Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 157 (GAU)

Dharmeswar Baishya v. State of Assam

2004-03-03

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. By this writ petition petitioner has made a challenge to an order dated 21.11.2002 by which his services as Sub-Inspector of Police, Border has been terminated with retrospective effect, i.e., from 24.5.02. The brief facts leading to the filing of the instant writ petition are as follows: 2. The petitioner who is an ex-serviceman was selected by the Sainik Board for his appointment as S.I. of Police (B) under the Respondent. He was appointed on contract basis by an order of appointment dated 22.6.1992. Such appointment to the petitioner was under the scheme formulated by the Government of India in the Ministry of Home Affairs as contained in their letter dated 3rd June, 1987. 3. Being aggrieved by certain terms and conditions of service the petitioner approached this court by filing the writ petition which was registered and numbered as C.R No. 1698/95. Another writ petition was filed making a similar grievance and the same was registered and numbered as CR No. 2065/95 and the same was preferred by one Abdul Quadir holding the same rank as that of the petitioner. Both the writ petitions were heard together and the learned Single Judge by Judgment and order dated 29.2.96 allowed the writ petitions by holding that the writ petitioners shall continue in their services till continuation of the scheme and that their appointments were in the nature of permanent appointment. Being aggrieved, the Respondents preferred writ appeal No. 154/96 which was allowed by judgment and order dated 1.9.2000 by setting aside the judgment and order of the learned Single Judge passed on 29.2,1996. Petitioners thereafter preferred Special Leave petition (Civil) No. 17226 before the Apex Court and the learned counsel for the parties submits that the said Special Leave Petition is still pending disposal. The Apex Court while issuing Notice ordered for maintaining status quo by order dated 17.11.2000. 4. The services of the petitioner was dispensed with before he could approach this court by filing the aforesaid writ petition. However during the pendency of the writ proceeding the petitioner was reinstated in service on the basis of interim direction passed by this court. Thereafter, again his service was terminated. However, on the basis of order passed by the Division Bench in writ appeal No. 154/96, he was again reinstated in service by order dated 3.8.98. 5. However during the pendency of the writ proceeding the petitioner was reinstated in service on the basis of interim direction passed by this court. Thereafter, again his service was terminated. However, on the basis of order passed by the Division Bench in writ appeal No. 154/96, he was again reinstated in service by order dated 3.8.98. 5. By the impugned order dated 25.11.02 petitioner has been discharged from his service with effect from 24.5.02 which is stated to be the date of his purported unauthorised absence from his place of posting. By yet another order dated 15.11.02 the pay of the petitioner was ordered to be held up with effect from 13.11.02 on the ground of his alleged unauthorised absence from duty. 6. Affidavit in opposition has been filed on behalf of the Respondent No. 4 justifying the action taken against the petitioner by the aforesaid impugned order. It is the case of the Respondent that the petitioner has been removed from service for irregular attendance/unauthorised absence from duty on specific report from S.P. Kamrup. Such removal of the petitioner from service was entirely on disciplinary ground for violation of Clause 12 of the Contract Agreement. Affidavit further reveals that the impugned order was issued for the dereliction of duty. Such termination of service of the petitioner was proceeded by an enquiry conducted by the S.P. Kamrup. The enquiry Report was submitted on 29.2.02 and it was on that basis the services of the petitioner have been dispensed with. Thus, it is the case of the Respondents that the services of the petitioner has been dispensed with and he has been discharged from his service on the ground of misconduct which could be found on the basis of enquiry conducted by the Superintendent of Police, Kamrup. The termination of service of the petitioner was on the basis of the said enquiry report and the same was the foundation towards removal of the petitioner from service. 7. Mr. D. Choudhury, learned counsel appearing for the petitioner submitted that on the face of it the impugned order dated 21.11.02 is not sustainable in as much as the services of the petitioner has been dispensed with retrospective effect. He submitted that the jural relationship between the petitioner and the Respondents had continued till 21.11.02. Same could not have been set at naught by terminating the services with retrospective effect. He submitted that the jural relationship between the petitioner and the Respondents had continued till 21.11.02. Same could not have been set at naught by terminating the services with retrospective effect. He further submitted bringing the distinction between 'motive' and 'foundation' that the alleged misconduct on the part of the petitioner being the foundation of issuance of the order of termination same is not sustainable. He also submitted that the order of termination is innocuous but from the averment made in the affidavit, it is clear that the services of the petitioner have been dispensed with on the ground of misconduct and that too casting stigma. Referring to the various decisions of the Apex Court Mr. Choudhury submitted that even in case of temporary or contractual service, the same cannot be dispensed with casting a stigma on the incumbent. 8. In the instant case the admitted position is that the petitioner, in the own words of the Respondents has been removed from service on the ground if misconduct and that too on the basis of an enquiry conducted behind the back of the petitioner, Mr. Choudhury submitted. He also submitted that the Apex Court being in session of the matter and there being already an order to maintain status quo, the services of the petitioner could not have been interfered with by the Respondents in the manner and method as has been done. Referring to Clause 12 of the terms of appointment Mr. Choudhury submitted that before invoking Clause 12 of the said terms of appointment, the petitioner was entitled to a notice. Mr. Choudhury submitted that a Clause like Clause 12 in terms of appointment cannot be said to be legal in as much as same gives arbitrary and unlimited power to the employer which is bound to be misused as in the instant case. 9. Mr. B.J. Talukdar, learned counsel appearing for the Respondent submitted that the action initiated against the petitioner was strictly in terms of the Contract Agreement. Clause 12 of the Contract Agreement having provided power of termination of service of the incumbent on the ground of his unauthorised absence, there is nothing wrong towards issuance of the impugned order, he submitted. Mr. B.J. Talukdar, learned counsel appearing for the Respondent submitted that the action initiated against the petitioner was strictly in terms of the Contract Agreement. Clause 12 of the Contract Agreement having provided power of termination of service of the incumbent on the ground of his unauthorised absence, there is nothing wrong towards issuance of the impugned order, he submitted. He finally submitted that even if the order of termination of service of the petitioner is set aside the petitioner would not be entitled to reinstatement in his service in view of the fact that terms of appointment has already come to an end in as much as the period of contractual service was on the basis of year to year renewal. Mr. Choudhury has referred and placed reliance on the following decisions: (a) AP State Federation of Coop Spinning Mills Ltd Anr. v. P. V. Swaminathan. (b) Dr Mrs. Sumati P. Share v. Union of India (c) Dipti Prakash Banerjee v. Satyendra Nath Bose, National Centre for Basic science, Calcutta and Ors. (d) 2001(3) GLT 404 Sumal Das v. State of Tripura (e) Pavendra Narayan Verma v. Sanjoy Gandhi PGI of Medical Science and Anr.. (f) Prabhudayal Birari v. M.P. Rajya Nagrik Apurti Nigam Ltd. 10. The above decisions have been cited and referred to by Mr. D. Choudhury, learned counsel for the petitioner to bring home his point that the services of the petitioner could not have been terminated on the ground of misconduct without granting him any opportunity of being heard. 11. On the face of the impugned order, same appears to be innocuous. In the case of P.V Swaminathan (supra), the Apex Court dealing with a similar case pertaining to contractual service held the order of termination of service of the incumbent to be illegal, in view of the disclosure made in the affidavit in opposition and that a particular letter of Sr. Govt. Officer was the foundation of termination. In the instant case as has been revealed in the affidavit, the services of the petitioner was dispensed with on the basis of enquiry conducted behind the back of the petitioner and it was that enquiry and the report thereof which were the foundation of termination of services of the petitioner. 12. In the case of Mrs. In the instant case as has been revealed in the affidavit, the services of the petitioner was dispensed with on the basis of enquiry conducted behind the back of the petitioner and it was that enquiry and the report thereof which were the foundation of termination of services of the petitioner. 12. In the case of Mrs. Sumati P. Share (supra) the termination of service of the incumbent was held to be illegal since she was not indicated about the deficiency in her service. In the case of Dipti Banerjee (supra) the Apex Court dealing with a situation as in the instant case made the distinction between 'termination simpliciter' and 'termination punitive'. The Apex Court after considering as to under what circumstances the probationer's services, can be said to be founded on misconduct and in what circumstances could it be said that allegations were only a 'motive' and as to when an order of termination of probationer can be said to contain an express stigma, held that stigma can be gathered by referring back to proceedings referred to in termination order. In the instant case affidavit filed on behalf of the Respondent No. 1 clearly reveals the foundation towards termination of the service of the petitioner. The Respondents have not made any effort to withhold their stand relating to the dispensation of the services of the petitioner. They have disclosed in the affidavit by making statements that the services of the petitioner have been dispensed with on the basis of enquiry conducted pertaining to alleged unauthorised absence of the petitioner. The statements made in the affidavit also cast a stigma on the petitioner which the Apex Court has deprecated time and again if the same is made the foundation towards termination of the services of incumbent. 13. The above view has been endorsed in the case of Pavendra Narayan Verma (supra), in the case of Sumal Das (supra) the Division Bench of this court dealing with the case of a Rifleman in Tripura State Rifles who was discharged from service having found that such discharge was on the ground of misconduct and indiscipline set aside the order of discharge. This case also supports the case of the petitioner. This case also supports the case of the petitioner. The case of Prabhudayal Birari (supra) deals with the kind of a situation in which the services of the incumbent is dispensed with without giving one month's notice as contemplated in the service condition. Such an Order is held to be void and illegal. In the instant case also Clause (6) of the terms and condition of the appointment stipulates issuance of one month's notice which was admittedly not done. 14. The order of termination of the services of the petitioner on the face of it is innocuous. However from the revelation made in the affidavit in opposition there is no manner of doubt that the services of the petitioner was dispensed with on the ground of alleged misconduct. Such misconduct was attributed to the petitioner on the basis of an enquiry conducted behind his back. The said enquiry and the report thereof were the foundation for termination of services of the petitioner. Clause (12) of the Contract cannot give the Respondents unbridled power. The application of principle of natural Justice that no man should be condemned unheard intends to prevent the Authority from acting arbitrarily effecting the rights of the concerned person. No decision must be taken which will affect the right of any person without his/her first being informed of the case and giving him/her an opportunity of putting his/her case involving civil consequences and must be made as per rules of natural justice. 15. Clause (12) of the Terms of appointment cannot be said to expressly exclude the application of the principles of natural justice. In the instant case, no opportunity was given to the petitioner to have his say in the matter when the enquiry was conducted. The submission made on behalf of the petitioner that as a responsible officer he was engaged in field works towards detection of Foreign Nationals and the petitioner had to remain away from office on many occasions for the purpose and that the same cannot be attributed to be unauthorised absence from duty cannot be said to be unjustified. The submission made on behalf of the petitioner that as a responsible officer he was engaged in field works towards detection of Foreign Nationals and the petitioner had to remain away from office on many occasions for the purpose and that the same cannot be attributed to be unauthorised absence from duty cannot be said to be unjustified. However, without going into that aspect of the matter, I am of the considered opinion that since the very foundation on the basis of which the services of the petitioner was dispensed which without disclosing the same to the petitioner and that since he was not even associated in the process of making that foundation, the impugned orders are not sustainable and liable to be set aside and quashed. 16. I may gainfully refer to the decision of the Apex Court as reported in (D.K. Yadav v. JMA Industries Ltd.). In that case the services of the incumbent was terminated invoking the provisions of Certified Standing Order which permitted termination of services on ground of absence without or beyond the period of sanctioned leave for more than 8 days. The Apex Court held that such a provisions cannot be said to exclude the principles of natural justice. The Apex Court held that the principles of natural justice and duty to act in just, fair and reasonable manner must be read into the Standing Orders. I may also gainfully refer to the decision of the Apex Court as reported in (Deokinandan Prasad v. State of Bihar and Ors.) dealing with the similar provisions permitting termination of service on the ground of absence from duty over a period of 5 years. The Supreme Court observing that no opportunity was given to the incumbent set aside the order by which the automatic termination of services of the incumbent was notified. 17. As noticed above, the services of the petitioner has been dispensed with not by termination simpliciter but has been so done by an order which is as reflected in the affidavit is punitive in nature. The services of the petitioner has been terminated primarily on the ground of alleged misconduct on the part of the petitioner, such misconduct has been made the foundation for termination of services of the petitioner. The services of the petitioner has been terminated primarily on the ground of alleged misconduct on the part of the petitioner, such misconduct has been made the foundation for termination of services of the petitioner. The enquiry which was conducted to establish the guilt against the petitioner was so conducted behind the back of the petitioner and no opportunity was given to him to have his say in the matter. It is in this context the aforesaid decisions come into play. 18. In view of the aforesaid discussions of facts and law, I have no hesitation to set aside and quash the order dated 21.11.02 and 15.11.02 (Annexures 14 and 15 respectively). Petitioner shall be deemed to be in service from the date of termination of his service in continuation of his earlier service. Once he is deemed to be in service, the order passed by the Apex Court directing maintenance of status quo shall hold the field in respect of the petitioner. The petitioner shall also be entitled to all service benefits including back wages. Petitioner shall be reinstated in service forthwith. 19. No order as to costs.