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2022 DIGILAW 69 (MAN)

Thumlip Tiningpham Monsang v. Sharda Maibam

2022-05-06

M.V.MURALIDARAN

body2022
JUDGMENT 1. This application has been filed by the applicant to vacate the ex parte interim order dated 18.1.2022 granted in W.P.(C) No.23 of 2022. 2. Heard N. Jotendro, learned senior counsel for the applicant and Mr. Y. Nirmolchand, the learned senior counsel for the respondents 1 to 8/writ petitioners. 3. The applicant herein is the second respondent in the main writ petition. 4. The writ petition has been filed by the writ petitioners to quash the order dated 13.1.2022, whereby the Chairperson (in-charge) of the Manipur State Commission for Women ordered disengagement of the writ petitioners with immediate effect. When the writ petition was taken up for admission on 18.1.2022, this Court, while issuing notice to the respondents, granted an interim order directing the respondents not to give effect of the impugned order dated 13.1.2022 till the next date and adjourned the writ petitioner to 22.2.2022 and the said interim order still continues. 5. Assailing the impugned order dated 18.1.2022 granted by this Court, Mr. N. Jotendro, the learned senior counsel for the applicant submitted that the extension order dated 3.9.2021 thereby extending the services of the writ petitioners with effect from 3.9.2021 to 3.9.2022 was issued by the former Chairperson of Manipur State Commission for Women, which is beyond the convention of the extension followed by the Commission as normally all consolidated staff, who are continuing in the Commission have been extended their services only for a period of six months and the present extension made by the former Chairperson is without the approval of the competent authority. 6. The learned senior counsel for the applicant further submitted that in fact the extension order dated 3.9.2021 was issued without following the instructions of the Government, including the Finance Department. He would submit that even the engagement order has not followed the instruction of the Government and such engagement of the writ petitioners in different nomenclature on daily wages in the Commission, who have been appointed by the former Chairperson have been directed to disengagement with immediate effect and accordingly, the same was communicated by a letter dated 10.1.2022. Thus, the impugned order dated 13.1.2022 was issued pursuant to the advice of the competent authority. 7. Thus, the impugned order dated 13.1.2022 was issued pursuant to the advice of the competent authority. 7. The learned senior counsel further submitted that the approval of the engagement of the writ petitioners is required from the Committee of Officers headed by the Chief Secretary and hence, there is no illegality in issuing the impugned order dated 13.1.2022. In fact, as per the Office Memorandum dated 4.3.2021, only the recruitment of daily wages, contract employment, muster roll, direct recruitment which have already been approved by the State Cabinet can only be continued and in the instant case, the petitioners were never approved by the State Cabinet and as such the Government took a decision to disengage them from their services. In view of the above, the interim order granted by this Court directing the respondents not to give effect on the impugned order dated 13.1.2022 is causing injury to the applicant and, therefore, the same is liable to be vacated. 8. Per contra, Mr. N. Jotendro, the learned senior counsel for the writ petitioners submitted that this Court has rightly granted the interim order dated 18.1.2022 and there is no ground to vacate the same. Since the order dated 3.9.2021 stipulates extension of service from 3.9.2021 to 3.9.2022, the issuance of the impugned order dated 13.1.2022 is illegal. That apart, the order dated 13.1.2022 was issued without giving any notice to the writ petitioners and noting the aforesaid ground, this Court has rightly granted the interim order and the same cannot be vacated on the ground that the former Chairperson has wrongly engaged the services of the writ petitioners that too without following the guidelines of the State Government, as the said ground has no merits. 9. This Court considered the rival submissions and also perused the materials available on record. 10. The writ petitioners were engaged on daily wage basis between 13.3.2017 to 11.1.2021 and they have been continuing to discharge their duties till today on the basis of the extension order issued by the competent authorities. The last extension order issued to the writ petitioners was on 3.9.2021, whereby the extension was granted from 3.9.2021 to 3.9.2022 and the same was given effect to. However, all of a sudden, on 13.1.2022, the disengagement order was issued. According to the applicant, the extension order dated 3.9.2021 was issued by the former Chairperson without following the procedure. The last extension order issued to the writ petitioners was on 3.9.2021, whereby the extension was granted from 3.9.2021 to 3.9.2022 and the same was given effect to. However, all of a sudden, on 13.1.2022, the disengagement order was issued. According to the applicant, the extension order dated 3.9.2021 was issued by the former Chairperson without following the procedure. The aforesaid contention of the applicant has not been proved by producing any materials. That apart, the said contention has no merit. 11. It is to be mentioned that the services of the petitioners were extended with effect from 3.9.2021 to 3.9.2022 by an order dated 3.9.2021 issued by the applicant and therefore, the writ petitioners are entitled to continue in their services till 3.9.2022. It appears that the services of the writ petitioners have been disengaged by the applicant without giving any notice. Though the applicant contended that the writ petitioners have not right to continue in service and their services can be terminated at any time as and when the authorities desires to do so, the said contention cannot be gone into at the interlocutory stage and the same will be decided only at the time of final hearing. 12. Before issuing the order dated 13.1.2022, the applicant ought to have issued notice to the persons who are going to be disengaged and in the instant case, as stated supra, no notice was given to the writ petitioners before issuing the order dated 13.1.2022. On the said ground alone the order dated 13.1.2022 prima facie not sustainable in law. No necessity warrants the applicant to issue the order dated 13.1.2022 after a long delay of about four months when the last extension was granted on 3.9.2021. It is the bounden duty of the applicant to issue notice before issuing the order dated 13.1.2022 thereby disengaging the writ petitioners with immediate effect. 13. The documents appended with the writ petition assume due importance. On a perusal of the same, this Court finds that the petitioners were working during the first and second waves of Covid-19 pandemic effectively and in fact they have been appreciated by the Commission itself by issuing appreciation certificates. The commendable and tireless services rendered by the writ petitioners during lockdown period cannot be doubted and such a service rendered by the writ petitioners ought to be encouraged and appreciated. 14. The commendable and tireless services rendered by the writ petitioners during lockdown period cannot be doubted and such a service rendered by the writ petitioners ought to be encouraged and appreciated. 14. In fact, this Court, after hearing the learned counsel for the writ petitioners and the applicant as second respondent in the writ petition and the learned Additional Advocate General appearing for the first respondent State, granted interim order not to give effect of the impugned order dated 13.1.2022 till the next date of hearing. For proper appreciation, the order dated 18.1.2022 is extracted hereunder: '[1] Heard Mr. Y. Nirmolchand, learned senior counsel appearing for the petitioners. Issue notice, returnable within 4 (four) weeks. Mr. Lenin Hijam, learned Addl. AG accepts notice on behalf of the respondent No. 1, hence, no formal notice is called for in respect of the said respondent No. 1. Petitioner is to take steps for service of notice upon the respondent No. 2 by speed post within 1 (one) week. [2] It has been submitted on behalf of the petitioners that petitioners, 8 (eight) in numbers were engaged on daily wage basis between 13.03.2017 to 11.01.2021 and they have been continuing to discharge their duty till today on the basis of the extension order issued by the competent authorities. However, quite suddenly, the respondent No. 2 issued an order dated 13.01.2022 disengaging the services of the petitioners with immediate effect. [3] The learned senior counsel appearing for the petitioners vehemently submitted that the services of the petitioners were extended w.e.f. 03.09.2021 to 03.09.2022, by an order dated 03.09.2021 issued by the respondent No. 2 and the petitioners are entitled to continue in their service till 03.09.2022. However, the services of the petitioners have been disengaged by the respondent No. 2 without giving any reason and without giving any notice and in a very arbitrary manner and accordingly, the learned counsel prayed for passing an interim order for suspending the impugned order during the pendency of the writ petition. [4] Mr. Lenin Hijam, learned Addl. AG appearing for the respondent No. 1 submitted that the petitioners were engaged on daily wage basis and they have no legal right to continue in service and their service can be terminated at any time as and when the authorities desire to do so. [4] Mr. Lenin Hijam, learned Addl. AG appearing for the respondent No. 1 submitted that the petitioners were engaged on daily wage basis and they have no legal right to continue in service and their service can be terminated at any time as and when the authorities desire to do so. [5] After hearing the rival submissions advanced by the learned counsel appearing for the parties, this Court is of the considered view that as the service of the petitioners have been extended till 03.09.2022 by an order dated 03.09.2021 passed by the respondent No. 2, they are entitled to continue in their service pursuant to the order of their engagement and if the respondents wants to disengage the service of the petitioner, the petitioners are entitled to get a notice before termination of their services. [6] In the present case, there is nothing on record to indicate that the petitioners have been given notice about termination of their service before issuing the impugned termination order. [7] In view of the above and as an interim measure, the impugned order dated 13.01.2022 should not be given effect to till the next date. List this case again on 22.02.2022.' 15. Thus, it is clear that the impugned order dated 13.1.2022 was issued without any show cause notice or assigning any reason. Such an action of the applicant has caused serious prejudices to the petitioners, who are sustaining their life and family from the meagre income they earned from their services. It is not the case of the applicant that the writ petitioners are not discharging their duties sincerely. The ground for vacating the interim order dated 18.1.2022 raised by the applicant that the former Chairperson has wrongly and without following the guidelines extended the services of the writ petitioners for one year is not sustainable in the eye of law. Nothing has been produced by the applicant to show that the erstwhile Chairperson has no authority to extend the services of the writ petitioners from 3.9.2021 to 3.9.2022. 16. The argument of the applicant is that as per the Office Memorandum dated 4.3.2021 only the recruitment of daily wages, contract employees, muster roll and direct recruitment can be continued. Nothing has been produced by the applicant to show that the erstwhile Chairperson has no authority to extend the services of the writ petitioners from 3.9.2021 to 3.9.2022. 16. The argument of the applicant is that as per the Office Memorandum dated 4.3.2021 only the recruitment of daily wages, contract employees, muster roll and direct recruitment can be continued. The legality of the said arguments cannot be gone into at this stage and the same can very well be raised during the course of hearing of the main writ petition and upon raising the said ground, this Court can decide the said issue. 17. The argument of learned counsel for the applicant that where the engagement of the writ petitioners is de hors the rules, termination thereon cannot have been interfered by the writ court and interfering with such termination would amount to commanding the respondent authorities to participate illegality and the principles of natural justice would not apply to such cases and that the same will amount to follow the useless formality theory, cannot also be decided at this initial stage. 18. In Canara Bank v. Debasis Das, reported in (2003) 4 SCC 557 , while dealing with the concept, meaning, object, scope and applicability of the Principles involved natural justice, the Hon'ble Apex Court held that in some cases where grant of opportunity in terms of principles of natural justice does not improve the situation, 'useless formality theory' can be pressed into service. The Hon'ble Apex Court further held that the administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. It was emphasized that legal formulations cannot be divorced from the fact situation of the case. 19. It is reiterated that the writ petitioners have right to serve till 3.9.2022 pursuant to the extension order dated 3.9.2021 and debarring the writ petitioners to stop serving before completion of their terms of engagement is highly illegal, thereby the applicant/ respondents have violated Articles 14, 16 and 21 of the Constitution of India. 20. After considering the arguments of the learned counsel for parties, this Court came to the conclusion that the writ petitioners are entitled to continue in their service pursuant to the order of their engagement. 20. After considering the arguments of the learned counsel for parties, this Court came to the conclusion that the writ petitioners are entitled to continue in their service pursuant to the order of their engagement. Such observation of this Court cannot be disturbed on the ground so raised by the applicant in this miscellaneous case. There is also nothing on record to indicate that the writ petitioners have been given notice about the termination of their services before issuing the terminated order. 21. For the foregoing discussions, this Court is of the view that there is no error in passing the impugned order dated 18.1.2022 and thus, the application filed by the applicant/second respondent cannot be entertained as there is no merit in it. 22. In the result, the miscellaneous petition is dismissed. 23. No costs.