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2002 DIGILAW 15 (GAU)

Tyabur Rahman v. State of Assam

2002-01-07

RANJAN GOGOI

body2002
RANJAN GOGOI, J. — The petitioner who was appointed as Hindi teacher In Borshila M.E. School has filed the instant petition seeking interference of this Court with the order dated 26.8.91 terminating the service of the petitioner. The present writ proceeding has been instituted on the following facts : 2. The petitioner was appointed as Hindi teacher in Borshila M.E. School under the jurisdiction of District Elementary Education, Karimganj with effect from 1.4.1974. The aforesaid appointment of the petitioner was duly approved by the Deputy Inspector of Schools and the school was provincialised in the year 1978. While the petitioner was in service, a controversy with regard to the genuineness of the certificates submitted by the petitioner as a proof of his having passed the qualifying examination cropped up and by order dated 25.1.82 the petitioner was released from service. Aggrieved, the petitioner instituted Title Suit No. 32/82 before the Civil Court and the learned Court by the judgment and decree dated 26.3.84 declared thc-release of the ' petitioner as illegal and in-operative in law. By the aforementioned judgment and decree, the Court held the petitioner as deemed to be in service, but at the same time liberty was also granted to the defendants in the suit to proceed, in a proper manner, to verify the question of genuineness of the certificates submitted by the petitioner. The aforesaid judgment and decree of the trial Court, it may be mentioned, was affirmed in appeal. Thereafter, by order dated 25.10.84 the authority of the State Govt. directed for reinstatement of the petitioner in service with all consequential benefits. The petitioner was, however, allowed to resume duties only on and from 26.12.85. The salary of the petitioner from December 1981 to December, 1985 was not paid and though the salary was paid from the month of January, 1986 to January 1987, thereafter, again, such payment of salary had not been forthcoming. While the matter was so situated, the petitioner was served with a show cause notice under the provisions of Assam Services (Discipline & Appeal) Rules, 1964 asking the petitioner to show cause with regard to the charges and allegations contained in the aforesaid notice dated 27.10.87. It may be noticed herein that the aforesaid charges and allegation brought against the petitioner was in respect of the same issue of alleged forged/fabricated certificate. It may be noticed herein that the aforesaid charges and allegation brought against the petitioner was in respect of the same issue of alleged forged/fabricated certificate. On 2.11.87 the petitioner by a written communication requested the authority to make available to the petitioner certain documents referred to in the show cause notice dated 27.10.87 so as to enable him to file an effective reply. The aforesaid request made was kept pending, which compelled the petitioner to submit a representation to the Secretary to the Govt. of Assam, Education Department on 17.7..90. As no action was forthcoming on the part of the state authority, the petitioner initiated a proceeding before the Assam Administrative Tribunal which was registered as appeal case No. 16 AT A/91. The learned Tribunal by its judgment and order dated 9.2.91 disposed of the said case with a direction that the representation of the petitioner pending before the Secretary to the Govt. of Assam, Education Department be disposed of within a period of three months. Thereafter, on 15.7.91, the Secretary to the Govt. of Assam, Education Department passed an order directing the District Elementary Education Officer, Karimganj to dispose of the departmental proceeding pending against the petitioner within 40 days. The said authority, namely the District Elementary Education Officer, Karimganj by a communication dated 30,7,91 asked the petitioner to submit his reply to the show cause notice dated 27.10.87 \within five days from the date of receipt of the communication in question. The petitioner by letter dated 3.8.91, once again reiterated his request for inspection of the documents and the same having been allowed, the petitioner filed his reply in respect of the charges brought against him on 9.8.91. It may be noticed herein, that in the said reply, the petitioner categorically denied the charges brought against him. Thereafter on 26.8.91 an order was passed by the District Elementary Education, Karimganj terminating the services of the petitioner with effect from 25.11.82. 3. Aggrieved the writ petitioner once again approached' the Assam Administrative Tribunal by instituting a proceeding registered as appeal case No. 150 AT A/91. The learned Tribunal by judgment and order dated 6.5.92 dismissed the said appeal inter alia holding that the order of termination of the service of the petitioner being a termination simpliciter, no infirmity can be attached to the order of termination. The learned Tribunal by judgment and order dated 6.5.92 dismissed the said appeal inter alia holding that the order of termination of the service of the petitioner being a termination simpliciter, no infirmity can be attached to the order of termination. The aforesaid finding was recorded notwithstanding the fact that before passing the order dated 26.8.91, no enquiry into the charges brought against the petitioner was held or conducted by the authority. The learned Tribunal by the aforementioned judgment and order however held that the retrospective termination of the petitioner with effect from 25.11.82 was not correct and that the termination should be effected from the date of the order i.e. 26.8.91. 4. In so far as the claim for arrear salary etc. is concerned, the Tribunal on finding the said question to be somewhat disputed directed the authority to hold an enquiry into the entitlement of the petitioner and pass appropriate orders in the matter. Thereafter, it appears that on 29.9.92 the Secretary to the Govt. of Assam, Education Department acting in compliance with the order of the Tribunal dated 6.5.92, passed an order directing the District Elementary Education Officer, Karimganj to make an enquiry as to the entitlement of the petitioner for his arrear salary. What has happened thereafter, is not on record. However, it is stated at the Bar by Mr. G.K. Bhattacharjee, learned counsel for the petitioner that the salaries of the petitioner continues to remain unpaid. It is in these facts that the present writ petition has been instituted. 5. Mr. G.K. Bhattacharjee, learned counsel appearing for the petitioner in his short and precise argument has challenged the correctness of the order passed by the authority terminating the services of the petitioner as well as the judgment and order dated 6.5.92 of the learned Assam Administrative Tribunal, on the ground that a mere reading of the order of termination dated 26.8.91 would go to show that the petitioner's service stood terminated for submission of allegedly fake certificates at the time of initial appointment in the school. The learned counsel submits, that the order of termination being punitive in nature, it was incumbent on the part of the authority to record the adverse findings only after affording the Writ petitioner every reasonable opportunity of defending the allegations brought against him. The learned counsel submits, that the order of termination being punitive in nature, it was incumbent on the part of the authority to record the adverse findings only after affording the Writ petitioner every reasonable opportunity of defending the allegations brought against him. The learned counsel has submitted that in the instant case no enquiry into the charges were held though the writ petitioner in his reply dated 9.8.91 had categorically denied the charges brought against him. Mr. Bhattacharjee, further submits that in the aforesaid facts, when no enquiry was held, the order dated 26.8.91 terminating the services of the petitioner is contrary to the principles of natural justice and termination being punitive in nature, the learned Tribunal by judgment and order dated 6.5.92 was plainly wrong in holding the termination in question to be a termination simpliciter. Mr. Bhattacharjee finally submits that in the totality of the facts of the case, as evident from the pleadings, appropriate interference may be made by this Court with the impugned order and by directing reinstatement of the petitioner with all consequential benefits. 6. Mr, H.K. Mahanta, learned State counsel appearing on behalf of the respondent authority, has sought to controvert the submissions made on behalf of the writ petitioner by contending that the fact of submission of fake/fabricated certificates by the writ petitioner is glaring and is evident from the materials on record and the authority in coming to the impugned conclusions and in terminating the services of the petitioner had acted within the permissible parameters of law. The learned State counsel has further submitted, that the petitioner being on probation, the impugned termination of his service must be necessarily understood to be a termination simpliciter requiring no opportunity to be afforded to the petitioner. 7. I have considered the rival submissions advanced on behalf of the parties. The contentions advanced by the learned State counsel that the petitioner was on probation at the relevant point of time, is not borne out by the materials on record. The termination of the services of the petitioner being on account of submission of allegedly fake/fabricated certificates, perhaps even if the petitioner had been on probation, a reasonable opportunity to show cause would have had to be given to the petitioner. The termination of the services of the petitioner being on account of submission of allegedly fake/fabricated certificates, perhaps even if the petitioner had been on probation, a reasonable opportunity to show cause would have had to be given to the petitioner. In the instant case no opportunity to defend the charges of submission of fake/fabricated certificates was afforded to the petitioner though the said charges were denied by the petitioner in his reply. In the aforesaid fact situation, it was incumbent on the part of the authorities to afford to the petitioner every reasonable opportunity to establish that the certificates submitted by him were not fake/fabricated. Such an opportunity could have been afforded only in an enquiry held against him. 8. The law as developed by numerous judicial pronouncements do not permit the judicial verdict as to the necessity of an enquiry to be determined by any assumption or presumption regarding the possible defence that the petitioner may have taken in his support. It is not for the Court to speculate as to what defence would have been put forward by the petitioner if an enquiry was held or what proof he would have been able to adduce in support of his case. On the contrary, the position in law, as has crystalised over the years, is that before any adverse conclusions are drawn in respect of charges brought, a reasonable opportunity of meeting the charges must be afforded to the affected person. Admittedly the facts of the case would disclose that the same was not done and without holding an enquiry into the charges, the authorities on consideration of the reply submitted by the petitioner had recorded the impugned findings in the order dated 26.8.91. 9. In the considered view of the Court the procedure adopted by the authority in holding the petitioner to be guilty of submission of fake/fabricated certificates is plainly contrary to the principles of natural justice and, therefore, the impugned action do call for appropriate interference by this Court in exercise of the powers under Article 226 of the Constitution of India. 10. The findings of the learned Tribunal as regard the termination of the petitioner to be a termination simpliciter does not appear to be tenable in law. 10. The findings of the learned Tribunal as regard the termination of the petitioner to be a termination simpliciter does not appear to be tenable in law. A reading of the impugned order of termination dated 26.8.91 reasonably leads to the conclusion that the said order of termination imposes a stigma on the writ petitioner. The writ petitioner having been terminated due to submission of alleged fake/fabricated certificates, it cannot be said to be a case of termination simpliciter. The order of termination is punitive in nature and therefore had to be preceded by a detailed enquiry which was admittedly not done by the authorities. The impugned order of termination dated 26.8.91 and the order of the learned Tribunal dated 6.5.92 are therefore, liable to be interfered by this Court under this law. 11. Having adjudged the impugned orders to be illegal, the next question that has to engage the attention of the Court is what relief7reliefs should be afforded to the petitioner ? Normally all consequential benefits are to be conferred if an incumbent is to be deemed to be in service, a consequence which naturally flows from judicial interference with an order of termination. Such consequential benefits would include reinstatement, back wages and continuity in service. However, judicial pronouncement of the recent years have introduced some amount of re-thinking in so far the relief of back wages is concerned. Such re-thinking has been necessitated by the fact that the judicial verdict cannot be understood to bring about a windfall to any litigant. This is precisely the reason why a concept akin to that of “no work no pay” has slowly crept in as a relevant factor in determining the entitlement for back wages as also the quantum thereof in cases of reinstatement in service. The Apex Court in the case of VinodBhanti-Vs-State ofBihar, reported in (2000) JO SCC 146 has laid down the law that back wages cannot be allowed for the period an employee did not actually work. In the present case it will not be necessary to determine as to whether the aforesaid ratio of law is one of universal application inasmuch as the facts on which the aforesaid ratio has been laid down by the Apex Court are similar to the instant case. In the present case it will not be necessary to determine as to whether the aforesaid ratio of law is one of universal application inasmuch as the facts on which the aforesaid ratio has been laid down by the Apex Court are similar to the instant case. Another aspect of the matter to be considered is that the charges brought against the petitioner, serous as they are in nature, are yet to be probed. Not only the petitioner had not been working since his termination in the year 1991 but also the charges brought against him are yet to be determined. In a more or less similar situation the Apex Court in the case of Ex-constable Chhote Lal-Vs- Union of India, reported in (2000) 10 SCC 196 has held that the relief of back wages should be held back till the employee can exonerate himself fully of the charges levelled. In the facts of the instant case, the aforesaid ratio appears to be fully applicable. 12. In so far a the entitlement of the petitioner for arrear salary upto 26.8.91 is concerned, orders in this regard have already been passed by the learned Tribunal for holding an enquiry into the entitlement of the petitioner. This Court therefore directs that the petitioner be reinstated in service within a period of 30 days from the date of receipt of the certified copy of this order. The entitlement of the petitioner to arrear salaries upto 26.8.91 shall be finalised by the authority within 45 days from the date of such reinstatement and if any amount is found due, the same may be paid to the petitioner without any deldy. In so far as the entitlement of the petitioner for arrear salary from 26.8.91 till date of reinstatement is concerned. The same shall be outcome of the final order to be passed in the departmental enquiry, if any, which may be initiated against the petitioner in terms of the present judgment. Upon the reinstatement, the petitioner shall be allowed to discharge his duties and his monthly entitlements shall be disbursed to him. 13. For the aforesaid reasons, the writ petition stands allowed and the impugned order of termination dated 26.8.91 is set aside and the order dated 6.5.92 of the learned Assam Administrative Tribunal is also set aside to the extent indicated above. 13. For the aforesaid reasons, the writ petition stands allowed and the impugned order of termination dated 26.8.91 is set aside and the order dated 6.5.92 of the learned Assam Administrative Tribunal is also set aside to the extent indicated above. The authority, if so advised, may continue with the departmental proceeding from the stage of holding of enquiry. However, any enquiry, if initiated shall be completed as expeditiously as possible. The writ petition stands closed in terms of the above directions.