Rajarshi Bhattacharjee v. State of Arunachal Pradesh
2012-06-28
ADARSH KUMAR GOEL, UJJAL BHUYAN
body2012
DigiLaw.ai
JUDGMENT Ujjal Bhuyan, J. 1. This writ appeal has been filed against the judgment and order dated 15.05.2008 passed by the learned Single Judge in W.P. (C) No. 264 (AP) of 2007 whereby the writ petition filed by the appellant challenging the order of termination from service was dismissed. The facts of the case may be briefly noted. 2. The appellant was appointed as Pharmacist under the respondents on 31.12.1988 initially on adhoc basis. The adhoc service of the appellant was extended from time to time. The appellant was so engaged in the Mobile Health Unit attached to the office of the respondent No. 4. Subsequently, a Departmental Selection Committee was constituted and the appellant appeared before the said committee. On the recommendation of the Departmental Selection Committee, the appellant was appointed as Pharmacist on regular basis and put on probation for a period of one year by order dated 15.10.1990. 3. The respondent No. 4 sought for clarification from the Director of Health Services, Arunachal Pradesh about the eligibility of the appellant for appointment as Pharmacist. On receipt of necessary clarification from the Director and on completion of the probationary period, the service of the appellant as Pharmacist was regularized in the year 1992. 4. After more than 13 years of his regularization, the respondent No. 4 wrote to the Secretary, West Bengal Board of Secondary Education on 09.08.2006 seeking clarification about the genuineness of the Higher Secondary Examination Certificate issued to the appellant by the said Board. When the West Bengal Board of Secondary Education furnished the information as sought for which was in favour of the appellant, the respondent No. 4 then wrote to the West Bengal Pharmacy Council seeking various information about the appellant including a certified copy of his Diploma in Pharmacy. 5. According to the appellant, he had produced all the required certificates in original before the Departmental Screening Committee. After scrutiny of the same and on being satisfied, he was recommended for regular appointment. Thereafter, as the appellant completed the probation period successfully, his service was regularized. The appellant submitted a representation dated 25.09.2006 before the respondent No. 4 stating the above. 6.
After scrutiny of the same and on being satisfied, he was recommended for regular appointment. Thereafter, as the appellant completed the probation period successfully, his service was regularized. The appellant submitted a representation dated 25.09.2006 before the respondent No. 4 stating the above. 6. 17 years after his initial appointment and 14 years after his regularization, the respondent No. 4 issued notice dated 13.12.2006 to the appellant asking him to submit original copy of his Diploma in Pharmacy, failing which it was stated that his service would be terminated. The appellant in his reply dated 15.12.2006 reiterated his contention made in his representation dated 25.09.2006. 7. The respondent No. 4 by order dated 05.01.2007 terminated the service of the appellant without holding any departmental inquiry. The appellant thereafter filed appeal against the order of termination. As the same was not disposed of, he approached this Court in WP (C) No. 2117 of 2007 and this Court by an order dated 07.05.2007 directed the appellate authority to dispose of the appeal within a fixed period by a speaking order. 8. The appellate authority by the order dated 13.6.2007 rejected the appeal of the appellant. 9. The respondents contested the writ petition by filing counter affidavit. They contended that the appellant had failed to produce the required certificates in original and, therefore, the authority was justified in terminating his service. The respondents also doubted the certificate of registration issued by the West Bengal Pharmacy Council to the appellant under Section 32B of the Pharmacy Act, 1948, which provides for special provision for registration of displaced persons, which has been defined to mean any person displaced from his place of residence in any area now forming part of Bangladesh after April 14, 1957 to March 25, 1971 on account of civil disturbances or fear of such disturbances: 10. Feeling aggrieved, the appellant approached this Court by filing W.P. (C) No. 264 (AP) of 2007. As already noticed above, the learned Single Judge dismissed the writ petition. 11. Heard Ms. J. Paul, learned counsel for the appellant and Mr. R.K.D. Choudhury, learned State counsel, Arunachal Pradesh. 12. Learned counsel for the appellant submits that the service of the appellant having been regularized, he was a Government servant. Therefore, he could not have been terminated from service without holding a departmental inquiry.
11. Heard Ms. J. Paul, learned counsel for the appellant and Mr. R.K.D. Choudhury, learned State counsel, Arunachal Pradesh. 12. Learned counsel for the appellant submits that the service of the appellant having been regularized, he was a Government servant. Therefore, he could not have been terminated from service without holding a departmental inquiry. She contends that the view taken by the learned Single Judge to the contrary is unsustainable and requires reconsideration. 13. The learned State counsel supports the decision of the learned Single Judge. 14. The submissions advanced at the Bar have been duly considered. 15. For adjudication of this appeal, without entering into the technicalities and details of the allegations brought by the respondents against the appellant, the core issue which would require consideration of the Court is whether the appellant's service could have been terminated without holding a departmental inquiry. 16. Before answering the above issue, the relevant portion of the judgment of the learned Single Judge may be noticed, which is quoted hereunder: 14. From the above narration, it is clear that the petitioner has not been able to satisfy his employer with requisite testimonials about his Diploma in Pharmacy qualification and there is also serious doubt, having regard to his date of birth, as to whether his enrollment under the West Bengal Pharmacy Council was justified. Even for such registration he had not produced his professional qualifications and was registered under the special provision made for displaced person. But his claim of working at the tender age of 10 as a Compounder under the doctor is quite unrealistic and unbelievable. Thus the petitioner appears to have secured employment through fraudulent means. For these reasons, the disciplinary authority decided to terminate the services of the petitioner. 15. In this case, ample opportunities were given to the petitioner to meet the charge and set the records straight and merely because the impugned order was not preceded by a departmental inquiry, the impugned action of the authorities cannot be held to be vitiated, as no prejudice has been caused to him for such denial. 17. The learned Single Judge has taken the view that non-holding of departmental inquiry did not vitiate the termination order as no prejudice has been caused to the appellant. 18. We are unable to agree with the above view expressed by the learned Single Judge.
17. The learned Single Judge has taken the view that non-holding of departmental inquiry did not vitiate the termination order as no prejudice has been caused to the appellant. 18. We are unable to agree with the above view expressed by the learned Single Judge. As has already been noticed above, the appellant had rendered more than 17 years of continuous service as Pharmacist under the respondents at the time of termination, which includes more than 14 years of service after regularization. He was regularized in service on the recommendation of the Departmental Selection Committee and after successful completion of the probation period. On such regularization, the appellant become a regular Government employee and, therefore, entitled to the protection under Article 311 of the Constitution of India. The intense inquiry and the scrutiny made by the respondents preceding the termination only reinforces the view that in a case such as the present one, holding of departmental proceeding could not have been dispensed with. 19. The appellant has claimed that all the relevant testimonials were produced before the Departmental Selection Committee, which on scrutiny of the said documents, recommended the appellant for regular appointment. Thereafter he was regularized. Once the service of an employee is regularized, there has to be a sense of security of service. After 15 years or so of regular service, an employee may not be able to produce the concerned documents in original. This is not unusual, more so, in respect of a displaced person who had to leave his home and hearth in what was then East Pakistan because of civil disturbances. The controlling authority cannot be permitted to jeopardize the service career of an employee depending upon his individual views and perceptions. Given an opportunity, such an employee may be able to produce necessary evidence to substantiate his claim. Such a possibility cannot be ruled out. Denial of such an opportunity would definitely cause prejudice to the affected employee and would vitiate his termination. 20. In view of the discussions made above, we answer the issue formulated above in the negative holding that the appellant's service could not have been terminated without holding a departmental inquiry. Accordingly, this appeal is allowed.
Denial of such an opportunity would definitely cause prejudice to the affected employee and would vitiate his termination. 20. In view of the discussions made above, we answer the issue formulated above in the negative holding that the appellant's service could not have been terminated without holding a departmental inquiry. Accordingly, this appeal is allowed. The judgment and order of the learned Single Judge dated 15.05.2008 passed in WP (C) No. 264 (AP) of 2007 along with the order of termination dated 05.01.2007 and the appellate order dated 13.06.2007 are hereby set aside. The appellant would be reinstated in service maintaining continuity of his service without back wages. However reinstatement of the appellant would not debar the respondents from holding departmental proceeding if the circumstances so warrant and if they so desire. 21. Writ petition is accordingly allowed to the extent indicated above. No cost. Petition allowed