafter on 4:9.95 on the ground of inordinate delay. Delay and laches is a matter of procedure and it does not provide with a weapon in the hand of the adversary or the opposite party to seek dismissal of a petition on this ground. If at all it is put, it must be raised at the earliest stage of motion or admission. In this view of the matter, dismissal of the petition, on the ground of inordinate delay, cannot be sustained." 13. In view of what has been stated above, the impugned order dated 4.9.90 (Annexure 2) placing the petitioner under suspension is set aside. The petitioner for, as per his appointment letter dated 6.3.86 Annexure I, he was appointed in Grade IV). The petitioner shall be paid subsistence allowance in respect of the period from the date of suspension to the date of reinstatement minus the amount already paid as subsistence allowance, the petitioner need not be paid his salary and other allowances in respect of this period. For, his reinstatement has been ordered as result of setting aside the suspension order for failure to pass a termination order even after eight years from the date of his suspension and the petitioner himself in para 10 of his writ petition said "After the suspension order your petitioner is engaging in jhum cultivation in the village of Pawlrang, Mizoram." 14. This writ petition is allowed as indicated above. In the facts and circumstances of the case, the parties are left ta bear their own costs.