Tripura High Court
Sri Ashis Das vs The State Of Tripura on 6 March, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTA LA
W.P.(C) No.36 of 2017
Sri Ashis Das,
son of late Harimohan Das, resident of
village - Sripur, P.O. Haplong, P.S.
Dharmanagar, North Tripura
...... Petitioner
Versus
1. The State of Tripura,
represented by the Commissioner and
the Secretary, Government of Tripura,
Tripura State Prisons Department,
Agartala, District - West Tripura
2. The Inspector General of Police,
Prison Directorate, Government of
Tripura, P.O. Dhaleswar, P.S. East
Agartala, District - West Tripura
...... Respondents
BEFORE
THE HON‟BLE MR.JUSTICE S. TALAPATRA
For the petitioner : Mr. A. Lodh, Advocate
For the respondents : Mr. K. N. Bhattacharji, Sr. Advocate
Mr. Kohinoor N. Bhattacharji, Advocate
Date of hearing and : 06.03.2017
delivery of judgment & order
Whether it is fit for reporting : Yes No
√
JUDGMENT & ORDER (ORAL)
Heard Mr. A. Lodh, learned counsel appearing for the petitioner as well as Mr. K.N. Bhattacharji, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the respondents.
[2]
[2] By means of this writ petition, the petitioner has challenged the order under No.F.II.-1267/IGP/2014/114-17 dated 06.01.2017, Annexure-P/5 to the writ petition, whereby the petitioner has been terminated on expiry of the period of one month from the date when the said order is served or tendered to him. The petitioner was appointed following a due selection process in pursuance to the memorandum under No. F.II.-1267/IGP/2014/45-48 dated 21.07.2015, Annexure-P/1 to the writ petition, in the post of Pharmacist [Allopath], Group-C, Non-Gazetted under Home (Jail) Department, Government of Tripura on PB-2 in the scale of pay of Rs.5310-24000/- with Grade Pay of Rs.2100/- [Revised `5700-24000/- + Grade Pay `2800] with other admissible allowances. By the order under F.II.-1267/IGP/2014/5829-34 dated 21.09.2015, Annexure-P/3 to the writ petition, the petitioner joined in the said post at Dharmanagar Sub-Jail, North Tripura on 26.09.2015 as would be evident from his joining report, Annexure-P/4 to the writ petition. Thereafter, by the said order dated 06.01.2017, the petitioner has been terminated when he was on probation. Apparently, the order of termination dated 06.01.2017 is an order of termination simplicitor. But the petitioner has categorically stated that if the veil is lifted, it would be apparent that on the basis of a complaint filed by the father-in-law of the petitioner after unfortunate death of his wife, the said action was resorted without following the procedure as laid down under W.P.(C) No.36 of 2017 Page 2 of 14 [3] Article 311(2) of the Constitution of India and hence, the petitioner has challenged the said order dated 06.01.2017. The petitioner has further asserted that a vilification campaign was orchestrated by his father-in-law by covering a press conference. The father-in-law of the petitioner has circulated the press statement where he has categorically stated, as translated verbatim [at page-25 of the writ petition] the petitioner, as under:
"We have been highly pleased getting the aforesaid news/information and through the said today‟s Press-Conference I am giving thanks to Sri Shantunu Debbarma, I.G. Prison, Sri Thatagata Roy (Governor of Tripura), Sri Manik Sarkar, Hon‟ble Chief Minister of Tripura, Hon‟ble (Jail) Minister Mr. Manindra Reang and Sri Sandip N. Mahatme, the District Magistrate(North Tripura) for taking an appropriate steps in the matter or removing Sri Ashish Das from his service.
With this I am giving thanks to all the people and giving thanks to the authority of Sripur as well as Dewanpasha Gram Panchayat, giving thanks to the print and electronic media workers of the state and all the workers/reporters/journalists involved with the press."
Even in the attestation form, the petitioner had clearly stated that he was arrested on 11.03.2015, released on 06.06.2015 and he had been facing the prosecution in connection with the Dharmanagar P.S. case No.23 of 2015 under Section 498-A of the IPC which is false and under investigation. He has further informed that the case is pending before the court of the Chief Judicial Magistrate, North Tripura Judicial District, Dharmanagar. There is no suppression of the material fact regarding the said case.
W.P.(C) No.36 of 2017 Page 3 of 14 [4] [3] Mr. A. Lodh, learned counsel appearing for the petitioner has submitted that taking notice of pendency of the said criminal case, the petitioner was given the letter of appointment dated 21.09.2015, Annexure-P/3 to the writ petition.
[4] By filing the rejoinder, the petitioner has further stated that the order of termination is punitive and motivated. The petitioner on oath has clearly stated that while accepting and approving the joining report, the competent authority had considered the pending investigation of the said police case and on consideration and approval thereof, the petitioner's joining report dated 26.09.2015 was accepted. In the said rejoinder, the entire text of the Note No.3, Annexure-1 to the rejoinder, has been extracted and reproduced which runs as under:
"Note No.3 Subject : Joining report of Sri Ashis Das as Pharmacist on new appointment at Dharmanagar Sub-Jail.
In pursuance of order vide No.II-
1267/IGP/2014/5829-34 dated 21.09.2015 Sri Ashis Das has submitted his joining report on new appointment as a Pharmacist in the Dharmanagar Sub-Jail on 26th September, 2015 (F/N). It appears from the records that he was in Dharmanagar Sub-Jail w.e.f. 11.03.2015 to 06.06.2015 in C/W case No.2105 DMN/023, U/S-498-A/304(B)/34 IPC which is under investigation. His joining report in original is placed at flat marked „B‟ for perusal of the same. So, his joining report may be accepted if approved.
Submitted."
In the termination order, it has not been reflected that for pending prosecution and investigation against the W.P.(C) No.36 of 2017 Page 4 of 14 [5] petitioner, he has been terminated as his retention was considered by the respondents not suitable. [5] The respondents did not seek any leave to file any additional affidavit against the said rejoinder as it is apparent that the averments made in the rejoinder is based on the official records.
[6] From the other side, Mr. K.N. Bhattacharji, learned senior counsel appearing for the respondents has categorically stated that it is a case of termination simplicitor as the petitioner was not found suitable in terms of the Clause 2(i) of the offer of appointment, the petitioner has been terminated. The claim of the petitioner is that he was discharging his duties most sincerely and diligently has been disputed by the respondents but in Para-9 of the reply, the respondents have denied that the complaint filed by the father-in-law of the petitioner has anything to do with the said order of termination. But on scrutiny of the records as produced by Ms. S. Chakraborty, learned counsel appearing for the respondents, particularly the file under No.II-1267/IGP/2014, Home (Jail) Department, it appears on the face of Note No.94 dated 06.12.2016 given by IG, Prisons (Tripura) based on the opinion of the Law Department's vide Note Nos.84 & 86 that the consultation resulted in hiding of the real cause of termination. It reads as under:
W.P.(C) No.36 of 2017 Page 5 of 14 [6]
"Here in the present case, the so called Sri Ashis Das has clearly mentioned in his attestation form that one criminal case is pending against him. He did not suppress about pendency of such criminal case. Therefore, there is no question at all to dismiss the service of Sri Das merely one criminal case is pending against him while joining to the service. Now in respect of proposal for taking action against concerned employees of scrutiny committee, I am of my view that if they committed any willful misdeed/misconduct/negligence etc. while discharging their duties or otherwise, a show cause notice may be issued against them. If satisfactory reply is not given, DP may be initiated against them as per law."
Thereafter, IG Prisons has suggested that if the service is required to be terminated, it can be terminated only on the ground that he is not found suitable in the post for which he had been engaged. The self-contained Note No.94 nowhere reflects that the performance of the petitioner was ever assessed for purpose of determining his suitability for retention in the service, but the final note given by the Minister, Home (Jail) Department exposed the v9ery foundation of the termination. The relevant part of the said note is reproduced hereunder:
"Sh. Ashis Das, Pharmacist (Allopathic), Gr. C. who was appointed vide order dated 21.09.2015 (P.342/c) has pending criminal case at Dharmangar Police Station vide No.2015DMN023 U/S 498(A)/304(B) IPC involving allegation of committing physical and mental torture on his deceased wife, late Smt. Punam Das leading into her death. Though the said criminal case on Sh. Ashis Das along with his mother is sub-judice in the Ld. Court of Sessions Judge, Dharmanagar, North Tripura but it would not be appropriate to keep him in Govt. service considering the seriousness of charges against him. Since, he is presently undergoing probation period of two years and still not „confirmed‟ in Govt. service, it is proposed to terminate the services of Sh. Ashis Das, Pharmacist by giving one month‟s notice to him as placed opposite. Ld. Advocate General‟s view in the matter has also been obtained vide Note 89 ante.W.P.(C) No.36 of 2017 Page 6 of 14 [7]
Placed for consideration."
Unfortunately, the advice rendered by the learned Advocate General is not in the best tradition of his office. There cannot be any confusion that the complaint made against the petitioner was made the foundation of his termination. [7] Mr. Lodh, learned counsel appearing for the petitioner has placed his reliance on a decision of the apex court in Jagdish Mitter vs. Union of India, reported in AIR 1964 SC 449, where the apex court has observed as under:
"In dealing with this question, Sinha, C.J., who spoke for the Court summarized the effect of the decision of this Court in Parshotam Lal Dhingra case: AIR 1958 SC 36 by formulating five propositions. Propositions 2 and 3 are relevant for our present purpose. They read as under :
„2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution.‟ It would be noticed that these propositions were laid down in a case where the order of discharge on its face attributed stigma to the probationer whose services were discharged and it was preceded by an enquiry held with a view to decide whether the said probationer's services should not be terminated forthwith; and so, with respect, in appreciating the effect of proposition 3 as enunciated in the judgment, these material facts must be borne in mind. We do not think that the Court intended to lay down a broad and unqualified proposition that wherever any kind of enquiry is held by the authority before terminating the services of a probationer, the subsequent termination of such a probationer's services in whatever form it is couched, must always be deemed to amount to his dismissal.W.P.(C) No.36 of 2017 Page 7 of 14 [8]
As we have already indicated, almost in every case where the question of continuing the probationer or a temporary servant falls to be decided by the authority, the authority has necessarily to inquire whether the said probationer or temporary servant deserves to be continued and that may sometimes lead to an enquiry. In fact, it would be an act of fairness on the part of the authority to make such an enquiry and give a chance to the servant concerned to explain his conduct before the authority reaches a conclusion in the matter. Such an enquiry is actuated solely by the desire to decide the simple question as to whether the temporary servant or the probationer should be continued or not, and is undertaken for that purpose alone without any desire to attach any stigma to him. An enquiry of this character must be distinguished from the formal departmental enquiry where charges are served on the servant and which is undertaken for the purpose of punishing him; otherwise it would lead to this anomalous result that in the case of a temporary servant or a probationer, the authority must discharge him without inquiring into his alleged inefficiency or unsuitability but if the authority chooses to act fairly and makes some kind of enquiry and gives an opportunity to the servant concerned to explain his alleged deficiency, the discharge becomes dismissal. We have no doubt that in laying down third proposition, this Court did not refer to such informal enquiries and did not intend to take in cases of simple and straightforward discharge of temporary servants which follow such informal enquiries.
The third decision to which we ought to refer is the decision of this Court in S. Sukhbans Singh v. State of Punjab : AIR 1962 SC 711. This case concerned a who was recruited in the year 1936 and appointed as an extra Assistant Commissioner on probation in 1945. In 1952, he was reverted to the post of tehsildar by an order duly served on him. This order was followed by a warning served on him on 18 September, 1953, and in the warning in was clearly stated that the officer was guilty of misconduct in several respects. It appears that the officer challenged the validity of the order reverting him to the post of a tehsildar on the ground that it amounted to punishment, and he also alleged that it was the result of mala fides. This Court considered the relevant material adduced in the proceedings which showed that the record of the officer was extremely satisfactory and that the order reverting him showed that the Government was acting mala fide. Thus, the decision in this case was based mainly, if not solely on the ground that the reversion of the officer was mala fide. It is true that in the course of the judgment, this Court has observed that having regard to the sequence of events which led to the reversion followed by the warning administered to the officer considered in the light of his outstanding record, the reversion could also be held to be a punishment; W.P.(C) No.36 of 2017 Page 8 of 14 [9]
but the officer's plea which proved effective was the plea of mala fides against the Government." [8] Mr. Lodh, learned counsel for the petitioner has placed his reliance on Samsher Singh vs. State of Punjab and another, reported in (1947) 2 SCC 831, where a Constitutional Bench of the apex court has observed inter alia as under:
"64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In Gopi Kishore Prasad v. Union of India : A.I.R. 1960 S.C. 689, it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and imcompetent officer.
65. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. (See State of Orissa v. Ramnarain Das : AIR 1961 SC 177. If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance, [See Madan Gopal v. State of Punjab : AIR 1963 SC 531. In R. C. Lacy v. State of Bihar & Ors. (Civil Appeal No. 590 of 1962 decided on 23 October, 1963] it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary W.P.(C) No.36 of 2017 Page 9 of 14 [10] inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). (See R. C. Banerjee v. Union of India: AIR 1963 SC 1552). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Artiele 311 (See Champaklal G. Shah v.
Union of India : AIR 1964 SC 1854). On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment (See Jagdish Mitter v. Union of India : A.I.R. 1964 S.C. 449)."
[9] Placing reliance on both Jagdish Mitter (supra) and Samsher Singh (supra), Mr. Lodh, learned counsel for the petitioner has contended that if the probationer is faced with the charge of misconduct etc. and if his services are terminated without following the provisions of Article 311(2) of the Constitution of India, he can claim for protection. Mr. Lodh, thereafter, placed his reliance on Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, reported in (1993) 3 SCC 60, where the apex court has observed as under :
"It was held by Venkataramiah, J. (as he then was) (p.392) that the letter of termination referred to the resolution of the Managing Committee, that the said resolution was made part of the order as an enclosure and that the Resolution in its turn referred to the report of the Manager. A copy of the Manager's report had been filed alongwith the counter and the said report was the `foundation'. Venkataramiah,J.
(as he then was) held that the Manager's report contained words amounting to stigma. The learned Judge said: „This is a clear case where the order of termination issued is merely a camouflage for an order imposing a penalty of termination of service on the ground of misconduct.....‟, that these findings in the Manager's report amounted to a `mark of disgrace or infamy' and that the appellant there was visited with evil consequences. The officer was reinstated with all benefits of backwages and continuity of service."
W.P.(C) No.36 of 2017 Page 10 of 14 [11]
[Emphasis added] Thereafter, it has been succinctly observed by the apex court in Dipti Prakash Banerjee (supra) as under:
"34. It will be seen from the above case that the resolution of the committee was part of the termination order being an enclosure to it. But the offensive part was not really contained in the order of termination nor in the Resolution which was an enclosure to the order of termination but in the Managers's report which was referred to in the enclosure. The said report of the Manager was placed before the Court along with the counter. The allegations in the Manager's report were the basis for the termination and the said report contained words amounting to stigma. The termination order was, as stated above, set aside.
35. The above decision is, in our view, clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma.
36. It was in this context argued for the Respondent that the employer in the present case had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warnings, requested to improve, or where he was given a long rope by way of extension of probation, this Court has said that the termination orders cannot be held to be punitive. Hindustan Paper Corporation vs. Purendu Chakraborty : (1996) 11 SCC 404. Oil & Natural Gas Commission vs. Dr. Md. S. Iskender Ali : (1980) 3 SCC 428, Unit Trust of India vs. T. Bijaya Kumar : (1992) 5 SLR 855 (SC)], Principal, Institute of P.G.Medical Education & Research, Pondichery vs. S.Andel & others: 1995 Suppl. (4) SCC 609 and a labour case Oswal Pressure Die Carting Industry vs. Presiding Officer : (1998) 3 SCC 225. But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer's future whatever be earlier W.P.(C) No.36 of 2017 Page 11 of 14 [12] opportunities granted by the respondent organisation to the appellant to improve.
On this point, therefore, we hold that the words amounting to `stigma' need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly."
[10] Mr. Lodh, learned counsel for the petitioner has further placed his further reliance on Abhijit Gupta vs. S.N.B. National Centre, Basic Sciences and others, reported in 920067) 4 SCC 469 where the basic principles of assessment of performance has been discussed.
[11] Mr. K.N. Bhattacharji, learned senior counsel for the respondents has referred a decision of this court in Sri Jhantu Bikash Das vs. the High Court of Tripura and others [judgment and order dated 05.09.2016 delivered in W.P.(C) No.404 of 2016] where this court has observed that when the materials cannot be said to form the foundation, but they can, in appropriate cases, be said to be the motive for recommending the discharge. The petitioner has thus been terminated from the service and for such motive, the order of termination of a probationer cannot be held unconstitutional. In Jhantu Bikash Das (supra), this court has referred the passage [the paragraph- 8] from H.F. Sangati vs. Registrar General, High Court of Karnataka and others, reported in (2001) 3 SCC 117, where Samsher Singh (supra) and Dipti Prakash Banerjee (supra) were considered. The said passage is extracted hereunder: W.P.(C) No.36 of 2017 Page 12 of 14 [13]
"8. It is well settled by a series of decisions of this Court including the Constitution Bench decision in Parshotam Lal Dhingra v. Union of India : AIR 1958 SC 36 and seven-Judge Bench decision in Samsher Singh v. State of Punjab:
(1947) 2 SCC 831 that services of an appointee to a permanent post on probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. In Samsher Singh case it was observed that the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post; the competent authority may come to the conclusion that the probationer is unsuitable for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude.
No punishment is involved in such a situation. Recently, in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences :
(1999) 3 SCC 60, having reviewed the entire available case-law on the issue, this Court has held that termination of a probationer‟s services, if motivated by certain allegations tantamounting to misconduct but not forming foundation of a simple order of termination cannot be termed punitive and hence would be valid. In Satya Narayan Athya v. High Court of M.P.: (2002) 1 SCC 520, the petitioner appointed on probation as a Civil Judge and not confirmed was discharged from service in view of the non-
satisfactory nature of his service. This Court held that the High Court was justified in discharging the petitioner from service during the period of probation and it was not necessary that there should have been a charge and an inquiry on his conduct since the petitioner was only on probation and it was open to the High Court to consider whether he was suitable for confirmation or should be discharged from service."
[12] So far the position of law is concerned, it is no more res-integra. If on lifting of the veil, it is found that the foundation of the termination is the materials which are seriously prejudicial and stigmatic then those cannot be simply treated as the motive. In that event, the petitioner is entitled to the protection under Article 311(2) of the Constitution of India. In this case, this court finds that there was no assessment of performance of the petitioner at all. From the very beginning, the respondents have W.P.(C) No.36 of 2017 Page 13 of 14 [14] searched for a mechanism to discard the petitioner from his service on the basis of a complaint received from his father-in- law. As such, the explanation of the respondents as provided is hardly satisfactory inasmuch as this court is satisfied that the complaint against the petitioner was made the foundation to terminate him from his service and hence, the petitioner was entitled to the protection under Article 311(2) of the Constitution of India. Since the safe-guards was denied to the petitioner, the action of the respondents cannot be sustained and accordingly, the same is interfered with.
In the result, the termination order dated No.F.II.- 1267/IGP/2014/114-17 dated 06.01.2017, Annexure-P/5 to the writ petition is set aside and quashed. The petitioner shall be reinstated in the service and he shall be paid the backwages within a period of 3(three) months from the date when the petitioner shall furnish a copy of this order. Hence, this writ petition stands allowed.
There shall be no order as to costs.
JUDGE Sujay W.P.(C) No.36 of 2017 Page 14 of 14