Tripura High Court
Sri Bhiba Basu Khisa vs The State Of Tripura on 7 August, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 616 of 2016
Sri Bhiba Basu Khisa,
son of late Murati Mohan Khisa, resident of Abhoynagar,
P.O. Abhoynagar, Agartala, District- West Tripura
... Petitioner
- Versus -
1. The State of Tripura,
represented by the Secretary,
Health and Family Welfare Department,
Government of Tripura, P.O. New Capital Complex,
Agartala, District-West Tripura
2. The Director of Health Services,
Government of Tripura, PN Complex, Gurkhabasti,
P.O. Kunjaban, Agartala, District- West Tripura
3. The Medical Superintendent,
IGM Hospital, P.O. Agartala, District- West Tripura
... Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. CS Sinha, Advocate
For respondents no.1,2,3 : Mr. S Chakraborty, Addl GA
Date of hearing and delivery
of Judgment and Order : 07.08.2017
Whether fit for reporting : NO
JUDGEMENT AND ORDER (ORAL)
Heard Mr. CS Sinha, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Additional Government Advocate appearing for the respondents.
2. According to the petitioner, on his superannuation, the pension and other benefits have not been released. By the notice of retirement dated 25.10.2013 the petitioner was informed that he would retire on superannuation on 31.12.2014. The petitioner was asked by the said notice dated 25.10.2013 to submit the necessary papers for processing the pension etc.. But after lapse of the substantial period when the petitioner did not W.P.(C) No. 616 of 2016 2 receive any such benefit, he had approached this court by filing a writ petition being WP(C) 217 of 2015 which was disposed of by the order dated 21.07.2015 (Annexure 6 to the writ petition). For purpose of reference, the entire text of the said order dated 21.07.2015 is extracted hereunder:
"The main relief prayed for in the writ petition was that the petitioner should be paid his retiral benefits and be paid interest on the delayed payment.
Mr. Sinha has placed before us a copy of the order dated 16.06.2015 whereby both provisional pension and provisional DCRG amount have been sanctioned in favour of the petitioner. He, therefore, submits that the petition may be disposed of at this stage with liberty reserved to the petitioner to approach the court again if he is aggrieved by any further order in this behalf In this view of the matter the writ petition is disposed of".
As it is seen, in the order dated 21.07.2015, the petitioner was given liberty to approach this court further.
3. Mr. Sinha, learned counsel appearing for the petitioner has submitted that though by the order dated 16.06.2015, the provisional pension and the provisional DCRG were sanctioned, but those were never released to the petitioner. After waiting for quite sometime when the petitioner approached this court, the order dated 20.08.2015 (Annexure 7 to the writ petition) was passed. In the said order, it has been clearly observed that consequent upon the memorandum dated 20.11.1998 terminating the service of the petitioner from the post of Dresser, the petitioner had filed a writ petition being No. Civil Rule 511 of 1998. By the interim order dated 04.12.1998 passed in the said writ petition, the order of termination of the petitioner was kept in abeyance. It further appears that during the said period the petitioner worked in the post of 'Dresser' and W.P.(C) No. 616 of 2016 3 continued. The petitioner had retired from the service on 31.12.2014, but the petitioner did not submit the final order passed in the Civil Rule 511 of 1998. After the petitioner's purported retirement from the service, the final order dated 15.09.2008 was passed in Civil Rule 511 of 1998 and that was brought to the notice of the Director of Health Services, Government of Tripura, the appointing authority. By the said order, the Gauhati High Court which at that point of time had its territorial jurisdiction to adjudicate over the matters from Tripura dismissed the writ petition without any interference with the order dated 20.11.1998 by which the petitioner was terminated from the said service. No protection whatsoever was granted.
4. Notwithstanding the final order, the petitioner continued in the service obviously for failure of the government to act on the final order dated 04.11.2008. A copy of the said order dated 04.11.2008 is available with the writ petition as Annexure 10. The relevant part of the said order is extracted hereunder:
"In this writ petition, the petitioner has challenged the show cause notice dated 21.3.1995 as well as the Memorandum dated 21.11.1998 terminating the petitioner from the post of Dresser under the Directorate of Health Services, Government of Tripura, Agartala on the ground that the Citizenship Certificate gratned to the petitioner by the SDO, Dharmanagar, North Tripura had been cancelled, after a Vigilance inquiry. It is not in dispute that the certificates of HSLC and the Class-XII of the petitioner were obtained from the schools and colleges in Bangladesh and no explanation has been given by the petitioner as to how these certificates, as discussed above, had been obtained from the Schools and Colleges in Bangladesh. This led the State Vigilence to inquire into as to how the petitioner could obtain the Citizenship certificate from the SDO, Dharmanagar, North Tripura.
It is contended by the State Government that on the basis of the report of the State Vigilence Department, the Citizenship Certificate issued to the petitioner was cancelled by the SDO, Dharmanagar, North Tripura and consequent to the cancellation of the Citizenship Certificate, as discussed above, Memorandum dated 21.3.1995 (Annexure 8 to the writ petition) was issued by way of show cause notice and the petitioner has also submitted the W.P.(C) No. 616 of 2016 4 show cause statement dated 4.4.1995 to the aforesaid show cause notice, and thereafter, Memorandum dated 20.11.1998 (Annexure 10 to the writ petition) was issued terminating the service of the petitioner. The termination of the petitioner's service is an action consequential to the cancellation of the Citizenship Certificate which is not challenged in this writ petition and in the absence of challenging the cancellation of the Citizenship Certificate, no relief can be granted to the petitioner. Having considered the submissions made by the learned counsel appearing for the parties, and also in the backdrop of the discussions made above, I do not find any merit in the writ petition. Accordingly, the writ petition stands dismissed and interim order, if any, stands vacated. Mr. CS Sinha, the learned counsel for the petitioner prays that he be given liberty to challenge the order cancelling the Citizenship Certificate of the petitioner though belatedly. Having considered the nature of the grievance and predicament to which the petitioner is subjected to, liberty is granted to the petitioner to challenge the order cancelling his Citizenship Certificate, if so advised".
6. It is apparent therefrom that since the order cancelling the citizenship certificate was not challenged in the writ petition, the consequential order of termination from service was not interfered with by the Gauhati High Court by the said order dated 04.11.2008. However, in the order dated 20.08.2015 (Annexure 7 to the writ petition), that order was referred as the order dated 15.09.2008. By the memorandum dated 20.11.1998 (Annexure 8 to the writ petition), the citizenship certificate of the petitioner was cancelled. The entire text of the said memorandum dated 20.11.1998 (Annexure 8 to the writ petition) by which the petitioner was terminated under sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 is extracted hereunder:
GOVERNMENT OF TRIPURA DIRECTORATE OF HEALTH SERVICE AGARTALA NO.F.2(2-DRESSAR)-MS/ESTT-II/9, Dated, Agartala, the 20-11-1998 MEMORANDUM Whereas, Sri Bibha Basu Khisa S/O Late Murati Mohan Khisa working as a Dresser under the Directorate of Health Services, Government of Tripura, Agartala is declared as a Foreigner by the Government of Tripura consequent upon cancellation of his Citizenship Certificate by the competent authority. And whereas it has been decided by the Government not to retain any foreigner in employment under the State Government.W.P.(C) No. 616 of 2016 5
Now, therefore, the undersigned being the disciplinary authority in pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rule, 1965, hereby terminate the service of Sri Bibha Basu Khisa from the post of Dresser under this department with effect from the date of expiry of 1(one) calendar month from the date of service of this order to him.
Sd/ Illigible (Dr. S.K. Debbarma) Director of Health Services Government of Tripura Agartala To, Shri Bibha Basu Khisa, Dresser, I.G.M. Hospital, Agartala, West Tripura for information & compliance. This also disposes of his letter dated 4.4.95 addressed to the undersigned.
Even in this writ petition, the order cancelling the citizenship certificate has not been challenged though that was within the knowledge of the petitioner in view of the order dated 04.11.2008 and the memorandum dated 20.11.1998 (Annexure 8 to the writ petition).
7. Mr. Sinha, learned counsel has made a strange submission that since the copy of the said cancellation order was not supplied to the petitioner, he could not challenge the said order of the Sub Divisional Magistrate, Dharmanagar cancelling his citizenship certificate.
8. This court is really taken aback by such submission. After introduction of the Right to Information Act, how such submission can be sustained! Nowhere, the petitioner has stated that he had taken any initiative to collect the memorandum/ order of the Sub Divisional Magistrate, Dharmanagar, cancelling his citizenship certificate. It is obvious that despite the substantive knowledge, the termination order, as consequence was not challenged. Neither did the petitioner in this writ W.P.(C) No. 616 of 2016 6 petition challenged the said order declaring him as the foreign national, rather he has claimed to have the retiral benefits released knowingfully well that the order of termination, as stated, was not interfered by the court. There is no record with the writ petition that to show that the said order dated 04.11.2008 was challenged in the superior court or was there any reversal finding. Thus, the said order dated 04.11.2008 had reached its finality by efflux of time.
9. Mr. Chakraborty, learned Additional Government Advocate has submitted that the petitioner filed no appeal against the said order.
10. From the memorandum dated 21.03.1995 issued by the Director of Health Services, Government of Tripura, it appears that the petitioner was given the notice why his service shall not be terminated in view of the cancellation of his citizenship status by the Sub Divisional Magistrate, Dharmanagar. The petitioner without replying to the said notice contained in the memorandum dated 21.03.1995 filed the writ petition being C.R. 511 of 1998 which finally met its fate in the form of dismissal. As such, there is no difficulty in holding that there was substantive and constructive knowledge with the petitioner. The petitioner by filing the reply dated 04.04.1998 challenged the said notice contained in the memorandum No. F.2(2-DRESSAR)-MS/ESTT- II/9. Finally by the order dated 20.11.1998, the petitioner's service was terminated and there was no judicial interference. W.P.(C) No. 616 of 2016 7
11. True it is that by virtue of the interim order dated 04.11.2008passed by the Gauhati High Court in Civil Rule 511 of 1998, the petitioner had served the respondents but there was no legal basis for continuation of the service of the petitioner. It is for the serious lapse of the respondents, the petitioner continued till his day of superannuation.
12. In view of this, this court is of the considered opinion that when the termination order was not interfered by the court, and the order has reached to its finality, the petitioner cannot claim any benefit in the form of pension and other retiral benefits. Hence, this writ petition is without any substantive.
13. Having held so, this writ petition stands dismissed. There shall be no order as to costs.
JUDGE Saikat W.P.(C) No. 616 of 2016