Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 299 (GAU)

Abul Hussain Barbhuiya v. State Of Mizoram

2020-02-27

AJIT BORTHAKUR

body2020
JUDGMENT 1. Heard Mr. Victor L. Ralte, learned counsel for the petitioner and Mr. C. Zoramchhana, learned Addl. Advocate General, Mizoram appearing for the State/respondent Nos. 1 to 4. Also heard Mr. A.K. Rokhum, learned counsel for the respondent Nos. 5 and 6. 2. The case of the petitioner, in brief, is that he was appointed as Assistant Teacher in Radha Mohn High School, Kamalanagar, Mizoram, which was a venture school, by the respondent No. 5/ the Chairman, Managing Committee, vide appointment order, dated 12.02.2008. The petitioner joined his post on 12.02.2008. In the meantime, the school was upgraded to Ad hoc Grants-in-Aid School. Thereafter, on the recommendation of the Selection Committee/Screening Committee, the respondent No.5/the Managing Committee of the said school appointed the petitioner as Assistant Teacher by an order, dated 08.09.2008 for a period of 1 year and his appointment was approved by the respondent No. 4/the District Education Officer. Accordingly, the petitioner reported joining to the respondent No.5/the Chairman of the Managing Committee of the said school on 09.09.2008. The name of the petitioner, as appeared in the appointment order, was corrected by a Corrigendum, dated 18.11.2008, issued by the respondent No. 4. The petitioner was confirmed in the said post of Assistant Teacher and he was working in the said school continuously. Thereafter, the State respondents issued a Notification, dated 19.07.2013 and Corrigendum, dated 02.07.2014, whereby those teachers in the Government Primary School, Middle School and High School, having 8 years of service in the relevant Entry Grade were made eligible to enjoy the Senior Grade and those having 16 years of service were made eligible to enjoy the Selection Grade. The said notification was issued for those regular government employees and provided further that their services rendered in Ad hoc/Deficit/CSS continued by regularization would be counted as qualifying service. Pursuant thereto, the Managing Committee of the said school, with the approval of the respondent No. 3/the Director of School Education Department, Mizoram, by an Order, dated 28.11.2016, upgraded the respondent No. 6/the Head Master and teachers of Radha Mohn High School including the petitioner to the Senior Grade, on regular pay scale, on completion of 8 years of service. On 07.06.2019, with leave of the respondent No. 6/the Head Master of the school, the petitioner proceeded to Silchar to attend NRC hearing held on 10.06.2019, 11.06.2019 and 13.06.2019 at Silchar and attended the hearing. On 07.06.2019, with leave of the respondent No. 6/the Head Master of the school, the petitioner proceeded to Silchar to attend NRC hearing held on 10.06.2019, 11.06.2019 and 13.06.2019 at Silchar and attended the hearing. Thereafter, while the petitioner was planning to come back to his working place, he met with a motor vehicular accident on 15.06.2019 and sustained severe injuries in his mouth, requiring 10 stitches as one rod pierced through his left cheek. The petitioner duly informed the incident to the respondent No. 6 through whatsapp message. Unfortunately, he fell sick thereafter, as he suffered from typhoid from 30.06.2019 and he underwent medical treatment resulting in delay in resuming his school duty. However, on request from the school authority, he resumed duty on 09.07.2019. Subsequently, the vacation commenced w.e.f. 23.07.2019 to 02.08.2019. While he was enjoying the vacation period, on 31.07.2019, he was informed by his parents that they had received a letter, dated 01.07.2019, issued by the respondent No. 5/the Chairman, Managing Committee of his school, terminating his service with retrospective effect from 01.07.2019, on the ground of dereliction of duty. Pursuant thereto, he submitted a representation to the respondent No. 5 praying for revocation of the termination order giving retrospective effect without citing any speaking ground of his termination and without service of show cause notice before termination. 3. Mr. Victor L. Ralte, learned counsel appearing for the petitioner, submits that as per Rule 4 (xii) of the Government of Mizoram Education and Human Resources Development Department Ad hoc Recurring Grants-in-Aid for General Maintenance of Schools Rules, 1997 (the Rules for short) lays down that in case the service of any employee is found not suitable by the Managing Committee during the period of temporary appointments, his service may be terminated by the Committee after giving him one months notice, with the approval of the Chairman of the Committee, which selected the incumbent. However, in the case of the petitioner, as no advance notice in terms of Rule 4 (xii) of the Rules was ever served before terminating him from service by the respondent No. 5, the aforesaid act apparently amounts to arbitrary being in violation of the principles of natural justice, because it deprived him of a fair opportunity of hearing and on that ground alone, the impugned order of his termination, dated 01.07.2019 is liable to be set aside and quashed. 4. Mr. 4. Mr. C. Zoramchhana, learned Addl. Advocate General, Mizoram, appearing for the State respondent Nos. 1 to 4, submits that the State of Mizoram has not contested the instant writ proceeding by filing any affidavit-in-opposition. 5. Mr. A.K. Rokhum, learned counsel appearing for the respondent Nos. 5 and 6, submits that the instant writ petition is not maintainable against the respondent Nos. 5 and 6, as the School Managing Committee does not fall within the description of State under Article 12 and it is, therefore, not an authority within the meaning of Article 226 of the Constitution of India and as such, the respondent Nos. 5 and 6, the School Managing Committee is not amenable to the writ jurisdiction under Article 226 of the Constitution of India. Mr. Rokhum further submits that the function of the respondent Nos. 5 and 6, the School Managing Committee is not akin to the functionings of the State Authorities in their sovereign capacity and there is no Government control on the day-to-day functioning of the respondent School Managing Committee. Mr. Rokhum further submits that by an Order, dated 06.09.2019, the petitioner was requested to produce the documents viz. 1) Birth Certificate; 2) Aadhar Card; 3) Permanent Residential Certificate; 4) Voter Identity Card; 5) Employment Exchange Registration Card and 6) National Register of Citizenship (NRC) within 10 days by the respondent No. 5, but he had not produced the same. It is also submitted by Mr. Rokhum that by Order, dated 22.10.2019, the respondent No. 5 rejected his representation praying for revocation of termination order by the Committee by its Resolution adopted, after due deliberations thereon in its meetings held on 17.09.2019 and 19.10.2019, on the ground of his failure to produce the aforesaid essential documents based on a letter, dated 05.09.2019, received from the respondent No. 3/Directorate, School Education, Aizawl, as provided in Rule 4 (xii) and (xiii) of the Rules and as such, his Indian citizenship is itself questionable and doubtful. 6. I have considered the above arguments advanced by the learned counsel for both the sides and perused record. 7. It may, pertinently be pointed out that Article 226 of the Constitution of India permits issue of directions, orders or writs to any person or authority including in appropriate cases, any government. 6. I have considered the above arguments advanced by the learned counsel for both the sides and perused record. 7. It may, pertinently be pointed out that Article 226 of the Constitution of India permits issue of directions, orders or writs to any person or authority including in appropriate cases, any government. It is a settled proposition of law that a writ lies to any person, who has some public duty to perform. In Anandi Mukta Sadguru Shree Mukta Vs. V.R. Rudani & Ors. reported in 1989 AIR 1607 , the Apex Court in Para Nos. 20 and 22, succinctly explained the scope of Article 226 of the Constitution of India as under- '20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. 22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. We share this view.' In the case of Marwari Balika Vidyalaya Vs. Asha Srivastava and Ors., reported in 2019(4) SC ALE600 , the Apex Court held that the writ application is maintainable in employment related matters even against the private unaided educational institutions. 8. We share this view.' In the case of Marwari Balika Vidyalaya Vs. Asha Srivastava and Ors., reported in 2019(4) SC ALE600 , the Apex Court held that the writ application is maintainable in employment related matters even against the private unaided educational institutions. 8. As stated above, Radha Mohn High School is an educational institution, which receives government grants-in-aid to manage its affairs. Therefore, when the Rules governing Ad hoc Grants-in-Aid School requires approval of the government authority, especially in the matter of termination of service of a teacher, in such a contingency, a writ petition would certainly lie against the said school authority, that is, the respondent Nos. 5 and 6 herein, besides the Government/respondent Nos. 1 to 4 in appropriate case. 9. As stated above, Rule 4 (xii) of the Government of Mizoram Education and Human Resources Development Department Adhoc Recurring Grants-in-Aid for General Maintenance of Schools Rules, 1997 provides as follows: '4 (xii). All appointment shall be made by the Managing Committee purely on temporary basis for a period of one year at the first instances during which period they will furnish six monthly review reports on the work and suitability of the appointment to the Chairman of the respective Selection Committee for consideration of the Committee and in case the Committee recommends retention of the services of the staff concerned, he shall then be deemed to be on probation for another period of one year. After successful completion of probation, he shall be confirmed. In case the service of any employee is found not suitable by the Managing Committee during the period of temporary appointments, his service may be terminated by the Committee after giving him one months notice, with the approval of the Chairman of the Committee which selected the incumbent.' 10. It is noticed from Annexure- 8 that the petitioner, on completion of his 8 years of service as a confirmed Assistant Teacher was upgraded to the Senior Grade and was enjoying the equivalent pay with those regular employees in the corresponding post. It is noticed from Annexure- 8 that the petitioner, on completion of his 8 years of service as a confirmed Assistant Teacher was upgraded to the Senior Grade and was enjoying the equivalent pay with those regular employees in the corresponding post. But, by an Order, dated 01.07.2019, vide Annexure- 11, issued by the respondent No. 5, he was abruptly terminated from service giving retrospective effect from 01.07.2019 on the ground of dereliction of duty without a regular enquiry being held for the purpose and in contravention of the requirement of service of one months notice as per Rule 4 (xii) of the Rules. The aforesaid act of termination of the petitioner from service by the respondent No. 5, which involved civil consequences without giving him even an opportunity of being heard by issuing one months notice as per Rule shows to be an order contrary to fairness in action and as such, the doctrine of natural justice must be held to be applicable to such arbitrary act. Because, without granting reasonable and adequate opportunity of hearing to the aggrieved person, that is, the petitioner herein has adversely affected him deflecting the course of justice by the aforesaid impugned order. It is not out of place to mention that observance of the principles of natural justice is an inevitable and indispensable part of fair play in action. 11. In Para No. 7 of V.P. Ahuja Vs. State of Punjab and Ors. reported in (2000) 3 SCC 239 , the Honble Supreme Court held as follows: '7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.' 12. Thus, it is judicially well settled that natural justice is an inseparable ingredient of fairness and reasonableness. The respondents contention with reference to their Annexure- 5 that the petitioner had failed to produce certain important and essential documents before the respondent No. 5 and therefore, as per the Resolution of the Managing Committee adopted in its meetings held on 17.09.2019 and 19.10.2019 and on receipt of approval thereof from the respondent No. 3, the Director, School Education Department, Govt. of Mizoram, the petitioner was terminated from service without affording opportunity of being heard cannot be said to be based on reasonableness and fairness in terminating his service without notice apparently appears to be denial of justice to him. The rationality of this view is that where there is a duty to act fairly as per prescribed Rule provided for the purpose, the authority must be under obligation to act accordingly following the said relevant Rule. Therefore, a decision made contrary to natural justice being void ab initio and also applying the ratio of the decision of the Apex Court in the case of V.P. Ahuja(Supra) alone, renders the impugned order, dated 01.07.2019, terminating the petitioner from service without notice and affording him opportunity of hearing, is liable to be set aside and quashed. 13. In that view of the matter, the impugned Order, dated 01.07.2019 (Annexure-11), issued by the respondent No. 5, terminating the service of the petitioner is hereby set aside and quashed and the respondent No. 5 is directed to reinstate the petitioner in service with back wages from the date of termination, subject to production of the documents by the petitioner as required by the Order, dated 06.09.2019, issued by the respondent No. 5 under Memo No. C.11013/4/2019-RMHS, within 7 (seven) days from the date of receipt of a certified copy of this order, which shall be furnished by the petitioner. With the above directions, the writ petition stands disposed off.