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2005 DIGILAW 347 (GAU)

Hongam v. State of Manipur

2005-04-29

BIPLAB KUMAR SHARMA

body2005
ORDER B.K. Sharma, J. 1. The petitioner in the instant writ petition filed in 1997 has assailed the legality of an order issued way back in 1984 (April 30, 1984) by which his service was terminated as per the provisions of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. 2. Shortly stated the facts leading to the filing of the instant writ petition are that the petitioner was temporarily appointed as Lambus by an order dated May 5, 1980 pursuant to recommendation of the DPC. However, his service was terminated by the impugned notice dated April 30, 1984 (Annexure-4), as per the provisions of Sub-rule (1) of Rule 5 of the aforesaid Rules of 1965. By the said notice it was intimated that his service would stand terminated with effect from the date of expiry of a period of one month from the date of serving the notice on him. 3. The petitioner made time to time representations starting from May 8, 1984 to November 24, 1995 i.e. for long 11 years and eventually having failed to get any response to the said representations, approached this Court by filing a writ petition being Civil Rule No. 687/1996. The writ petition was disposed of by order dated August 16, 1996 with a direction to dispose of the representation dated November 24, 1995 within one month from the date of receipt of the order. 4. Pursuant to the said order, the representation made by the petitioner was disposed of by memorandum dated October 21, 1996 rejecting the prayer of the petitioner for setting aside the impugned notice of termination. Being aggrieved, the petitioner once again approached this Court by filing the instant writ application in 1997. 5. According to the petitioner, he being not a temporary appointee, his service could not have been dispensed with by the impugned notice dated April 30, 1998. It is the further case of the petitioner that the services of the persons appointed along with him having not been dispensed with, he has been meted out with discriminatory treatment leading to violation of Article 14 of the Constitution of India. It is the assertion of the petitioner that he was appointed against a permanent post and thus his service could not have been dispensed with holding him to be a temporary appointee. 6. It is the assertion of the petitioner that he was appointed against a permanent post and thus his service could not have been dispensed with holding him to be a temporary appointee. 6. The respondents in tune with the grounds assigned in the memorandum dated October 21, 1996 by which the aforesaid representation of the petitioner was rejected have filed their counter affidavit. As per the stand in the said affidavit, the petitioner was appointed temporarily against a temporary post, retention and extension of which was conveyed by various sanction orders. Further stand in the affidavit is that the service rendered by the petitioner during his tenure as temporary appointee was not satisfactory. The respondents have given some instances as to how the petitioner remained unauthorisedly absent from his duty and as to how he was issued with warnings from time to time. 7. I have heard Mr. S. Jayanta, learned senior counsel, assisted by Mr. Nickel Singh, learned advocate. Learned State Counsel Ms. Bidyamani Devi argued on behalf of the respondents. 8. Mr. Jayanta, learned senior counsel for the petitioner reiterated the grounds urged in the writ petition towards assailing the impugned notice dated April 30, 1984. He submitted that on the face of it, the petitioner being not a temporary appointee, the provisions of Rule 5(1) of the aforesaid Rules of 1965 could not have been invoked towards dispensation of the services of the petitioner. He submitted that since the services of other incumbents appointed along with the petitioner have been continued, there was discrimination against the petitioner. He also submitted that the services of the petitioner having been terminated on ground of misconduct, the impugned order of termination cannot be said to be an order of termination simpliciter. He placed reliance on the following decisions of the Apex Court: Manager, Government Branch Press v. D.B. Belliappa : (1979) I LLJ 156 SC, Jarnail Singh v. State of Punjab : (1986) II LLJ 268 SC. 9. Countering the above arguments made by the learned Counsel for the petitioner, Ms. Bidyamani Devi, learned State Counsel submitted that the claim made by the petitioner is grossly delayed and on that score alone the writ petition is liable to be dismissed. 9. Countering the above arguments made by the learned Counsel for the petitioner, Ms. Bidyamani Devi, learned State Counsel submitted that the claim made by the petitioner is grossly delayed and on that score alone the writ petition is liable to be dismissed. She further submitted that the petitioner having been appointed on temporary basis against a temporary post, there was no infirmity in invoking the provisions of Rule 5(1) of the aforesaid rules. 10. Referring to the instances narrated in the memorandum dated October 21, 1996 as well as in the counter affidavit, she submitted that there was no infirmity in dispensing with the services of the petitioner on ground of unsatisfactory service. Refuting the allegation of termination of the services of the petitioner on ground of misconduct, she submitted that on the face of it the notice of termination was termination simpliciter and not punitive and/or stigmatic. She also placed reliance on the decisions of the Apex Court in Kunwar Arun Kumar v. U.P. Hill Electronic Corporation : (1997) 2 SCC 191 , and State Bank of lndore v. Govindrao : (1997) I LLJ 841 SC. 11. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the facts and circumstances which have emerged from the materials on records. Before proceeding to the merit of the case I first consider the objection raised by the learned State counsel that the claim made by the petitioner is not maintainable there being gross delay and laches on the part of the petitioner. Admittedly, the petitioner has approached this Court after about 13 years of termination of his service. By now, about 21 years have elapsed since the termination notice dated April 30, 1984 was issued. It is true that he had earlier filed another writ petition in the year 1996 and the same was disposed of by an order dated August 16, 1996 providing disposal of the representation made by the petitioner. Such disposal of the writ petition was not on merit but as per the prayer made by the learned Counsel for the petitioner seeking disposal of his representation. 12. As noticed above, the impugned termination notice was issued on April 30, 1984 and even the first writ petition was filed after 12 years of such termination. Such disposal of the writ petition was not on merit but as per the prayer made by the learned Counsel for the petitioner seeking disposal of his representation. 12. As noticed above, the impugned termination notice was issued on April 30, 1984 and even the first writ petition was filed after 12 years of such termination. The second writ petition has been filed after 13 years and by now about 21 years have passed since the impugned termination notice was issued terminating the services of the petitioner. It is true that for entertaining a writ petition no limitation has been prescribed, but at the same time the rules of prudence and procedure demand that a writ petition should not be entertained relating to a cause of action after considerable delay. Learned Counsel for the petitioner submitted that since the petitioner had been making representations, there was recurring cause of action and in view of the order dated August 16, 1996 passed by this Court directing disposal of the last representation and consequent disposal of the representation by the aforesaid memorandum dated October 21, 1996 give rise to fresh cause of action. 13. As noticed above, the disposal of the earlier writ petition by order dated August 16, 1996 was not on merit, but was disposed of providing disposal of the representation as desired by the petitioner. It is in this context, learned State Counsel placed reliance on the decision in State Bank of Indore v. Govindrao (supra) in which the Apex Court dealing with a grievance relating to dismissal from service held that there was no reason for the High Court, after a long lapse of nearly 10 years from the date of the order of dismissal, to entertain the writ petition and quash the order of dismissal. The Apex Court went on to observe that the High Court should not have entertained the writ petition at all and should have dismissed the same in limine. 14. In the case of Union of India v. S.S. Kothyal : (1998) 8 SCC 682 , the Apex Court held that there was no occasion for the respondent No. 1 therein to challenge his non-promotion by filing a writ petition after 8 years of such non-promotion. In that case also, the petitioner made repeated representations in 1971, 1974 and 1977. In the case of Union of India v. S.S. Kothyal : (1998) 8 SCC 682 , the Apex Court held that there was no occasion for the respondent No. 1 therein to challenge his non-promotion by filing a writ petition after 8 years of such non-promotion. In that case also, the petitioner made repeated representations in 1971, 1974 and 1977. Although, his representation of 1977 was rejected on July 11, 1977, the Apex Court observed that there was no occasion for the said respondent to wait any longer after his first representation made in 1971 relating to his alleged non-promotion in 1971 was rejected. The Apex Court held that the learned single Judge as well as the Division Bench of the High Court completely overlooked that aspect of the matter. 15. In the instant case also although the petitioner had made his first representation against the order of termination on May 8, 1984, he kept on waiting till 1996 by filing repeated representations till 1995. His first representation being not entertained by the respondents, same was impliedly rejected and after a reasonable period of making the representation, he ought to have approached this Court. Instead he kept on waiting for long 12 years and in such circumstances and also having regard to the nature of the order passed by this Court towards disposal of his first representation as discussed above, I am of the considered opinion that the same cannot give rise to a fresh cause of action relating to the impugned order passed way back in 1984. 16. In the case of LIC of India v. Jyotish Chandra Biswas : AIR2000SC3666 , the Apex Court reversing the judgment of the Division Bench of the High Court and upholding the judgment of the learned single Judge held that the delay of 6 years in making a challenge to the order of termination from service by filing a writ petition was fatal. Similar view has been expressed in the case of Raj Bhushan Gandhi v. Secretary, Haryana State Electricity Board : 17. Similarly, in the case of State of Maharashtra v. Digambar : AIR 1995 SC 1991 , the Apex Court held that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution, if his conduct is blameworthy because of laches, undue delay, acquiesce, waive and the like. Similarly, in the case of State of Maharashtra v. Digambar : AIR 1995 SC 1991 , the Apex Court held that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution, if his conduct is blameworthy because of laches, undue delay, acquiesce, waive and the like. It observed that: Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on.... Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiesce or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 18. In the case of Ratan Chandra Sammanta v. Union of India reported in : (1993) II LLJ 676 SC, the Apex Court refused to grant relief to the petitioners, who were retrenched railway employees for approaching the Court after 15 years of such retrenchment, although their claim was for granting similar relief at par with other such retrenched railway employees. The Apex Court observed that delay itself deprives a person of his remedy available in law and if the claim of the petitioners is entertained after 15 years, same would amount to depriving a host of others who in the meantime had become eligible and are entitled to claim to be employed. 19. The Apex Court observed that delay itself deprives a person of his remedy available in law and if the claim of the petitioners is entertained after 15 years, same would amount to depriving a host of others who in the meantime had become eligible and are entitled to claim to be employed. 19. In the case of Bhoop Singh v. Union of India, as : (1993) I LLJ 260 SC, the Apex Court refused to grant similar relief to the petitioner on account of delay in approaching the Court and held that acceptance of the case of the petitioner would give rise to dislocation in the administrative set up. It observed that: The impact on the administrative set up and on other employees is a strong reason to decline consideration of a stale claim unless the delay is satisfactorily explained and is not attributable to the claimant.... Secondly inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of merit of his claim. Article 14 or the principles of non-discrimination is an equitable principle and, therefore, any relief claimed on that basis must itself be founded on equity and not be alien to that concept. Grant of the relief to the petitioner, in the present case, would be inequitable instead of its refusal being discriminatory. 20. In view of the above position of law, I am of the considered opinion that there is delay and laches on the part of the petitioner in approaching this Court and consequently, he is not entitled to relief at this stage. Any amount of indulgence to the grievance of the petitioner will lead to dislocation in the administrative setup of the respondents, which I am of the considered opinion cannot be allowed, now after a lapse of about 21 years. 21. I now consider the case on merit. Learned Counsel for the petitioner has placed reliance on the decision of Jarnail Singh (supra), to impress upon that the service of the petitioner was terminated on ground of: misconduct and it was not a termination simpliciter and that there was discrimination in terminating the service of the petitioner alone since the others were retained in their services and that led to violation of Articles 14 and 16 of the Constitution of India. The second case on which he placed reliance i.e. D.B. Belliappa (supra) was pressed into service to bring home the alleged discrimination between the petitioner and other inasmuch as according to the petitioner while others were retained in their service, he was picked up for differential treatment by way of termination of his service. 22. The aforesaid two decisions will have to be appreciated in the facts and circumstances involved in the present case. The term 'temporary service' has been defined in Rule 2(d) of the aforesaid Rules of 1965. "Temporary service" means the service of a temporary Government servant in a temporary post or officiating service in a permanent post, under the Government of India. In the instant case the petitioner was appointed by order dated May 5, 1980 on temporary basis against the post created vide order dated November 3, 1979 mentioned in the order of appointment itself. 23. The respondents both in the memorandum dated October 21, 1996 rejecting the representation of the petitioner as well as in their counter affidavit have adduced documentary evidence to establish that the post being held by the petitioner was temporary. The order by which the post was created i.e. November 3, 1979 has been annexed as Annexure - A/19 by the petitioner himself as per which the validity of the same was upto February 29, 1980. By Annexure-20 order dated April 4, 1981 the post was further extended for another year upto February 28, 1982. It is the definite case of the respondents that the post in question was not a permanent post and was a temporary post retention of which was extended from time to time. If that be so, the service of the petitioner squarely came within the definition of "temporary service. 24. Once it is held that the petitioner was holding a temporary post, the respondents were within their bounds to invoke the provisions of Rule 5(1) of the aforesaid Rules of 1965. It was on that basis the service of the petitioner was terminated by the impugned notice dated April 30, 1984. The petitioner has emphasized that even if this rule is applicable, his service having been terminated on account of his alleged misconduct and his termination being not a termination simpliciter, interference is called for to the termination notice. It was on that basis the service of the petitioner was terminated by the impugned notice dated April 30, 1984. The petitioner has emphasized that even if this rule is applicable, his service having been terminated on account of his alleged misconduct and his termination being not a termination simpliciter, interference is called for to the termination notice. It is on record that the petitioner was unauthorisedly absent during his tenure of service for a total period of 576 days. On three occasions explanations were called from the petitioner vide Memorandums dated September 28, 1982, April 8, 1983 and February 22, 1984 and the petitioner did not furnish any explanation. His unauthorized absence from duty resulted in absenteeism resorted by other staff citing the example of the petitioner. The petitioner was in the habit of leaving the office without any leave or information. It is on these grounds the service of the petitioner was dispensed with by the impugned notice dated April 30, 1984. 25. The respondents in their counter affidavit have stated that the service of the petitioner was dispensed with on ground of unsuitability without casting any stigma and that his service was terminated in public interest. It is in this back drop, the aforesaid two decisions on which the learned Counsel for the petitioner placed reliance will have to be tested. In both the cases the Apex Court found that the termination was by way of punishment and such termination was arbitrary and not on ground of unsuitability. In the second case i.e. D.B. Belliappa (supra), the Apex Court reiterated that the service of a temporary employee can be dispensed with on ground of unsuitability. This is precisely the case in hand. The impugned termination notice on the face of it is not stigmatic but a termination simpliciter. Merely because the respondents in the Memorandum dated October 21, 1996 and in the counter affidavit have stated about the unsatisfactory service records of the petitioner, same cannot be said to be by way of attributing punitive action against the petitioner on the basis of any misconduct. 26. Dealing with the question as to whether the order of termination was punitive in substance, the Apex Court in the case of J.B. Sharma v. State of M.P. : AIR1988SC703 , held in that case that there cannot be any presumption of termination being punitive. 26. Dealing with the question as to whether the order of termination was punitive in substance, the Apex Court in the case of J.B. Sharma v. State of M.P. : AIR1988SC703 , held in that case that there cannot be any presumption of termination being punitive. In that case, in the given facts and circumstances, the termination order was held to be non-stigmatic and that there was no question of reopening the matter. 27. In the case of Bikramjit Singh v. Union of India, the Apex Court while upholding the termination of service of the appellant under Rule 5(1) of the CCS (Temporary Service) Rules, 1965, as in the instant case found that the appellant in that case during his service tenure from 1973 to 1981 was absent from his service for the major parts. Similarly, in the cases of State of Haryana v. Om Prakash and K.A. Barot v. State of Gujarat : 1990 (Supp) SCC 287, the Apex Court under similar circumstances upheld the orders of termination. 28. In several cases and in particular in State of Orissa v. Ram Narayan Das : (1961) I LLJ 552 SC, the Apex Court held that the use of the words "unsatisfactory work and conduct in the termination order will not amount to a stigma". In that case the Apex Court held that an order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature. The Apex Court further observed that the fact of the holding of an enquiry is not decisive. What is decisive is, whether the order is by way of punishment. In the instant case the termination of services of the petitioner was not preceded by any full-fledged enquiry making the same to be the foundation of termination of the services of the petitioner. The appointing authority itself noticed the shortcomings and poor performance of the petitioner and it was on that basis his services were terminated after giving him due warnings to improve in his performance. Thus it was the motive and not the foundation on the basis of unsatisfactory performance, which led to termination of services of the petitioner. The appointing authority itself noticed the shortcomings and poor performance of the petitioner and it was on that basis his services were terminated after giving him due warnings to improve in his performance. Thus it was the motive and not the foundation on the basis of unsatisfactory performance, which led to termination of services of the petitioner. Such a termination cannot be said to be stigmatic. 29. The Apex Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi P. G.I. of Medical Sciences : (2002) I LLJ 690 SC, held that the language used in the order of termination, "work and conduct has not been found to be satisfactory" fall within the class of non-stigmatic orders of termination. In that case also the services of the appellant was terminated after due warning by way of extending the period of probation on ground of "work and conduct" being not satisfactory. Referring to various decisions of the Apex Court and tracing back the history of such cases in which the services of a probationer is terminated, the Apex Court held that an employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. The Apex Court observed that whenever a probationer challenges his termination, the Court's first task will be to apply the test of stigma or the "form" test and if the order survives this examination, the "substance" of the termination have to be found out. The Apex Court further observed that generally speaking when a probationer's appointment is terminated it means that the probationer is unit for job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Equally an order, which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. 30. I may also gainfully refer to the decision of the Apex Court as reported in Krishna Devaraya Education Trust v. A. Balakrishnan : [2001] 1 SCR 387. Equally an order, which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. 30. I may also gainfully refer to the decision of the Apex Court as reported in Krishna Devaraya Education Trust v. A. Balakrishnan : [2001] 1 SCR 387. In that case also the services of the probationer was terminated on the basis of the opinion formed by the committee set up for evaluation of the general performance of the probationary. The committee was of the opinion that the probationer's job proficiency was not up to the mark. Making the same explicit in the order of termination, the services of the probationer was dispensed with. The Apex Court held that there can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the appointee has to be seen if his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. The Apex Court pointed out that if the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged. 31. In the instant case, the service of the petitioner has been terminated on the specific ground of unsatisfactory performance. He was warned on number of occasions. If he had failed to improve upon his performance, the employer had the right to terminate his 5 services, which was exercised by way of impugned termination notice. Such an order of termination cannot be said to be stigmatic and must be held to be an order of termination simpliciter. 32. For the foregoing reasons, discussions and conclusions, the writ petition fails on both counts i.e. delay and laches on the part of the petitioner and also on merit. 33. Writ petition stands dismissed leaving the parties to bear their own costs. Petition dismissed