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2022 DIGILAW 1241 (GAU)

Nada Dumi D/o Nada Gyabo v. State of A. P.

2022-11-10

NELSON SAILO

body2022
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. K. Tari, learned counsel for the petitioner and Ms. R. Basar, learned Junior Government Advocate appearing for the respondent nos. 1 and 2. 2. By filing this writ petition, the petitioner has challenged the order, dated 24.04.2020 (Annexure-7), by which, she has been terminated from service in the post of Peon, under the establishment of Deputy Commissioner, Lower Subansiri District, Arunachal Pradesh by invoking the proviso to Sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary service) Rule, 1965 (Temporary Service Rules). 3. The case of the petitioner, in brief, is that she was appointed to the post of Peon in the Office of the Deputy Commissioner, Lower Subansiri District, Ziro, (Respondent no. 2), vide order, dated 30.10.1996 and was serving as such, until a Show Cause Notice, dated 11.04.2014, was issued to her, stating that she had remained absent from duty without the permission of the competent authority w.e.f. 30.10.2013 till the date of issuance of the Show Cause Notice and therefore, she was asked to report for duty within 7 (seven) days from the date of the Show Cause Notice, failing which, necessary action will be initiated against her. The unauthorized absent period was to be treated as “dies non” for all purpose, namely, increment, leave and pension, under Rule F.R. 18. The Show Cause Notice was not received by the petitioner in time but she nevertheless submitted her reply on 25.06.2014, stating that she was on Earned Leave up till 29.03.2013 and was to join on 30.10.2013. However, before joining, she fell seriously ill and had to be taken to Guwahati for further treatment. Therefore, she requested that she be absolved from “dies non” and other action. 4. The petitioner, thereafter, vide a letter dated 25.10.2015, informed the respondent no. 2 about the treatment undertaken by her from specialized hospitals. She stated that she was under treatment at AIIMS hospital, New Delhi and was required to undergo surgery. For this reason, she was unable to join her duties since the year 2011 properly. Thereafter, the respondent no. 2 published a notice in the local daily, dated Ziro the 13th March, 2020, requiring the petitioner to join in her duty within a period of 7(seven) days from the date of the notice, failing which, Disciplinary Proceeding would be initiated against her. Thereafter, the respondent no. 2 published a notice in the local daily, dated Ziro the 13th March, 2020, requiring the petitioner to join in her duty within a period of 7(seven) days from the date of the notice, failing which, Disciplinary Proceeding would be initiated against her. In response to the notice, the petitioner submitted her Joining Report-cum-Condonation of break in service to the respondent no. 2 on 19.03.2020, stating that in compliance to the notice, she has joined her service on 19.03.2020. She further stated that the reason why she could not join in service earlier was due to her illness and she had undergone medical treatment at General Hospital Ziro, Hema Hospital Itanagar, AIIMS Hospital Delhi and Lokmanya Tilak Municipal Medical College & General Hospital, Sion, Mumbai. Since her health condition was better now, she was able to join her service and she therefore requested that she be allowed to continue in her service by condoning the break in service. Thereafter, vide the impugned order dated 24.04.2020, the petitioner was terminated from service, under the Temporary Service Rules. Although the petitioner submitted a notice, under Section 80 of CPC to the respondent no. 2 on 30.04.2020, through her engaged counsel but as she was not taken back into service, she is before this Court through the instant writ petition. 5. Mr. K. Tari, learned counsel for the petitioner submits that the petitioner did not remain absent from duty willfully and deliberately and in fact, it was on account of her illness and treatment taken by her in various hospitals that she could not join in her service. He submits that the respondent authority concerned was also aware of the illness of the petitioner and therefore, ought to have taken a lenient view in the matter. He submits that despite the fact that the petitioner is a regular employee under the State Government, the respondent no. 2 has applied the Temporary Service Rules to terminate her from service and therefore her termination is not sustainable in law. He submits that prior to issuance of the termination order, no Show Cause Notice was issued to the petitioner and the decision to terminate her from service was taken abruptly. He further submits that the respondent authority has clearly violated the provision of Article 311 of the Constitution of India by terminating the petitioner from service without any enquiry. He submits that prior to issuance of the termination order, no Show Cause Notice was issued to the petitioner and the decision to terminate her from service was taken abruptly. He further submits that the respondent authority has clearly violated the provision of Article 311 of the Constitution of India by terminating the petitioner from service without any enquiry. The same being not permissible in law, the termination order should be set aside. In support of his submission, the learned counsel for the petitioner has relied upon the case of Reena Rani vs. State of Haryana and Others, (2012) 10 SCC 215 and State of Assam and Others vs. Akshaya Kumar Deb, (1975) 4 SCC 339 . 6. Ms. R. Basar, learned Junior Government Advocate, on the other hand, submits that the petitioner is a habitual absentee since her initial appointment. Referring to the affidavit-in-opposition filed by the respondent no. 2 on 13.08.2021, the learned State counsel submits that the petitioner was appointed as a Peon, vide order dated 30.10.1996 and she remained unauthorizedly absent immediately after she joined her service. She was placed under “dies non” with attendant disabilities under F.R. 17-A(3), vide order dated 25.08.2014, due to her willful absence from duty. Despite that, the petitioner remained absent from her duty willfully without permission for continuous period of more than 5(five) years and 10 (ten) months till she was terminated vide the order, dated 24.04.2020. She further submits that the petitioner has taken the stand that she was absent from duty on account of her medical treatment but while submitting her joining report she failed to submit any medical certificate despite the lapse of a period of 1 (one) month after her joining back. There is gross negligence on the part of the petitioner and therefore, the impugned order of termination may not be interfered with by this Court. She further submit that one Ms. Toko Mama was appointed in place of the petitioner but her service has now been terminated, vide order, dated 06.10.2021. According to the instructions she has received, the respondent authorities have initiated the process of filling up of the vacancies caused by the termination of the petitioner by sending a requisition to the Arunachal Pradesh Staff Selection Board (APSSB). However, there is nothing on record to show that the post has been filled up. 7. According to the instructions she has received, the respondent authorities have initiated the process of filling up of the vacancies caused by the termination of the petitioner by sending a requisition to the Arunachal Pradesh Staff Selection Board (APSSB). However, there is nothing on record to show that the post has been filled up. 7. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 8. From the materials available on record, it is seen that the petitioner who was appointed as a Peon under the establishment of the respondent no. 2 in the year 1996 and continue as such, was terminated from service, vide order, dated 24.04.2020, by invoking the provisions of the Temporary Service Rules. The petitioner in her writ petition has contended that she is a regular Government Servant and that she cannot be removed from service by invoking the Temporary Service Rules. The fact of the petitioner being a regular Government Servant has not been disputed or denied by the State respondents in their affidavit-in-opposition. No doubt, the petitioner may have absented herself from duty without obtaining prior permission and approval of the competent authority but the same does not justify the imposition of the penalty of termination from service by invoking Sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary service) Rule, 1965, which undisputedly, otherwise, is to be invoked on temporary employees and not a regular Government servant. 9. Article 311(2) of the Constitution of India provides that no person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank except after an inquiry in which he/she has been informed of the charges against him/her and given a reasonable opportunity of being heard in respect of those charges. In respect of a Government Servant in the State of Arunachal Pradesh there is no dispute to the fact that the provisions of the CCS (CCA), 1965, applies. The same provides for the procedure and the manner in which disciplinary action can be taken upon a delinquent Government Servant. Therefore, the manner in which the petitioner has been terminated from service is only illegal per se. 10. The same provides for the procedure and the manner in which disciplinary action can be taken upon a delinquent Government Servant. Therefore, the manner in which the petitioner has been terminated from service is only illegal per se. 10. The Apex Court in the case of the State of Assam and Others vs. Akshaya Kumar Deb (supra), in the given fact of that case, held that Rules 18 of the Assam Fundamental and Subsidiary Rules cannot be invoked upon the employee concerned without there being a compliance of the prescribed procedure in Article 311 (2) of the Constitution of India. F.R. 18 of the Assam Fundamental and Subsidiary Rules is also similar to the Provisions of Rule-5 of the CCS of the Temporary Service Rules and as may be noticed, this Court has already made a finding in the forgoing paragraphs that Temporary Service Rules cannot be made applicable on a regular Government employee. Therefore, the case under reference is found to be squarely applicable to the instant case. 11. Thus, under the facts and circumstances of the case and upon due consideration, I am of the considered view that the impugned order, dated 24.04.2020, issued by the Deputy Commissioner, Lower Subansiri District, Ziro, vide Memo No. E-7962/96, is not sustainable in law and accordingly, the same is set aside. 12. The State respondents are directed to reinstate the petitioner back into service. However, liberty is granted to the respondent authorities to initiate fresh proceedings as may be permissible in law, if so advised. The entitlement or otherwise of the petitioner on her reinstatement is left for decision by the competent authority, in accordance with law. 13. With the above observations and directions, the writ petition stands disposed of. No Cost.