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2019 DIGILAW 568 (GAU)

Tanil Dutta v. Oil India Ltd.

2019-05-08

KALYAN RAI SURANA

body2019
JUDGMENT : 1. Heard Mr. S.K. Talukdar, the learned advocate for the petitioner. Also heard Mr. S.N. Sarma, learned senior advocate, assisted by Mr. M. Hussain, learned advocate for the respondents No.1 and 2 and Mr. G. Bordoloi, learned Govt. Advocate appearing for the State respondents No.3 and 4. 2. In this writ petition filed under Article 226 of the Constitution of India, the case projected by the petitioner is that he is an ex-serviceman. As per request made by the respondent No.1 i.e. Oil India Ltd., by an order No. DMJ.10/2001 dated 06.12.2005, the respondent No.3 i.e. the District Magistrate Dibrugarh had, inter-alia, appointed the petitioner as Special Police Officer (hereinafter referred to as SPO for short). It is projected that having worked for almost 10 years without any blemish, by letter dated 11.09.2014, the Senior Manager (Security), for and on behalf of Head- Security, Oil India Ltd., had released the petitioner from their establishment. It is projected that upon his enquiry, the petitioner had came to learn that because of one days alleged unauthorised absence from duty, he was released from his engagement as SPO. Hence, the petitioner has prayed for setting aside and/or quashing the impugned (i) order No. DMJ.2/2014 dated 02.09.2014 issued by the Additional District Magistrate, Dibrugarh (respondent No.4) with the approval of the District Magistrate, Dibrugarh (respondent No.3), and (ii) order No. OIL/SEC/069(SPO)/14/1236 dated 11.09.2014, issued by the Senior Manager (Security), for and on behalf of Head- Security, Oil India Ltd., and (iii) for a direction to the respondents to restore/reinstate the petitioner forthwith. 3. The learned advocate for the petitioner has submitted that at the relevant time, Police Act, 1861 (hereinafter referred to as "1861 Act" for short) was in force and the SPOs were statutorily appointed by the District Magistrate in exercise of powers conferred under Section 17 thereof. However, thereafter the State Government had enacted Assam Police Act, 2007 (hereinafter referred to as "2007 Act" for short) and the said 1861 Act was repealed. However, under the 2007 Act, the Superintendent of Police had been vested with the power to appoint SPOs. Accordingly, it is submitted that the date on which the petitioner was released from service, the District Magistrate (respondent No.3) or his nominee or subordinate officer had no power or authority to permit the respondents No.1 and 2 to release the petitioner. However, under the 2007 Act, the Superintendent of Police had been vested with the power to appoint SPOs. Accordingly, it is submitted that the date on which the petitioner was released from service, the District Magistrate (respondent No.3) or his nominee or subordinate officer had no power or authority to permit the respondents No.1 and 2 to release the petitioner. It is submitted that the contents of the impugned order to the release of the petitioner was projected to be by virtue of an innocuous appearing order, but the said order was actually stigmatic because in the affidavit- in- opposition, the respondents No.1 and 2 had categorically admitted that the integrity of the petitioner was doubtful, that he was in-disciplined, irresponsible, had indulged in insubordination and misbehaviour with his seniors, there was dereliction of duty, etc., and that he was not fit to be posted as security personnel and accordingly, by referring to the cases of (i) Samsher Singh Vs. State of Punjab, (1974) 2 SCC 831 , (ii) Nepal Singh Vs. State of U.p. & Ors., AIR 1985 SC 84 , and (iii) Prasanta Kalita Vs. Gauhati High Court & Anr., 2016 (2) GLT 85, it is submitted that the Courts have power to lift the veil to find out if the impugned order was termination simpliciter or the same was a camouflaged but stigmatic termination order. In this context, it is submitted that in view of the contents of the affidavit- in- opposition filed by the respondents No.1 and 2, there was no room for doubt that the order of releasing the petitioner was stigmatic and, as such, the petitioner was entitled to be reinstated in service as the service of the petitioner was terminated without any disciplinary proceeding as envisaged under the Assam Services (Discipline And Appeal) Rules, 1964 (hereinafter referred to as the "1964 Rules" for short) read with Article 311 of the Constitution of India. 4. Per contra, the learned senior advocate for the petitioner has submitted that the Oil India Ltd., on need based requirement makes requisition for appointment of SPOs and accordingly, under the then applicable 1861 Act, the then District Magistrate had appointed the petitioner as SPO and placed him before respondents No.1 and 2 for maintenance of peace and for preservation and protection of their property. It is submitted that in the appointment letter dated 06.12.2005, it was clearly reflected that the appointment was on need and requirement basis, purely temporary and on daily wages basis of Rs.200/- per day, further clarifying therein that the authorities would have the freedom to release/discharge him from duty as and when necessary. Referring to a series of acts, omissions and commissions as reflected in various communications filed on record along with the affidavit - in - opposition filed by the respondents No.1 and 2, it is submitted that the officials of respondents No.1 and 2 were of the unhesitant view that continuance of the petitioner as security personnel had become a security hazard and that his behaviour with his superiors and dealing with Home Guard personnel may lead to industrial unrest and may cause untoward incident and, as such, the respondents No.1 and 2 had requested the respondent No.3 for necessary action for releasing the petitioner and to engage another SPO in his place. It is submitted that the respondents No.1 and 2 were not the appointing authority of the petitioner and, as such, the said respondents No.1 and 2 could only disclose material facts before the respondent No.3, who was the appointing authority of the petitioner, who was only entitled to take action against the petitioner. Accordingly, when the respondents no.1 and 2 received the order dated 02.09.2014 from the Addl. District Magistrate, Dibrugarh, thereby permitting them to release the petitioner, the respondents No.1 and 2, by passing the order dated 11.09.2014, had released the petitioner from SPO with immediate effect. Hence, it is submitted that as the petitioner was not the direct employee of the respondents No.1 and 2 and not his disciplinary authority, there was no necessity for the respondents No.1 and 2 to draw-up disciplinary proceeding against the petitioner, and it was for the appointing authority to either accept the causes shown by the respondents or to reject the same. It is submitted that the respondents No.1 and 2 have not terminated the service of the petitioner, but they have merely released the petitioner as SPO, as such, as the service of the petitioner has been terminated, the petitioner may agitate his grievance only against the State Government and not against the respondents No.1 and 2. It is submitted that the respondents No.1 and 2 have not terminated the service of the petitioner, but they have merely released the petitioner as SPO, as such, as the service of the petitioner has been terminated, the petitioner may agitate his grievance only against the State Government and not against the respondents No.1 and 2. It is submitted that as per the case projected by the learned advocate for the petitioner is that after repealing 1861 Act, the State had enacted the 2007 Act, wherein the Superintendent of Police is the competent authority for appointing SPOs, as the Superintendent of Police, Dibrugarh was not a party to the present proceeding, and moreover, as the State of Assam has not been arrayed as one of the respondents in this writ petition, this Court should be slow in issuing directions against the respondents No.1 and 2 in this writ petition to restore the service and/or to reinstate the service of the petitioner. It is further submitted that the 2007 Act, does not recognize SPO as a member of the State Police Force. Moreover, under Section 23(1) thereof, persons within the age of 18 to 50 can be appointed as SPO, but in the present case as per Annexure-I to the writ petition, the petitioner was born on 03.03.1959, as such, on 11.09.2014, the date when order releasing the petitioner was passed by the respondents No.1 and 2, the petitioner had crossed 55 years of age and had already crossed the maximum permissible age to serve as SPO under 2007 Act. 5. The learned Government advocate has submitted that although the respondents No.3 and 4 have not filed any affidavit- in- opposition, but he has adopted the submissions made by the learned senior advocate for the respondents No.1 and 2. 6. Having heard the learned advocate for the petitioner, learned Govt. advocate and learned senior advocate for the respondents No.1 and 2, considered the writ petition, affidavit- in- opposition filed by the respondents No.1 and 2, and affidavit- in- reply filed by the petitioner. 7. The following questions arises for decision in this writ petition:- a. Whether the drawing up of disciplinary proceeding by the respondents was a pre-requisite before the respondents No.1 and 2 had released the petitioner from his posting as SPO? 7. The following questions arises for decision in this writ petition:- a. Whether the drawing up of disciplinary proceeding by the respondents was a pre-requisite before the respondents No.1 and 2 had released the petitioner from his posting as SPO? b. Whether the two orders dated 02.09.2014 and 11.09.2014 impugned herein is required to be set aside and quashed? c. To what reliefs the petitioner entitled to? 8. All the aforesaid issues have been taken up together. At the outset, it would be fair on part of this Court to record that the learned advocate for the petitioner had strenuously made a submission that the District Magistrate, Dibrugarh on whose approval the respondent No.4 had passed the impugned order dated 02.09.2014 had no competence to allow the respondents No.1 and 2 to release the petitioner from serving as SPO in their establishment in view of the provisions of Sub- Section (1) of Section 23 of the 2007 Act. However, in order to raise this issue, no foundation is found in the statement made in the writ petition, although reference to this is made in the affidavit- in- reply. In this connection, in the opinion of this Court is that notwithstanding that what has been urged is a question of law, yet, the same must have been raised in the writ petition, other wise the respondents would be taken by surprise. In this regard, this Court finds support from the decision of the Supreme Court of India, rendered in the case of Bharat Singh Vs. State of Haryana (1988) 4 SCC 534 . Thus, the issue raised by the learned advocate for the petitioner is not entertainable on merit, having not been pleaded in the writ petition, for which none of the respondents had any opportunity and/or occasion of rebutting such point. 9. In light of the provisions of Section 17 of 1861 Act and Section 23(1) of the 2007 Act, there cannot be any dispute that if the petitioner is to be removed from service, it could only be the District Magistrate, Dibrugarh under the 1861 Act and the Superintendent of Police, Dibrugarh under the 2007 Act. 9. In light of the provisions of Section 17 of 1861 Act and Section 23(1) of the 2007 Act, there cannot be any dispute that if the petitioner is to be removed from service, it could only be the District Magistrate, Dibrugarh under the 1861 Act and the Superintendent of Police, Dibrugarh under the 2007 Act. Yet, there appears to be force in the submission made by the learned senior advocate for the respondents No.1 and 2 that the said respondents had merely got the approval from the District Magistrate, Dibrugarh (respondent No.3) and released the petitioner as SPO working under them. Therefore, as the petitioner has not produced any material to show that his service was actually terminated by the respondents No.1 and 2, the petitioner would not be entitled to restoration and/or reinstatement of his service under the respondents No.1 and 2. Moreover, as the District Magistrate, Dibrugarh was the appointing authority of the petitioner as SPO under Section 17 of 1861 Act, as the service of the petitioner was placed with the respondents No.1 and 2, they would fall into the shoes of the borrowing department and, as such, the respondents No.1 and 2 could not have successfully initiated any disciplinary proceedings against the petitioner as envisaged under the 1964 Rules, as such, this Court does not find any infirmity on part of the respondents No.1 and 2 to release the petitioner and such action cannot be interpreted as if the service of the petitioner was terminated by the respondents No.1 and 2. 10. A corollary issue would also arise in this case which is whether the petitioner is a Civil Servant within the meaning of Article 311 of the Constitution of India or a Government Servant within the meaning of Section 2(e) read with Section 5 of the 1964 Rules. In this regard, the provisions of Section 2 of the 1861 Act would make it amply clear that the police who are formally enrolled under the Police Establishment shall constitute police force. In this regard, the provisions of Section 2 of the 1861 Act would make it amply clear that the police who are formally enrolled under the Police Establishment shall constitute police force. As per Section 4 of the 2007 Act, police force shall consist of such members in various ranks and have such organisation as the Government may by general or special order so determine and that sub- Section (2) of Section 4 of the 2007 Act, prescribed that direct recruitment to the non-gazette rank shall be made through a State Level Police Recruitment Board by a transparent process. Thus, by necessary implication, appointments of SPO made in exercise of powers under Section 17 of the 1861 Act and Section 23(1) of the 2007 Act, would not make the petitioner a member of State Police establishment. In this case, the appointment of SPOs is need-based, The provisions of Section 17 of the 1861 Act is extracted below:- 17. Special police-officers.- When it shall appear that any unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any police-officer, not below the rank of Inspector, to apply to the nearest Magistrate, to appoint so many of the residents of the neighbourhood as such police-officer may require, to act as special police-officer for such time and within such limits as he shall deem necessary, and the Magistrate to whom such application is made shall, unless he sees cause to the contrary, comply with the application. 11. The provisions of Section 23 of the 2007 Act is extracted below:- 23. 11. The provisions of Section 23 of the 2007 Act is extracted below:- 23. Special police-officers.- (1) When it shall appear that any unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, the Superintendent of Police or any other officer specially empowered in this behalf by the State Government, may, at any time by a written order issued under the hand and seal of such officer, appoint for an period so specified in the appointment order, any able bodied and willing person between the age of 18 to 50 years, whom he considers fit to be Special Police Officer to assist the Police Force, with prior approval of the State Government. (2) Every Special Police Officer so appointed shall have the same powers, privileges and immunities and be liable to the same duties and responsibilities and the subject to the same authorities as an ordinary police officer. (3) Every Special Police Officer so appointed shall be honorary in nature. However, the State Government, may by special order prescribed the honorarium to be paid to such Special Police officers in the manner prescribed. 12. Therefore, if the petitioner was to assist the State Police Force, it would be difficult for this Court to take a view that the petitioner was a part of State Police Force as projected by the learned advocate for the petitioner. In this case there is no evidence that the petitioner had been paid from the State exchequer his salary, pay or allowances, but the service of the petitioner was placed on daily wage basis under the respondents No.1 and 2 with liberty granted to the respondents No.1 and 2 in petitioners appointment letter dated 06.12.2005 to release and/or discharge the petitioner from duty as and when necessary. Thus, merely because the competent authority, i.e. District Magistrate, Dibrugarh had appointed the petitioner as SPO and placed his service with the respondents No.1 and 2 as per need based, in the opinion of this Court, the petitioner has not been able to make out a case that the petitioner came within the zone of being considered as Civil Servant within the meaning of Article 311 of the Constitution of India or a Government Servant within the meaning of Section 2(e) read with Section 5 of the 1964 Rules. Therefore, in view of the discussions above, the first question is answered by holding that the drawing up of disciplinary proceeding by the respondents No.1 and 2 was not a pre-requisite releasing the petitioner from his posting as SPO. 13. In view of the provisions of Section 16 of the General Clauses Act, 1897, it is too well settled that one who would have power to appoint would have the power to suspend or dismissed. As already indicated herein before, the petitioner has not made any pleadings in the writ petition, challenging the power and authority of the Addl. District Magistrate, Dibrugarh (respondent No.4) to pass the order dated 02.09.2014 with the approval of the District Magistrate, Dibrugarh (respondent No.3) on the ground of his incompetence under Section 23(1) of the 2007 Act, wherein the Superintendent of Police would be the appointing authority. In the absence of pleadings in the writ petition, it has been already held herein before that the issue raised by the learned advocate for the petitioner is not entertainable on merit. Moreover, the letter dated 02.09.2014 is merely to authorize the respondents No.1 and 2 to release the petitioner. Even otherwise, upon the enactment of the 2007 Act, the appointment of the petitioner could have been continued only upto the age of 50 years, which the petitioner had crossed long before issuance of the impugned orders dated 02.09.2014 and 11.09.2014, by when he had crossed 55 years of age as already indicated herein before. Thus, even otherwise, as the provisions of Sub- Section (1) of Section 23 of 2007 Act, envisages appointment of SPOs from age group of 18 to 50, notwithstanding the release of the petitioner by the respondents No.1 and 2, the said two impugned orders dated 02.09.2014 and 11.09.2014, warrants no interference. Thus, even otherwise, as the provisions of Sub- Section (1) of Section 23 of 2007 Act, envisages appointment of SPOs from age group of 18 to 50, notwithstanding the release of the petitioner by the respondents No.1 and 2, the said two impugned orders dated 02.09.2014 and 11.09.2014, warrants no interference. This answers the second question to the effect that the two impugned orders dated 02.09.2014 is not liable to be interfered with. 14. The appointment of petitioner as SPO is need based and requirement basis employment of an ex-serviceman by the respondents No.1 and 2. The petitioner was under a daily wage basis employment of the respondents No.1 and 2, as appointed by the District Magistrate, Dibrugarh, who was empowered to make such appointment under the provisions of Section 17 of the 1861 Act. Thus, as this Court has held that the petitioner is not a Civil Servant within the meaning of Article 311 of the Constitution of India or a Government Servant within the meaning of Section 2(e) read with Section 5 of the 1964 Rules, the petitioner is not holding any civil post. Having crossed the permissible age under Section 23(1) of the 2007 Act, for being appointed as SPO this Court is constrained to hold that the petitioner is not entitled to any relief in this writ petition. Moreso, as the relief of reinstatement and/or restoration of service under respondents No.1 and 2 appears to be a prayer for enforcement of personal service, which cannot be specifically enforced against the respondents No.1 and 2 as there was no binding or enforceable contract of service between the petitioner and the respondents No.1 and 2, but the respondent No.3 had appointed the petitioner as SPO and placed his service with the respondents No.1 and 2, which was with a rider that they could release the service of the petitioner at any given point of time. Hence, in any view of the matter, the petitioner is not found entitled to any relief in this writ petition. The third question formulated herein before is accordingly, answered. 15. Moreover, under the provisions of Sub- Section (1) of Section 23 of the 2007 Act, the jurisdictional Superintendent of Police would be the appointing authority and neither the State of Assam nor the jurisdictional Superintendent of Police of the Government of Assam have been arrayed as a party to this writ petition. 15. Moreover, under the provisions of Sub- Section (1) of Section 23 of the 2007 Act, the jurisdictional Superintendent of Police would be the appointing authority and neither the State of Assam nor the jurisdictional Superintendent of Police of the Government of Assam have been arrayed as a party to this writ petition. Therefore, the non-joinder of necessary parties in this writ petition is one further reason why the petitioner would not be entitled to any relief in this writ petition including the relief of reinstatement in service under respondents No.1 and 2. 16. In view of the discussions above the cases listed by the learned advocate do not appear to help the petitioner in any way because this Court has held that the respondent Nos. 1 and 2 have merely released the petitioner, and that the order of release cannot be interpreted to mean that it is an order of termination, or that it is stigmatic. 17. However, before parting with the records, as the petitioner apprehends that his release was stigmatic, it is made clear that there is nothing contained in the impugned order No. DMJ.2/2014 dated 02.09.2014 passed by the Addl. District Magistrate, Dibrugarh (respondent No.4) with approval of the District Magistrate, Dibrugarh (respondent No.3) and in order No. OIL/SEC/069(SPO)/14/1236 dated 11.09.2014 passed by the Senior Manager (Security), for and on behalf of Head- Security, Oil India Ltd. should be construed to cast any stigma against the petitioner. 18. Thus, in view of the discussions above, this writ petition stands dismissed. Rule issued on 06.05.2019 stands discharged and ordered accordingly, leaving the parties to bear their own cost.