Gauhati High Court
Hiren Borgohain vs The State Of Assam And 3 Ors on 12 March, 2020
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/9
GAHC010196022018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6217/2018
1:HIREN BORGOHAIN
S/O- LT KULADHAR BORGOHAIN, R/O- VILL- MAHMORA KONWAR GAON,
P.O. BHARALI PHUKHURI, P.S. KAKATIBARI, DIST- CHARAIDEO, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMM. OF TRANSPORT, GOVT. OF ASSAM, DISPUR, GHY-6,
ASSAM
2:THE ASSAM STATE TRANSPORT CORPORATION
REP. THROUGH ITS MANAGING DIRECTOR
PALTANBAZAR
GHY-8
ASSAM
3:THE DIVISIONAL ENGINEER CUM DIVISIONAL SUPERINTENDENT
ASTC CITY SERVICE
RUPNAGAR
GHY
ASSAM
4:THE DIVISIONAL SUPERINTENDENT
ASTC CITY SERVICE
NOONMATI
GHY- 20
ASSA
Advocate for the Petitioner : MR. P SAIKIA
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Advocate for the Respondent : SC, A S T C
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 12-03-2020 Heard Mr. P. Saikia, learned counsel for the petitioner. Also heard Mr. J. Roy for the ASTC and Mr. Y. Doloi for the respondent No. 1.
2. The petitioner has prayed for setting aside the Order dated 04.06.2018, by which his service has been terminated.
3. The petitioner's counsel submits that the petitioner's service had been terminated without any notice being issued to the petitioner or any enquiry initiated against the petitioner. The petitioner's counsel also submits that with respect to allegations of misconduct in respect of Sh. Ranjit Patowary and Sh. Ranjan Dihingia, drivers on contract basis, disciplinary enquiry had been initiated against them. He submits that as the services of the above 2 persons had been terminated, only after they were found guilty in the disciplinary proceedings, the service of the petitioner should have been terminated only after an enquiry was initiated against him, as had been done in the case of the above noted persons.
4. Mr. J. Roy, the learned counsel for the ASTC, on the other hand submits that the petitioner being unauthorizedly absent from 17.03.2018 to 08.05.2018, his services had been terminated. He submits that there is no requirement of issuing notice to the petitioner, in view of the Judgments of the Apex Court in Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., reported in (2006) 8 SCC 647 and in the case of Karnataka State Road Page No.# 3/9 Transport Corporation & Anr. Vs. S.G. Kotturappa & Anr. , reported in (2005) 3 SCC 409, inasmuch as, the fact of the petitioner's unauthorized absence of 42 days is a fact beyond dispute and as such, even if a notice was issued to the petitioner with regard to his unauthorized absence, the same would have only led to one conclusion i.e., the petitioner had been unauthorizedly absent for 42 days. The counsel for the ASTC thus submits that notice need not be issued, in cases where the facts are beyond dispute, as the same would be an empty formality.
5. The learned counsel for the ASTC also submits that recruitment and conditions of service of a member of the ASTC is governed by the Assam State Road Transport Corporation Employee Services Regulation, 1971 (hereinafter referred to as 'The 1971 Regulation'). He submits that as per Regulation 82 of the 1971 Regulation, Rule 7(g)(iv) of the Assam Services (Discipline and Appeals) Rules, 1964 (hereinafter referred to as 'The 1964 Rules) is applicable to the ASTC. He submits that as the petitioner's service was temporary in nature, the ASTC was not required to issue notice to the petitioner, prior to termination of his service in terms of Rule 7(g)(iv) of the 1964 Rules.
6. I have heard the learned counsels for the parties.
7. Section 82 of the 1971 Rules states as follows:-
"82. The Matter not covered by the various regulations of the corporation shall be decided in conformity with rules, orders etc. applicable to the State Government Employees."
Rule 7(g)(iv) of the 1964 Rules states as follows:-
"7(g)(iv). Termination of the Service: of a Government servant in whose case the appointment is expressly stated to be on temporary basis and to have been Page No.# 4/9 sanctioned until further orders and it is also provided that his services may be terminated at any time without notice."
If the submission of the counsel for the ASTC is accepted with regard to the applicability of the above quoted Section and Rule, then the 1971 Regulation would have to apply to the petitioner in toto and a notice and/or enquiry would be a pre-requisite for terminating his service.
8. In the case of Punjab National Bank & Ors. Vs. Manjeet Singh & Anr. , (Supra), the Apex Court has held that the Court should not insist on compliance with the principles of natural justice, if only one conclusion is possible with regard to the facts in issue or with regard to the legal implications. In para 18, the Apex Court has held as follows:-
"18. In M.C. Mehta v. Union of India and Ors., the law is stated in the following terms:
"... More recently Lord Bingham has deprecated the "useless formality" theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton by giving six reasons. (See also his article "Should Public Law Remedies be Discretionary?" 1991 PL, p. 64.) A detailed and emphatic criticism of the "useless formality theory" has been made much earlier in "Natural Justice, Substance or Shadow" by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a "real likelihood" of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Page No.# 5/9 courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived."
9. In the case of Karnataka State Road Transport Corporation & Anr. Vs. S.G. Kotturappa & Anr., (Supra), this Court has held at para 20 and 24 as follows:-
"20. The terms and conditions of employment of a Badli worker may have a statutory flavor but the same would not mean that it is not otherwise contractual. So long as a worker remains a Badli worker, he does not enjoy a status. His services are not protected by reason of any provisions of the statute. He does not hold a civil post. A dispute as regards purported wrongful termination of services can be raised only if such termination takes place in violation of the mandatory provisions of the statute governing the services. Services of a temporary employee or a Badli worker can be terminated upon compliance with the contractual or statutory requirements.
24. The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given."
10. In the present case, there is no contract agreement made between the petitioner and Page No.# 6/9 the ASTC. However, the petitioner has been appointed on the basis of an advertisement dated 12.02.2015, which has called for filing up the post of drivers on contract basis. Though the petitioner has been treated to be a driver on contract basis by the respondents, there being no contract agreement between the petitioner and the ASTC, there is no period of contract between them. No doubt, the Apex Court in the case of Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., (Supra) has held that the Court should not insist on compliance with the principles of natural justice, if only one conclusion is possible with regard to the facts in issue or with regard to the legal implications. However, it has to be understood that the said case had been decided in relation to an Award made by the Industrial Tribunal, Hyderabad, wherein individual workmen were not heard by the Industrial Tribunal but the Unions were heard by the Tribunal. It was in the above context that the Apex Court had held that if only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice. A perusal of the judgment of the Apex Court in Karnataka State Road Transport Corporation & Anr. Vs. S.G. Kotturappa & Anr. , (Supra) shows that the service of a temporary employee or a Badli worker can be terminated upon compliance with the contractual or statutory requirements without issuing notice, when the order of termination is a termination simpliciter and not punitive in nature.
11. Annexure 2(a) of the affidavit-in-opposition filed by the ASTC are notes made in the note sheet of the ASTC, regarding the petitioner and 34 other drivers, who had been appointed on contract basis. On perusal of the notings therein, it clearly shows that the petitioner's service had been terminated by way of a punishment. The notings made in Annexure 2(a) are reproduced herein below:-
"As per note on the body of the report submitted by DE cum DS ASTC city Page No.# 7/9 service Rupnagar, Guwahati at SL no-1 may kindly be seen.
As per your direction, the undersigned was proceeded to city service, Rupnagar thrice that is, on 19th, 23rd and 28th of May' 18 in respect to query against 35 nos. of drivers of city service division who were absent from their duties as alleged by the S.S city service, Rupnagar and Noonmati, Guwahati at SL No. 2 and 3 which may kindly be seen.
A detailed attendance report of long time unauthorized absent of drivers of both Noonmati and Rupnagar city service at SL No. 4 to 7, may kindly be seen for your perusal.
After proper examination of the attendance records of these drivers it has been found that they were absent from their respective duties during the period mentioned against each of them except two drivers who were found present in some months and this has been clarified by the respective concerned station authority that those months in between were erroneously reported as absent although they were present in those months.
Hence, in my view the alleged persons have not followed the ASTC rules and procedures and were absent from their duties on their own will from sufficient long period of time without any prior permission from the concerned authority therefore, they deserve for punishment.
Put for your kind perusal.
All are removed from service. Let issue orders in this regard."
12. In the case of Mazid Ansari Vs. Union of India & Ors. , reported in 1996 (3) GLT 540, this Court had relied upon the Judgment of the Apex Court in the case of Parshotam Lal Dhingra Vs. Union of India , reported in AIR 1958 SC 36 by holding in para 12 as follows:-
"12. From the decisions cited above, law regarding removal, dismissal or Page No.# 8/9 reduction in rank of a public servant is very well settled. Even in case of a temporary worker it is the duty of the Court to see the manner and the circumstances under which the order of termination was made and consider as to whether it is a case of termination simpliciter or by way of punishment or with a stigma. The order of termination or removal may be very innocuous on the face of it but it should be the endeavour of the Court to look into the circumstances under which the employee was removed from service. It can be found out from the relevant records or from other materials the actual nature of the order of termination.
13. In the present case, the note sheets clearly shows that the petitioner's service had been terminated by way of a punishment. As the petitioner's service has been terminated by way of a punishment without issuing any notice, the order of termination is violative of the principles of natural justice and Article 14 of the Constitution. The impugned termination order dated 04.06.2018 issued by the Managing Director, ASTC, insofar as it relates to the petitioner, is hereby set aside. However, liberty is given to the respondents to initiate a fresh action against the petitioner and proceed against him for unauthorized absence as allowed by law after giving him notice.
14. Consequently, the petitioner should be reinstated into service. In the case of Metropolitan Transport Corporation Vs. V. Venkatesan , reported in (2009) 9 SCC 601, the Apex Court has held that there is a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course.
In the facts of this case, this Court is of the view that the question of continuity in service and consequential benefit etc., should be subject to the outcome of any action to be initiated by the respondents against the petitioner, failing which, a decision with regard to the above will have to be made at the earliest by the respondents.
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15. The Writ Petition is accordingly disposed of.
JUDGE Comparing Assistant