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2021 DIGILAW 137 (TRI)

Joydeep Bhusan v. State of Tripura

2021-08-26

AKIL KURESHI

body2021
JUDGMENT Petitioner has challenged a memorandum dated 22.05.2020 passed by the District Disability Rehabilitation Officer, Agartala by which on the ground of misbehaviour and misconduct the petitioner’s tenure as a Technician was not extended further. Brief facts are as under: The petitioner was engaged as a Sales Counter Manager in the District Disability Rehabilitation Centre which is though a society registered under the Societies Act, is controlled by the Social Welfare Department of the Government of Tripura. There is no dispute raised that the said organization is State within the meaning of Article 12 of the Constitution. I therefore proceed on such basis. In the year 2012, the petitioner undertook the training as an “Ear Mould Technician” at Karnataka. After completion of the training the petitioner was engaged as an Ear Mould Technician by the District Disability Rehabilitation Centre under an order dated 02.07.2013. Since then the petitioner has been working in the said capacity attending to different camps organized by the Disability Centre, particularly for the benefit of senior citizens. On 22.05.2020 the Director of District Disability Rehabilitation Centre issued the impugned memorandum which reads as under: “As per decision in the meeting held in the Conference Hall of D.M. & Collector (West) office, on 20-01-2020, assessment camps for Senior Citizens under Rastriya Voyashri Yojana scheme under the Ministry of Social Justice Empowerment; Govt. of India was organized by District Administration of West Tripura District in association with ALIMCO at Belbari on 06-02-2020 and on 19-02-2020 at Jogendranagar UPHC. It is reported that during the camps on 06-02-2020 and 19-02-2020, Shri Joydeep Bhusan harassed and assaulted one member of medical team namely Mrs. Sharmistha Das (Roy), Ophthalmic Asstt. Of Jogendranagar UPHC. On the basis of factual report, the Chairman, DDRC (West) (D.M. & Collector-West) has decided that as per terms and conditions of Engagement Order and Undertaking accepted by him and on the ground of misbehavior and misconduct no further extension shall be given to Sri Joydeep Bhusan, Ear Mould Technician of DDRC(W).” The challenge of the petitioner is premised on a simple ground namely no opportunity of hearing was granted to the petitioner before the said order was passed. Counsel for the petitioner would point out that having worked for over 10 years the petitioner was summarily removed by a stigmatic order without even a semblance of hearing. The respondents have appeared and filed reply. Counsel for the petitioner would point out that having worked for over 10 years the petitioner was summarily removed by a stigmatic order without even a semblance of hearing. The respondents have appeared and filed reply. I have heard the counsel for the respondents also. In the affidavit-in-reply it is stated that the Director of District Disability Rehabilitation Centre is the Head of Office and his decision is final. It is further stated that on 01.06.2020 the petitioner had made a representation in which he had admitted his mistake and apologized. Thus, there was no need for granting hearing. Having heard learned counsel for the parties, I find that the impugned decision of the authority in the present case cannot survive the legal test. It may be that as a contractual employee the petitioner did not have a right of full-fledged departmental inquiry before any punishment could be imposed on him. In any case, not being a Government servant he did not have the protection of Article 311 of the Constitution. Nevertheless, the employer organization being State within the meaning of Article 12 of the Constitution, has a duty to act fairly in all its actions. The petitioner had discharged his duties for over 10 years during which the respondents have not cited any misconduct on his part. If the engagement of the petitioner were to be terminated summarily, that too on the ground of misconduct or misbehaviour, at least bare minimum of hearing was necessary. I have reproduced the impugned order in order to demonstrate that the termination of the petitioner was based on allegations of misconduct. His disengagement was thus stigmatic and punitive in nature. Admittedly, no hearing was granted to the petitioner before passing this order. His letter dated 01.06.2020 succeeded the departmental action of 22.05.2020. The so-called admission on his part in the said letter cannot be read in isolation. In the entire document, he denies any misconduct on his part in relation to the episode involving the lady employee. In fact, he attributes greater role of the lady employee in the unfortunate incident. As noted, the departmental action was based on an alleged incident where a lady employee was ill-treated by the petitioner and for which she had made a complaint or given a statement. In fact, he attributes greater role of the lady employee in the unfortunate incident. As noted, the departmental action was based on an alleged incident where a lady employee was ill-treated by the petitioner and for which she had made a complaint or given a statement. At least, this statement should have been provided to the petitioner calling for his explanation before taking any final decision by the competent authority. This not having been done, impugned order must be set aside. While so saying, the allegations against the petitioner are quite serious. He was even otherwise a contractual employee who would not be entitled to a full-fledged departmental proceedings before disengaging his service. The employer shall only have to issue a notice supplying him the complaint/statement of the lady employee concerned involved in the episode and any material which the department wishes to rely upon permitting the petitioner to make a representation within a reasonable time. Final decision may be taken bearing in mind such documents and the representation of the petitioner. Till this is done, the petitioner cannot insist on being reengaged and allowed to work. In the result, impugned order dated 22.05.2020 is set aside. The respondents shall follow the procedure laid down hereinabove before passing any further order which process may be completed within six months from today. Till then, the petitioner will not insist on being reengaged or being allotted duty or being remunerated for the same. Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.