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2009 DIGILAW 735 (GAU)

Tapeng Gao v. State of Arunachal Pradesh

2009-10-22

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.K. Singh, learned Counsel for the petitioner. Also heard Ms. G. Deka, learned Additional Senior Government Advocate for the State respondents. 2. In this petition, the petitioner has challenged the impugned termination order dated 25.8.2008 issued by the Director, Rural Development Department, Government of Arunachal Pradesh, Itanagar, and has prayed for setting aside the same inasmuch as the termination order was issued without initiating departmental proceeding against him. 3. The petitioner has been serving as Chowkidar in the Office of Directorate of Rural Development since 1994. In the night of 25th July, 2008, while the petitioner was not on duty due to illness, a burglary took place. Again in the night of 22nd August, 2008, another burglary took place while he was on duty. The petitioner was placed under suspension vide order dated 22.8.2008 issued by the respondent Director, Rural Development Department, Itanagar, in exercise of powers conferred under Rule 10(1) of CCS (Classification, Control and Appeal) Rules, 1965, w.e.f. 22.8.2008. In the said order, he was asked to explain as to why the aforementioned incidents took place in a span of one month. The petitioner submitted his explanation on 28.8.2008 stating inter alia that in the night of 22.8.2008, he was present in the office premises but "remained sleeping in the office room near the main entrance" and "he could not hear the sound of breaking the small lock of the iron grill and he neither heard any sort of noise of breaking lock of cash room". On receipt of the said explanation, the respondent Director, Rural Development Department, Itanagar, vide impugned order dated 11.11.2008 terminated the petitioner from service with retrospective effect i.e. from 22.8.2008. In the aforesaid termination order, it has been mentioned that the petitioner is entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of one month in lieu of notice at the same rate which he was drawing immediately before termination of his service. 3. Mr. Singh, learned Counsel for the petitioner, submits that the impugned termination order dated 25.8.2008 is stigmatic submits that no departmental proceeding was initiated to enquire into the allegation of negligence of duty or misconduct on the part of the petitioner under the provision of Rule 10(1) of CCS (Classification, Control & Appeal) Rules, 1965. 3. Mr. Singh, learned Counsel for the petitioner, submits that the impugned termination order dated 25.8.2008 is stigmatic submits that no departmental proceeding was initiated to enquire into the allegation of negligence of duty or misconduct on the part of the petitioner under the provision of Rule 10(1) of CCS (Classification, Control & Appeal) Rules, 1965. He also submits that the respondent authorities are required to draw up departmental proceeding against the delinquent before awarding any punishment. The procedures prescribed in the aforesaid Rules, having not been followed, the impugned termination order, according to Mr. Singh, is arbitrary, illegal and unauthorized and the same is liable to be set aside. In support of his submissions, he cites the case of Sanjoy Debbarma v. State of Tripura and Ors. reported in 2006 (3) GLT 47. 4. Ms. G. Deka, learned Additional Senior Government Advocate appearing for the State respondents, submits that the petitioner's service was never regularized for his irregularities and he was working as Chowkidar on temporary basis and as such, no departmental proceeding was required to be initiated for removing him from service. In the present case, according to Ms. Deka, the provision under Rule 5 of CCS (Temporary Service) Rules, 1965, is applicable and the petitioner has been legally terminated under the said Rules. 5. I have considered the submissions made by the learned Counsel appearing for the parties. It is an admitted position that the petitioner has been serving as chowkidar for more than 14 years since 1994 although his services were not regularized. The order dated 22.8.2008 placing the petitioner under suspension attaches allegation of gross negligence on the part of the petitioner in carrying out his duties and as such, he was asked to explain his conduct. The petitioner replied to the said show-cause notice but the respondent authorities did not inform the petitioner as to whether his explanation was accepted or not. If his explanation was not found satisfactory, the respondent authorities could have initiated the departmental proceeding against the petitioner but without doing so, the impugned termination order dated 25.8.2008 was issued. There is no denial of the fact that the departmental proceeding was not initiated. It is to be examined as to whether the respondent authorities could abandon the departmental proceeding in the aforementioned facts and circumstances of the case. There is no denial of the fact that the departmental proceeding was not initiated. It is to be examined as to whether the respondent authorities could abandon the departmental proceeding in the aforementioned facts and circumstances of the case. It is also to be examined as to whether the impugned termination order is simpliciter or stigmatic. 6. It would be enough to refer to the statements made in paragraphs 9, 11 and 12 of the counter-affidavit of the State respondents. In paragraph 9 of the said counter, it is stated that the police department is still investigating into the aforesaid burglary cases and the petitioner has been terminated from the service for his "sustained negligence in carrying out his duties" and "it had been tried to get the incumbent in correct line by love/kindness/continuous persuasion and by warning, but all these efforts simply turned ineffective." In paragraph 11 of the same, it has been stated that the petitioner "has been proved as guilty of lapses/indiscipline for countless occasions during his 14 years of service tenure." Further, in paragraph 12 of the said counter, it has been stated that "the underlying principle that if any employee (regular/temporary) is found to be unfit for the job or not serving the purpose of employment or detrimental to the interest of organization, he/she can be terminated by the employer concerned as it happened in case of the petitioner." 7. The respondent authorities, while making the aforesaid statements/allegations, have cast blemish/stigma on the petitioner and as such, the impugned termination order cannot be regarded as simpliciter. It is rather found that the respondent authorities were bent upon to remove the petitioner from service due to alleged irregularities or indiscipline committed by him which the impugned termination order has been issued without taking recourse to departmental proceeding. 8. In Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation and Anr. reported in (2007) 10 SCC 71 , it is held that a termination order surrounding the circumstances that it was not based solely on the assessment of the probationer's work and conduct during probation, such termination is stigmatic and punitive and such order cannot be sustained. It was a case of a probationer, yet termination of his service was held illegal inasmuch as the termination was found to be stigmatic and not simpliciter. It was a case of a probationer, yet termination of his service was held illegal inasmuch as the termination was found to be stigmatic and not simpliciter. In the present case, the petitioner is in a better footing since he has been serving in the Government Department for a long period of 14 years. 9. In the case of Sanjoy Debbarma (supra), as referred to by Mr. Singh, learned Counsel, 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. Hence in the present case also, the termination is not a 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 14 years. In my considered view, the decision rendered in the case of Sanjoy Debbarma (supra) squarely covers the case of the instant petitioner. There are catena of decisions rendered by the Apex Court in this regard, which I do not like to cite herein due to the settled position of law in this context. 10. 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 11.11.2008 as issued by the respondent Director, Rural Development Department, Government of Arunachal Pradesh, Itanagar, is punitive in nature and the petitioner having served in the department concerned as Chowkidar for more than 14 years is not liable to be terminated under the provision of Rule 5 of the CCS (Temporary Service) Rules, 1965. The respondent authorities, without holding departmental proceeding, as required under the law, hastily terminated the petitioner's service in utter violation of the provisions as laid down under the CCS (Classification, Control & Appeal) Rules, 1965. In view of the above position, I have no hesitation to hold that the impugned termination order dated 11.11.2008 is not sustainable under the law and the same is liable to be set aside which I accordingly do. In view of the above position, I have no hesitation to hold that the impugned termination order dated 11.11.2008 is not sustainable under the law and the same is liable to be set aside which I accordingly do. It is further directed that the respondent authorities shall immediately reinstate the petitioner in his service. 11. It is stated at the Bar that the respondent authorities have not paid the subsistence allowance to the petitioner during his suspension period. It is, therefore, directed that the same be paid to the petitioner as per the provisions of law forthwith. It is also made clear that the respondent authorities are left with liberty to initiate departmental proceeding against the petitioner, if so advised, in accordance with law. 12. With the above observations and directions, this writ petition stands disposed of. There shall be no order as to costs.