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2006 DIGILAW 179 (GAU)

M. Tomba Singh v. State of Manipur and Anr.

2006-02-23

T.NANDA KUMAR SINGH

body2006
Heard Mr. Kh. Tarunkumar, learned counsel for the petitioner as well as Ms. Ch. Bidyamani Devi, learned GA for the respondent Nos.1 and 2. [2] By this writ petition the petitioner is assailing the office memorandum being No. L (104)/MDS/84 dated 2nd December, 1999 issued by the Project Director, Manipur Development Society, Imphal. [3] The fact of the case, stated in short, of the petitioner's case is that the petitioner was appointed as recommended by the DPC as Section Officer in the MDS, Imphal vide order of the Project Director, MDS being No. A/MDS/84(II)/Vol.II dated 2.8.1984. It is also said that the petitioner had submitted joining report dated 9.8.1984 to the Administrative Officer, MDS for joining duty as S.O. The said joining report of the petitioner dated 9.8.84 was also accepted by the competent authority. Thereafter the Administrative Officer, MDS issued an order being No. A/MDS/84(II)Vol.II dated 14.8.1984 for posting the petitioner as Section Officer in the office of the Assistant Engineer-III of the Manipur Development Society, Imphal. [4] Vide order of the Administrative Officer, MDS dated 30.9.1988 the petitioner was allowed to enjoy 10 (ten) days' earned leave w.e.f. 5th September, 1988 to 14th September, 1988 with permission to prefix 4th September, 88 being the Sunday. Copy of which is available at Annexure-A/4 to the present writ petition. Unfortunately, because of certain illness the petitioner could not attend his duty for 9 (nine) days i.e. on 1st, 3rd, 4th, 5th, 7th, 10th, 11th and 12th April, 1989. For that period of nine days also the Administrative Officer, MDS issued an order dated 15.4.1999 asking the petitioner to submit written explanation as to why he should not be terminated from service forthwith by giving one month's notice. In pursuance of the said order of the Administrative Officer dated 15.4.1989 the petitioner had submitted his written explanation along with the medical certificate. After taking into consideration of the written explanation of the petitioner and also the medical certificate, the Administrative Officer, MDS issued an order being No. N(7)/MDS/84(Pt) dated 15.4.1989 for granting extra ordinary leave for the said period i.e. 1st, 3rd, 4th, 5th, 6th, 7th, 10th, 11th and 12th April, 1989. It is the case of the petitioner that the said absence of the petitioner for nine days had already been regularized vide order of the Administrative Officer dated 15.4.1998 and those period had been treated as extra ordinary leave. It is the case of the petitioner that the said absence of the petitioner for nine days had already been regularized vide order of the Administrative Officer dated 15.4.1998 and those period had been treated as extra ordinary leave. After the absence of nine days i.e. 1st, 3rd, 4th, 5th, 6th, 7th, 10th, 11th and 12th April, 1989 from duty had already been regularized under the said order of the Administrative Officer, MDS dated 15.4.1989 the Project Director, MDS issued a notice being No. (7)/MDS/84 dated 17th May, 1989 to the effect that the service of the petitioner shall stand terminated w.e.f. the date of expiry of one month from the date on which notice was served on him. The case of the petitioner is that the said notice dated 17.5.1989 is a termination order in fact and not a show cause notice inasmuch as the Project Director had already decided and taken decision to terminate the petitioner from service. The petitioner after receiving the said notice/termination order dated 17.5.1989 submitted his representation dated 20.6.1989 for revocation of the said notice/termination order dated 17.5.1989. Again the Project Director issued an order being No. (7)/MDS/84(Pt) dated 20th July, 1989 for retrospective termination of the petitioner from service. According to the learned counsel for the petitioner the said retrospective termination order is illegal and not sustainable in the eyes of law. [5] Ultimately the petitioner filed a representation dated 17.7.1990 to the Hon'ble Chief Minister, Government of Manipur requesting for taking up necessary actions for revocation of the said retrospective termination order dated 17.5.1989. The petitioner also specifically stated that he also filed representation/appeal dated 27.10.1994 to the higher authority i.e. Chairman, MDS, Government of Manipur. As the said representation dated 27.10.1994 was not disposed of by the Chairman, MDS, the petitioner had earlier approached this court by filing writ petition being C.R.No.529 of 1989 before this Court for assailing the said retrospective termination. But unfortunately, the said case was disposed of in absence of the petitioner and his counsel under order of this court dated 7.4.1999 dismissing the said Civil Rule only on the ground of delay in approaching this court. Against the said order of learned Single Judge dated 7.4.1999 the petitioner filed a writ appeal being WA No. 109 of 99 before the Division Bench of this Court. Against the said order of learned Single Judge dated 7.4.1999 the petitioner filed a writ appeal being WA No. 109 of 99 before the Division Bench of this Court. The Division Bench had passed judgment and order dated 16.7.1999 for allowing the writ appeal No. 109/99 with the observation and direction that the competent authority, i.e. the Appellate Authority/Chairman, MDS shall consider and dispose of the said representation/appeal dated 27.10.94 filed by the petitioner. But surprisingly, the appeal/representation dated 27.10.94 filed before the appellate authority/higher authority, i.e.Chairman, MDS, Government of Manipur was considered and disposed of by the Project Director, MDS. The learned counsel appearing for the petitioner strenuously submits that since the said appeal dated 27.10.94 had been filed against the retrospective termination order dated 20.7.1989 issued by the Project Director, the Project Director cannot again taken up the said appeal dated 27.10.94 against his order dated 20.7.89 for the simple reason that the Project Director cannot be the appellate authority of his own order. This court is of the considered view that it is the basic fundamental law that one cannot sit as an appellate authority of his own order. But here in the instant case, the Project Director had considered and disposed of the appeal dated 27.10.94 against his retrospective termination order dated 20.7.89 by passing the impugned office memorandum dated 2.12.1999. This court is of the considered view that only on this score the impugned office memorandum dated 2.12.1999 is not sustainable in the eye of law. [6] It is now fairly well settled that this court while exercising the judicial review of the termination order can lift the veil and see under what circumstances the termination order had been issued. In the instant case after lifting the veil, it appears that the impugned retrospective termination order dated 20.7.1989 appears to have been issued on the ground of alleged unauthorized absence of 9 days, i.e. 1st, 3rd, 4th, 5th, 6th, 7th, 10th, 11th and 12th April, 1989 which was said to have been regularized under the order of Administrative Officer, MDS dated 15.4.1989. [7] Keeping in view of the above discussion this court is of the considered view that an interference to the impugned office memorandum dated 2.12.1999 is called for. And accordingly, the impugned office memorandum dated 2.12.1999 is hereby quashed and set aside. [7] Keeping in view of the above discussion this court is of the considered view that an interference to the impugned office memorandum dated 2.12.1999 is called for. And accordingly, the impugned office memorandum dated 2.12.1999 is hereby quashed and set aside. In the result, the Chairman, MDS, Government of Manipur (undertaking), Imphal is directed to consider and dispose of the appeal/representation dated 27.10.94 keeping in view of the observation made in this judgment and order by passing reasoned order with human touch within a period of 3 (three) months from the date of receipt of the judgment and order of this court. Petitioner is further directed to approach the Chairman, MDS, Government of Manipur with a certified copy of this judgment and order along with copy of the appeal/memorandum dated 27.10.99 for necessary actions and compliance. To the extent mentioned above, writ petition is allowed. Parties are to bear their own costs.