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2008 DIGILAW 438 (GAU)

State of Nagaland v. Rothrongba Sangtam

2008-06-13

P.K.MUSAHARY, T.NANDAKUMAR SINGH

body2008
JUDGMENT T. Nandakumar Singh, J. 1. The present appeal is directed against the judgment and order of the learned Single Judge dated 4.2.2008 passed in WP(C) No. 105(K) of 2007 whereby and where under the learned Single Judge quashed the impugned termination order dated 23.5.2007 terminating the service of the respondents/writ petitioners, by giving liberty to the appellants to order appropriate screening of the respondents/writ petitioners afresh in terms of Rule 9 of "Rules for recruitment of Constables of DEF and NAP in Police Department, Nagaland" and after such screening the appellants would be competent to take such decision as may be justified by the screening results by affording appropriate opportunities to the respondent/writ petitioners, if they are to be visited by adverse consequences. 2. Heard Mr. B.N. Sarma, learned Senior counsel assisted by Mr. Apok Pongener learned Counsel for the appellants as well as Ms. Z. Zhimomi, learned Counsel for the Respondents/writ petitioners. 3. A short factual matrix of the case of the respondents/writ petitioners leading to the filing of the WP (C) No. 105(K)/07 is that the respondents/writ petitioners were appointed as Constable between June, 2005 and November, 2005 in Kiphire district, Nagaland State under the orders of the Superintendent of Police, Kiphire district, Nagaland and all the appointment orders are peri materia and similar in nature. For easy reference to the nature as well as the terms and conditions of the appointment orders, one order of the appointment is quoted hereunder : Government of Nagaland. Office of the Superintendent of Police Kiphire, Nagaland Dated Kiphire, the 9th November, 2005. ORDER Having been declared medically fit by the Medical Officer, Civil Hospital, Kiphire and having been found physically fit Shri. Rothrongba Sangtam S/o Shrui Sepito Sangtam of Kisetong Village under Kiphire District is hereby appointed as Constable (GD) w.e.f. 26.10.2005 under the establishment of Superintendent of Police, Kiphire in the Scale of Pay Rs. 2750-70-3800-75-1400/- p.m. and all other allowances as are admissible from time to time. The appointment is purely temporary and is liable to be terminate from the service with one month notice from either side. Superintendent of Police Kiphire, Nagaland. 4. 2750-70-3800-75-1400/- p.m. and all other allowances as are admissible from time to time. The appointment is purely temporary and is liable to be terminate from the service with one month notice from either side. Superintendent of Police Kiphire, Nagaland. 4. The appointment orders, one of which is quoted above, show that the respondents/writ petitioners were appointed a constables after they were found medically and physically fit for appointment as Constable and also their appointment are temporary and liable to be terminated from services with one month notice from either side. 5. Admittedly the respondents/writ petitioners were terminated from service without giving one month notice to them by the appellant No. 5 Superintendent of Police, Kiphire, Nagaland vide order dated 23.5.2007 w.e.f. 17.5.2007. From the admitted fact that one month notice was not issued nor one month salary in lieu of one month notice was paid before issuing the termination order dated 23.5.2007, an unavoidable inference under the law is that the impugned termination order dated 23.5.2007 is illegal for the reasons mentioned here under : (A) The terms and conditions mentioned in the appointment order of the respondent/writ petitioners are binding not only to the respondents/writ petitioners (employee) but also to the present appellants (employer). The Apex Court in Satish Chandra Anand v. Union of India [1953] 4 SCR 655, held that the State can enter into contracts of temporary employment and impose special terms in each case, provided there are no inconsistence to the Constitution and those who chose to accept those terms and enter into contract are bound by them, even as the State is bound. As such the terms and conditions imposed by the present appellants in the appointment orders of the respondents/writ petitioners such as giving of one month notice from either sides for terminating the temporary service of the respondents/writ petitioners are binding to both the parties i.e. the respondents/writ petitioners and the writ appellants. (B) The Apex Court in Senior Superintendent, R.M.S., Cochin and Anr. v. K.V. Gopinath (1972) ILLJ 486 SC, held that the termination of temporary Government servant without paying amount due to him for the notice period is illegal and ineffective. The ratio laid down in Senior Superintendent RMS Cochin (supra) is followed by the Apex Court in Raj Kumar v. Union of India and Ors. AIR 1975 SC 536 . v. K.V. Gopinath (1972) ILLJ 486 SC, held that the termination of temporary Government servant without paying amount due to him for the notice period is illegal and ineffective. The ratio laid down in Senior Superintendent RMS Cochin (supra) is followed by the Apex Court in Raj Kumar v. Union of India and Ors. AIR 1975 SC 536 . In Raj Kumar's case (supra) pay and allowances for the notice period was not paid to Shri Rajkumar when the termination order was served on him but subsequently he was informed to collect his dues i.e. the pay and allowances for the notice period. The said termination order of Rajkumar was held to be illegal. The relevant portion of para 2 of Rajkumar's case is quoted here : Admittedly the pay and allowances were not paid to the appellant at the same time as the notice of termination of his service was served on the appellant. The only point taken on behalf of the respondents at the time when the appellant applied for grant of the certificate was that before making the final payment it had to be ensured that no Government dues were outstanding against the appellant and he was, therefore, called upon by a letter dated 26.6.1971 to collect his dues after surrendering his identity card, identity batch, C.GHS, token card and all items of uniform. As the order of termination of services is dated 3rd June and this letter is said to have been written on 26th June it is in no sense an explanation as to why appellant's salary etc. were not paid to him on the date of termination of his services. The matter squarely. falls within the decision of this Court earlier referred to. The appeal will have, therefore, to be allowed and it is accordingly allowed and the order dated 3.6.1971 is quashed. The respondents will pay the appellant's costs. 6. No reasons have been mentioned in the impugned termination order dated 23.5.2007 for terminating the service of the writ petitioners save and except that it was in pursuant to Police Kohima No. PHQ(B-1)1/20/ 2003 dated 12.5.2007. The respondents will pay the appellant's costs. 6. No reasons have been mentioned in the impugned termination order dated 23.5.2007 for terminating the service of the writ petitioners save and except that it was in pursuant to Police Kohima No. PHQ(B-1)1/20/ 2003 dated 12.5.2007. The respondents/writ petitioners in challenging the said termination order dated 23.5.2007 had clearly stated in their joint writ petition that the impugned termination orders was in fact punitive in nature and arbitrary inasmuch as the respondents/writ petitioners were terminated on the alleged ground that 16 (sixteen) of them were short in height and 8 (eight) of them are medically unfit as per the Central Screening Board which was held on 16.5.2007. The material facts for substantiating the above allegations are that the physical standard of the candidate for appointment of constables both in DEF and NAP and also the procedures and other requirements for recruitments of constables are prescribed in "Rules for recruitment of Constables of DEF and NAP in Police Department, Nagaland". Under Rule 4 of the said Rule the prescribed height of the candidates for appointment of constables is 5'3". Rule 9 of the said Rules contemplate the final screening of the constables by the Central Screening Board. For easy reference Rule 9 is quoted here under : Rule 9. Central Screening Board. The head office of the Department (Police Head-quarters) shall fix the date of dispatch of the recruits to the Training Centre Chumukedima. A Screening Board consisting of the following members shall carry out final screening of those Constables selected and appointed by the Recruitment Board. 1. IGP (Training) - Chairman 2. DIG (Training) - Member Secretary 3. Comdt./S.P.-2 - Member 4. Inspector - Member. IGP (Trg) and the DIG (Trg) automatically become the Chairman and the other members shall be appointed by PHQ. In both selection and screening process, the, Chairman of the Board will be responsible for the medical examination with special emphasis to the following : (a) Eye sight, (b) Colour Blindness, (c) Hearing, (d) Cardiovascular respiratory system, (e) Varicosevsins, (f) Any other physical deformities including flat foot, knock knee and bend elbow. The Central Screening Board shall submit its report to the Police Headquarters. A Candidate having the following physical conditions should be rejected. (a) Knocked knee, (b) flat footed, (c) Squint eye condition, (d) Amputated limb/Extremities, (e) Physical deformities, (f) Colour Blind. 7. The Central Screening Board shall submit its report to the Police Headquarters. A Candidate having the following physical conditions should be rejected. (a) Knocked knee, (b) flat footed, (c) Squint eye condition, (d) Amputated limb/Extremities, (e) Physical deformities, (f) Colour Blind. 7. The respondent writ petitioners 24 in numbers and others altogether 151 recruited in Kiphire District Nagaland, after working about 2 (two) years from the date of their initial appointment and also enjoying two increments, were asked to attend Basic Training Course at the Police Training Centre, Chumukidema and they were to report for basic training at the Police Training Centre on 15.5.2007. On the next date i.e. 16.5.2007 in compliance with Rule 9 of the said rules they were subjected to physical and medical check up. In their joint writ petition the respondents/writ petitioners further alleged that they were not subjected to physical and medical check-up by the Central Screening Board duly constituted under Rule 9 but they were subjected to physical and medical cheek up by the unauthorized persons/authority on 16.5.2007 such as (1) Major Nieliesa Chakesang and also that their heights were not correctly measured as they were pushed down from the shoulders or on the heads while taking height measurement and also that the medical cheek up was also done by following tricky, method in such a manner that the writ petitioners would not be able to read out alphabet letters shown by the Doctors. 8. It is well settled and well known that the service of even a temporary public servant is not terminated without any reasons. Reasons should be there for terminating the service of the temporary employee. But in a given case where there are allegations supported atleast by reasons that simple worded termination is in fact a punishment and has evil consequence, what is to be looked into is whether the termination order is really issued basing on any cause which may be either alleged misconduct or any alleged finding which would make the concerned temporary employee unfit for the service. The Constitution Bench of the Apex Court in Champak Lal v. Union of India AIR 1964 SC 854 and also in Purushottam Lal Dhingra v. Union of India AIR 1951 SC 36, had examined this question. The Constitution Bench of the Apex Court in Champak Lal v. Union of India AIR 1964 SC 854 and also in Purushottam Lal Dhingra v. Union of India AIR 1951 SC 36, had examined this question. The Apex Court (7-Judges) in Samsher Singh v. State of Punjuh (1974) IILLJ 465 SC, observed that the form of the order is not decisive as to whether order is by way of punishment. Even innocuously worded order terminating the service may in the facts and circumstances of the case may establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provisions of Article 311. In such a case the simplicity of the form the order will not give any sanctity. 9. The Apex Court in Liberty Oil Mills v. Union of India, [1984] 3 SCR 676, held that the expression 'without assigning any reason ' implies that the decision has to be communicated but reasons for the decision have not to be stated. The Apex Court had considered the meaning of 'without assigning any reasons' and the 'at anytime' in the service parlance in Kwnari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. and held that the expression 'at anytime' merely means that the termination may be made even during the subsistence of the term of appointment and 'without assigning any cause' means without communicating any cause to the appointee whose appointment is terminated. However, 'without assigning any cause' is not to be equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India that the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. From the ratio laid down by the Apex Court in the cases discussed above it is crystal clear that there must be reasons for termination of an employee and also termination of an appointment without existence of any cogent reasons in furtherance of the object for which power is given would be arbitrary. Power to terminate the service of a temporary employee without assigning any reasons does not mean that appointment, at the sweet will of the government, could be terminated at any time even without the existence of any cogent reasons during the subsistence of the term. 10. When an allegation is made by the employee assailing the order of termination couched in a simple term that the order of termination is in fact is one based on misconduct, the court in such case will lift the veil and see whether the order was made on the ground of misconduct/inefficiency or not and also that the order of termination simpliciters though couched in innocuous term was made on the ground of inefficiency etc. and punitive, procedure provided under Article 311(ii) of the Constitution of India should be followed before issuing the termination order. This point had been discussed by the Apex Court in Jarnail Singh and Ors. State of Punjab and Ors. (1986) IILLJ 268 SC, and observed as follows : Para. 32. The position is now well settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not. In the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311(2) of the Constitution of India, while considering the fitness and suitability of the appellants for the purpose of regularizing their services in accordance with the Government Circular made in October, 1980. Thus the impugned orders terminating the services of the appellants on the ground that "the posts are no longer required" are made by way punishment". 11. The Apex Court in Manafewr, Government Branch Press and Anr. v. D.B. Belliappa (1979) ILLJ 156 SC, observed that even in the case of termination without any reason the terminated employee challenge the termination order on the ground that termination order is arbitrary and also the termination order amount to unfair discrimination, it is a duty of the authority to dispel discharge by disclosing to the Court the reason or motive which impel it to take the impugned actions. This Court in Kalipada Sarkar v. Union of India (1989) 1 GLR 14, held that if the order of termination simpliciter is challenged on the ground that though innocuous on the face of it, it has to be regarded as an order of dismissal. The Court has to lift the veil to see the circumstance basing on which the termination order was issued. Para 8 of the judgment in Kalipada Sarkar's case (supra) is reproduced here under : Para. 8. The Court has to lift the veil to see the circumstance basing on which the termination order was issued. Para 8 of the judgment in Kalipada Sarkar's case (supra) is reproduced here under : Para. 8. It is well known that the service of even a temporary public servant is not terminated without any reason. In trying to find out whether the simple worded order of termination was termination simpliciter or a punishment what has to be looked into is whether the alleged misconduct or any other cause which lay behind the order was the mere motive or foundation of the order. This has been the view of the Apex Court right from Dhingra (1958) ILLJ 544 SC, to the case of Ravinder Kumar v. U.P. State Handloom Corporation (1988) ILLJ 73 SC. The riddle which has to be solved while dealing with a case of the present nature is whether the alleged delinquency was the motive or foundation of the order. In this regard, however, no strait jacket test his been laid down to distinguish as to whether the motive has become the foundation. It has to be decided by the Court with reference to the facts of the given case. As stated in Ravinder Kumar (supra), the motive and foundation are "certainly two points of one line ordinarily apart but when they come together motive' does get transformed and merges into foundation." In this case what had happened was that after the appellant had been appointed on 30.10.1976, he obtained two promotions while still working in the temporary status. In 1982, the appellant was placed under suspension which order had come to be issued as a result of preliminary enquiry in which it was found that the appellant was responsible for misconduct, dereliction of duty mismanagement and showing fictitious production while the appellant had acted as Deputy Production Manager. On 1.2.1983, the suspension order was revoked and on 10.2.1983 the order of termination was passed. This order was innocuously worded. After going through the law on the subject, the Apex Court ultimately held that the order was not open to challenge as the same was innocuous in terms and did not cast any stigma on the appellant, nor did it visit him with any evil consequences. It was also held that the order was not founded on misconduct. After going through the law on the subject, the Apex Court ultimately held that the order was not open to challenge as the same was innocuous in terms and did not cast any stigma on the appellant, nor did it visit him with any evil consequences. It was also held that the order was not founded on misconduct. The order was, therefore, not held as violative of Article 311(2) of the Constitution. 12. As discussed above, in the present case as the respondent/writ petitioners has challenged the termination order dated 23.5.2007 on the ground that the said termination order are punitive in nature and arbitrary, it appears that the learned Single Judge had lifted the veil to look into the reasons for terminating the service of the respondent/writ petitioners and found that 16 (sixteen) of the writ petitioners were terminated for short of prescribed height and 8 (eight) of them were terminated for being medically unfit for appointment as constables, therefore, termination of the writ petitioners are punitive. There-fore, the requirements of providing opportunity to the respondents/writ petitioners can not be dispensed with before their service were terminated. The learned Single Judge by the impugned judgment and order dated 4.2.2008 give the opportunity to the appellant to order appropriate screening of the respondents/writ petitioners afresh in the terms of Rule No. 9 and also further allow the appellant to take decisions as may be justified by screening results, by affording appropriate opportunities to the petitioners, if they are to be visited by adverse consequences. 13. Even after hearing Mr. B.N. Sarma, learned Senior Counsel appearing for the appellant at length and also giving anxious consideration of mind to the records, we fail to persuade ourselves to interfere with the impugned judgment and order of the learned Single Judge dated 4.22008 passed in W.P. (C) No. 105(R)/2007. 14. The present appeal is accordingly devoid of merit and hereby dismissed. Appeal dismissed.