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2008 DIGILAW 849 (GAU)

Ranjit Singh v. State of Arunachal Pradesh

2008-12-16

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. D. Lazi, learned Counsel for the petitioner. Also heard Ms. G. Deka, learned Addl. Senior Govt. Advocate, for the State-respondents. 2. The petitioner was appointed to officiate as Driver on temporary basis against a regular post vide order dated 4.2.1997, issued by the Secretary (Transport), Govt. of Arunachal Pradesh. His appointment is subject to regularization by the Departmental Promotion Committee (DPC) and as stated in the appointment order, the officiating appointment would not confer on him any right to claim continuous appointment to his post and would not be counted for seniority in the grade. The petitioner joined on 5.2.1997 and has been rendering his service regularly. While he was serving so, the petitioner was served with a notice dated 13.12.2007 informing him that the State's Standing Medical Board has declared him unfit. He was asked to submit a representation in writing within a period of 15 days from the date of receipt of the notice. The petitioner, thereafter, submitted a representation on 27.12.2007, contending, inter alia, that he was not aware about the adverse medical report and made a prayer to consider his case favourably. Subsequent to the aforesaid representation, the respondent Commissioner (Transport), Government of Arunachal Pradesh, issued the impugned order dated 24.3.2008 (Annexure-V) terminating the officiating service of the petitioner with immediate effect under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, on the ground that he was always found: under the influence of alcohol from morning to evening and he was declared medically unfit by the State's Standing Medical Board conducted on 13.10.2007. The petitioner submitted a representation dated 25.3.2008 before the respondent Commissioner requesting him to furnish a copy of the said Medical Report and allowing him to continue in service followed by another representation dated 16.4.2008. Having not been considered and reinstated in service, the petitioner has approached this Court by filing this instant writ petition challenging the impugned termination order dated 24.3.2008. 3. Mr. D. Lazi, learned Counsel for the petitioner, submits that the impugned terminations order is not simpliciter but an order by way of punishment casting stigma on the petitioner. Having not been considered and reinstated in service, the petitioner has approached this Court by filing this instant writ petition challenging the impugned termination order dated 24.3.2008. 3. Mr. D. Lazi, learned Counsel for the petitioner, submits that the impugned terminations order is not simpliciter but an order by way of punishment casting stigma on the petitioner. The further submission of the learned Counsel for the petitioner is that the respondent authorities did not draw-up departmental proceeding for imposing the punishment of termination and as such, it is violative of natural justice, principle of rule of law and also of Article 311(2) of the Constitution of India. Besides, according to Mr. Lazi, learned Counsel for the petitioner, the petitioner comes under the Central Civil Services Temporary Service) Rules, 1965, and so the respondents are bound to draw-up the departmental proceeding against the petitioner to enquire into the alleged misconduct committed by him. In support of the above submissions, the learned Counsel for the petitioner has placed the decision of this Court rendered in the case of Sanjoy Debbarma v. The State of Tripura and Ors. 2006(3) GLT 47, wherein it is held that an order of termination simpliciter cannot be passed under the proviso to Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, if the order leaves a stigma on the government servant, or though apparently, it is innocuous but in reality, it is punitive. 4. Countering the submissions of Mr. D. Lazi, learned Counsel for the petitioner, it is submitted by Ms. G. Deka, learned Addl. Senior Govt. Advocate, that a Departmental Promotion Committee (DPC) was constituted on 27.11.2007 for regularization of the service of the petitioner alongwith others and subsequently, the said Departmental Promotion Committee (DPC) was held on 6.12.2007. The minutes of the said Departmental Promotion Committee (DPC) has been annexed as Annexure-1B to the counter-affidavit filed by the respondent authorities. In paragraph 2 of the said minutes of the Departmental Promotion Committee (DPC), it has been observed as follows: Since Sri Ranjit Singh was declared unfit by the Medical Board and hence, his case could not be considered. Therefore, disciplinary authority may decide the course of action as per service rules. According to Ms. G. Deka, learned Addl. Senior Govt. Advocate, since the petitioner's service was not regularized, the aforesaid service law is not applicable to the present case. Therefore, disciplinary authority may decide the course of action as per service rules. According to Ms. G. Deka, learned Addl. Senior Govt. Advocate, since the petitioner's service was not regularized, the aforesaid service law is not applicable to the present case. According to her, there is no illegality in terminating the petitioner from service since the respondent authorities served him with a notice under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, and there is no scope for drawing-up any disciplinary proceeding against the petitioner before the termination. In support of her submissions, Ms. G. Deka, learned Addl. Senior Govt. Advocate, has relied on the following decisions, rendered by the Apex Court in the cases of State of U.P and Anr. v. Kaushal Kishore Shukla (1991) 1 SCC 691 and Kendriya Vidyalaya Sangathan v. Arun kumar Madhavrao Sinddhaye (2007) 1 SCC 283 . 5. I have given my anxious considerations to the submissions made by the learned Counsel appearing for the parties. The factual position which is not in dispute is that the petitioner was appointed on officiating basis as Driver against a regular sanctioned post and his services were not regularized before the impugned termination order was issued. The further admitted position is that a detailed medical report as conducted by the State's Standing Medical Board was not furnished to the petitioner and without furnishing a copy of such report, he was declared medically unfit and thereby, he was deprived of making an effective representation before the respondent authorities and he was terminated on the ground of misconduct that he was found under the influence of alcohol from morning to evening. A stigma has been attached to the petitioner while terminating his service and it comes under the definition of misconduct. 6. The petitioner having joined his service as Driver on 5.2.1997 and being terminated on 24.3.2008, rendered more than 11 years of service and he cannot be treated as serving on officiating basis merely because his service has not been regularized by the Departmental Promotion Committee (DPC). In my considered view, since the petitioner was appointed against a regular sanctioned post and has put in more than 11 years of service, he should be deemed to be a regular employee. In my considered view, since the petitioner was appointed against a regular sanctioned post and has put in more than 11 years of service, he should be deemed to be a regular employee. It may be because of this reason, the said Departmental Promotion Committee (DPC) in its minutes dated 6.12.2007, while considering the case of the petitioner, observed that the disciplinary authority may decide the course of action as per the service rules. The Departmental Promotion Committee (DPC), thereby, indicated the authorities concerned to draw-up a departmental proceeding against the petitioner as provided under the service rules but the respondent authorities, in spite of such clear indication from the said Departmental Promotion Committee (DPC), did not care to draw-up the departmental proceeding against the petitioner and instead terminated him from service by erroneously invoking power under the provision of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. 7. In the case of Sanjoy Debbarma (supra), the petitioner was temporarily appointed in the post of Junior Operator (Pump) for a period of more than 5 years with effect from the date of his joining and he continued in service till he was terminated on 15.12.1995, i.e., after rendering 5 years of service. The said termination order was challenged as it was not a termination simpliciter. Here, in the present case also, the termination is not simpliciter; rather stigmatic in nature. The duration of service rendered by the petitioner in the instant case, as compared to the service rendered by the petitioner in the above referred case, is much longer than 5 years, to be precise, more than 11 years and as such, the same cannot be said to be on officiating basis. In my considered view, the decision rendered in the case of Sanjoy Debbarma (supra) squarely covers the case of the petitioner in the present case. There are catena of decisions rendered by the Apex Court in this regard, which I do not like to cite due to the settled position of law in this regard. 8. The case of the State of Uttar Pradesh (supra) as cited by Ms. G. Deka, learned Addl. Senior Govt. Advocate, relates to termination of service of ad hoc or temporary government servant appointed for a fixed period/term. 8. The case of the State of Uttar Pradesh (supra) as cited by Ms. G. Deka, learned Addl. Senior Govt. Advocate, relates to termination of service of ad hoc or temporary government servant appointed for a fixed period/term. The other case of Arun kumar (supra) relates to appointment of a PT Teacher on whom the notice of termination from service was served when he was serving only less than 9 months. The facts and circumstances of the aforesaid cited cases are different from the case in hand and as such, the ratio in the aforesaid cases is not applicable to the present case. 9. In view of the above facts and circumstances and upon consideration of the submissions made by the learned Counsel appearing for the parties, I hold that the impugned termination order dated 24.3.2008 as issued by the respondent authorities is punitive in nature and the petitioner having served in the department concerned as Driver for more than 11 years, is not liable to be terminated under the provision of Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. The respondent authorities, without holding departmental proceeding as required under the law, hastily terminated the petitioner's service by giving him 15 days notice in violation of Rule 5(1)(b) of the Central Civil Services (Temporary Service) Rules, 1965, which provides for serving 1(one) month's notice. In view of the above, I have no hesitation to hold that the impugned termination order dated 24.3.2008 is not sustainable under the law and the same is liable to be quashed. It is accordingly quashed. The petitioner is entitled to reinstatement in his service forthwith. The respondents are directed to take him back in service. 10. With the above observations and directions, the petition stands allowed. However, the respondent authorities are granted liberty to resort to departmental proceeding against the petitioner, if so advised, as required under the law. Petition allowed.