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2000 DIGILAW 206 (GAU)

Pappu Kumar v. State of Mizoram

2000-06-09

P.C.PHUKAN

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By this application under Article 226 of the Constitution, the petitioner has challenged the order dated 29.11.95 discharging him from service. 2. I have heard Mr. G.Raju, learned counsel for the petitioner as well as Mr. T.Vaiphei, learned Assistant Advocate General for the State respondents. I have also considered the records of the case. 3. The petitioner Pappu Kumar along with five others was appointed as a Constable in the 1st Battalion Mizoram Armed Police by an order dated 14.11.95 d (Annexure PI). After a few days the Commandant who appointed him was replaced by another Commandant. After 15 days of his appointment, the new Commandant (respondent No. 4) discharged him from service by the impugned order dated 29.11.95 (Annexure P2) which reads as under: ORDER “R/C 647 Pappu Kumar S/o Shi v Prasad Gupta of this unit is hereby discharged from service with immediate effect. His service rendered are verified upto date with A/Roll and BO Book etc. Sd/-Commandant 1st Ban. MAP Aizawl, Mizoram No. Bn/R/PF-647/95/910 dated Aizawl, the 29th Nov.'95.” 4. In para 7 of the writ petition, it is alleged that immediately after the respondent No. 4 took over, the petitioner was called to his office and after asking / a few questions about his same, place of birth etc, the respondent No. 4 told him that he would dismiss him as he was not in favour of appointment of any more outsider in the Battalion. In park 9 (d) of the writ petition, it is alleged that the discharge order was passed with mala fide intention on extraneous consideration. Thus there is clear pleading of mala fide against respondent No. 4 and affidavit to support such pleading. In the affidavit-in-opposition filed on behalf of the respondents, the Under Secretary to the Govt of Mizoram, Home Department, has denied the above allegation against the respondent No.4. But the respondent No. 4 against whom the above allegations are made, himself should have come forward to file an affidavit-in-opposition to deny these allegations. It rather appears intriguing that he has chosen not to do so. In the affidavit-in-opposition filed by on the Under Secretary, Home Department, there is an averment that the discharge, order was passed as the performance of the petitioner was found not satisfactory. It rather appears intriguing that he has chosen not to do so. In the affidavit-in-opposition filed by on the Under Secretary, Home Department, there is an averment that the discharge, order was passed as the performance of the petitioner was found not satisfactory. But the petitioner was allowed to remain in service only for 15 days, and needless to say .that it was too short a period to assess his performance. The petitioner's pleading of mala fide against the respondent No.4, latter's silence in this regard, his hasty act of discharging the former, who was found fit for appointment after necessary tests by his predecessor in office only 15 days back, the tall claim that the petitioner's performance could be assessed within too short a period of 15 days and the fact that before his discharge the petitioner was not told that his performance was not satisfactory are the facts and circumstances which indicate that the petitioner was discharged from service not because of his unsatisfactory performance but because of extraneous consideration. In Dr. Mrs Sumati's case reported in AIR 1989 Supreme Court 1431, it has been held - “If services of an ad hoc employee is to be discontinued on ground of unsuitability it is proper and necessary that he should be told in advance that his work and performance are not up to the mark. Without any such communication, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.” 5. Article 16 of the Constitution is violated where there has been arbitrary discrimination in terminating the service of a particular employee on the ground that he belongs to another State (Janakiraman vs. State of UP, AIR 1959 AP 185 ). It is settled law that if the termination is arbitrary, it will be violative of d Article 16 even though the employee is of an ad hoc, temporary or officiating status, or even casual employees. It has been held in Kumari Shrilekha's case reported in (1991) 1 SCC 212 that - “Every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us. It has been held in Kumari Shrilekha's case reported in (1991) 1 SCC 212 that - “Every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us. Arbitrariness is anathema to State action in every sphere and wherever the vice percolates, the Court would not be impeded by technicalities to trace it and strike it down. This is surest way to ensure the majesty of rule of law guaranteed by the Constitution of India.” 6. In view of what has been stated above, it is absolutely clear that the impugned order dated 29.11.95 (Annexure P2). discharging the petitioner from service is arbitrary and cannot be allowed to stand. The same is set aside. The petitioner shall be reinstated in service forthwith. He shall be treated as on duty from the date of discharge till the date of reinstatement for all purposes except that he shall not be paid salary for the period he was out of service, as it has been submitted at the Bar that he has been gainfully employed as a daily wage earner ever since he was discharged from service. 7. The writ petition is allowed to the extent as indicated above. No costs.