Tripura High Court
Sri Paresh Debnath vs The State Of Tripura on 15 July, 2020
Equivalent citations: AIRONLINE 2020 TRI 237
Author: Akil Kureshi
Bench: Akil Kureshi
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HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.1120/2018
Sri Paresh Debnath, S/o. Lt. Nitai Debnath, Resident of Vill.-
Bhawlia Basti, P.O-Ambassa, District-Dhalai Tripura, PIN-799289.
............... Petitioner(s).
Vs.
1. The State of Tripura, to be represented by Principal Secretary,
Department of Panchayat, Government of Tripura, New Secretariat
Complex, Kunjaban, Agartala, West Tripura, PIN-799010.
2. The Director, Department of Panchayat, Government of Tripura.
3. DM & Collector, Dhalai, Jahwarnagar, Dhalai District, Tripura.
4. The District Programme Coordinator, Dhalai, (The DM &
Collector), Government of Tripura, Jahwarnagar, Dhalai District.
5. The Program Officer, Ambassa R. D. Block, (The BDO, Ambassa
R. D. Block, Govt. of Tripura), Ambassa R. D. Block, Dhalai Tripura.
............... Respondent(s).
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
For the Petitioner(s) : Mr. P. Roy Barman, Advocate.
Mr. Samarjit Bhattacharjee, Adv.
Mr. Kawsik Nath, Advocate.
For the Respondent(s) : Mr. D. Bhattacharya, Govt. Adv.
Date of hearing & judgment : 15th July, 2020.
Whether fit for reporting : NO.
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J U D G M E N T (O R A L)
The petitioner has challenged an order dated 22nd November, 2018 by which his engagement as a Gram Rojgar Sevak under MGNREGA scheme came to be terminated.
[2] Brief facts are as under:
The petitioner was engaged as a Gram Rojgar Sevak under an order dated 24.01.2011 as an undergraduate worker. This order specified that his appointment is purely temporary under MGNREGA scheme on fixed salary of Rs.5,600/- per month for a contract period of two years. The terms and conditions of engagement further provided that such engagement was purely contractual and temporary and would not confer any right of regularisation or permanent employment. Such engagement may be terminated at any time, by issuing one month's notice by either side. The engaging authority could terminate the arrangement after issuing notice or offering notice pay in lieu of notice, with or without assigning any reasons. [3] The petitioner continued to discharge such duties even after completion of the period of two years envisaged in his initial order of engagement. In other words, his engagement was extended from time to Page - 3 of 13 time. It appears that the remuneration for the said work is provided in two scales undergraduate workers would receive less pay than the graduate workers. The petitioner obtained a graduate degree in the year 2012 and requested that the Government to pay him higher wages prescribed for the graduate workers. Since this was not done, he filed W.P(c) No.393/2018 which is pending.
[4] Pending such petition, the respondents issued the impugned order dated 22.11.2018. Though it is titled as a notice, essentially by such order, the service of the petitioner was terminated with immediate effect. This order reads as under:
"NOTICE WHEREAS, the performance of Sri Paresh Debnath, GRS, Kulai RF Extension VC under Ambassa RD Block, Dhalai District is found very dissatisfactory for which the progress of construction of IHHLs under SBM (G), MGNREGA, OMAY(G), PTG housing etc. schemes have been adversely affected, AND WHEREAS, Sri Paresh Debnath, GRS, Kulai RF VC under Ambassa RD Block, Dhalai District is found very irregular, not attending Office timely and also remains absent from the Office during pre-scheduled programmes for which previously also Sri Debnath, GRS was cautioned, but all in vain, AND WHEREAS, all such activities on the part of Sri Debnath, GS working at Kulai RF Extension VC proved his Willful negligence, Gross carelessness & Lack of attention to or neglect of work or duties and also an act of Disobedience of Lawful orders given by the Authority.
Page - 4 of 13 Therefore, Sri Paresh Debnath, GRS working at Kulai RF Extension VC under Ambassa RD Block is hereby terminated from the contractual Job of GRS under the scheme of MGNREGA forthwith.****"
[5] Appearing for the petitioner, learned counsel Mr. P. Roy Barman submitted that the petitioner's performance was always satisfactory. His contractual engagement was continued from time to time which itself would show that there were no complaints about his work. During his entire tenure, the respondents had never served any notice or memo indicating that in any aspect of the work, the petitioner was found wanting. He submitted that only because the petitioner raised the issue of proper wages by filing a writ petition before this Court, the respondents on wholly untenable grounds terminated his engagement. He contended that the impugned order is stigmatic and punitive. Even as a contractual employee, the petitioner's service could not have been terminated on the grounds mentioned in the impugned order without hearing. No show cause notice or opportunity of hearing was granted to the petitioner before passing the impugned order.
[6] In this context, counsel for the petitioner relied on following decisions:
Page - 5 of 13 (1) East Coast Railway and Another Vrs. Mahadev Appa Rao and Others: reported in (2010) 7 SCC 678.
(2) Oryx Fisheries Private Limited Vrs. Union of India and Others: reported in (2010) 13 SCC 427.
(3) Kumari Shrilekha Vidyarthi and others Vrs. State of U.P and others: reported in (1991) 1 SCC 212.
[7] On the other hand, Mr. D. Bhattacharya, learned Government Advocate appeared for the respondents and opposed the petition contending that the petitioner's engagement was purely temporary and contractual. As per the condition of the contract, the same could be terminated at any time without assigning any reasons. The petitioner's work was found to be unsatisfactory. He was, therefore, disengaged. Not being a regular government servant, he had no protection of tenure under Article 311 of the Constitution of India. Counsel relied on following decisions:
1. Ashok Kumar Sonkar Vrs. Union of India and others; reported in (2007) 4 SCC 54.
2. State of Manipur and others Vrs. Y. Token Singh and Others; reported in (2007) 5 SCC 65.
[8] The facts are not seriously in dispute. The petitioner was engaged as a Gram Rojgar Sevak in the year 2011. His initial engagement Page - 6 of 13 was for a period of two years which continued from time to time. His engagement was abruptly discontinued by the impugned order dated 22.11.2018. This coincided with the petitioner filing a writ petition before this Court seeking higher wages on the ground that he had acquired the qualification of graduation after being engaged. The order itself records that the performance of the petitioner was found to be very unsatisfactory, due to which the progress of the construction of the schemes had suffered. The order also records that the petitioner was irregular in attending the office. He remains absent during programs scheduled in advance. It was also alleged that he is found to be negligent, grossly careless and lacks attention or neglects his work and duties. He also disobeys orders issued by his higher authorities.
[9] This order thus cites catena of faults and shortcomings in the petitioner and his discharge of the duties. Short of alleging lack of integrity, the order indicates almost every possible shortcoming in performance of the duty by an employee in the Government engagement. In one of the allegations the authority also attributes, "willful negligence", a paradoxical expression. A person can either be negligent in discharge of his duties or be wilfully inefficient. But not both. Be that as it may, I am Page - 7 of 13 not concerned about the tenor or texture of the impugned order. What is of far greater significance is that an order which is so strongly worded and in which such strong attributes of lack of devotion to duty are made, is passed without even assemblance of opportunity of hearing being granted to the petitioner. It is impossible to deny that the impugned order is stigmatic and punitive. The reasons cited for cutting short the petitioner's contractual engagement were his gross negligence, irregular attendance, disobedience of the official orders and so on.
[10] A few things must be seen in context of these averments contained in the impugned order. Firstly, there is no material on record suggesting that prior to issuance of the order, the department had ever communicated to the petitioner any of these shortcomings in performance of his duties. No notice or memo is produced on record to suggest that the petitioner was put to notice about any of these aspects. No instances of the past where the petitioner may have shown negligence, disregard to the orders of the authorities, showed carelessness or lack of attention in discharge of his duties have been brought on record. The issuance of the impugned order has coincided with the petitioner demanding higher wages by filing writ petition before the Court.
Page - 8 of 13 Further, the petitioner has averred in the petition that:
"the petitioner has been visited with the order of termination vide impugned Notice, dated, 22.11.2018, as the Petitioner filed writ petition vide W.P.(C) 393 of 2018 seeking remuneration of graduate GRS. It is pertinent to mention, that, in counter affidavit filed in W.P(C) 393 of 2018, there has been no whisper of any allegation against the Petitioner. From the counter affidavit filed by the Respondent No.3, 4 & 5 in W. P(C) 393 of 2018, it is beyond any shadow of doubt, that, the Respondents have been very much satisfied with the performance of the Petitioner and for this reason they did not say anything against the Petitioner in the counter affidavit."
[11] In reply to this portion of the petition, the respondents in their affidavit in reply have stated as under:
"That, in response of statement made in paragraph 7 & 8 to the writ petition, it is stated that in the appointment orders term and condition it is clearly mentioned that, the engagement is on purely contract & temporary basis, the engagement will not confer any title to regular scale/permanent employment. The contract is for period of 2 years only. The engagement may be terminated at any time by one month's notice given by the either side, with or without assigning any reason. The engaging authority, however, have reserved the right to terminate the engagement forthwith or before expiry of the stipulated period of notice by making payment of some equivalent to the one month's remuneration for the period of notice. The petitioner has been repeatedly instructed to perform his assigned duties but in spite of that the performance of the petitioner is found unsatisfactory which compelled the respondent for approval of appropriate action by the Higher Authority, Approval of the District Programme Coordinator (DM, Dhalai) on 21.11.2018 convey the approval for termination of the petitioner, GRS from the contractual job under MGNREGA."
Page - 9 of 13 [12] From the above pleadings, it can be seen that the respondents have not seriously disputed the petitioner's averments that all throughout his service was found to be satisfactory, that his immediate superior head recommended his case for higher wages and that it was because of his performance that his engagement was continued from time to time. In such a background, I have no hesitation in coming to the conclusion that the impugned action cannot survive the test of law. As a contractual engagement, the petitioner may not enjoy the protection of tenure like a regular Government servant does in terms of Article 311 of the Constitution of India. Nevertheless, when any order adverse to a person is passed which has adverse civil consequences, a bare minimum principles of natural justice must be followed. The impugned order is highly stigmatic and punitive in nature. It is not an order of termination of contractual engagement simpliciter. It cites extremely adverse reasons for disengagement of the petitioner after nearly seven years of continues engagement. As noted, no prior notice or memo was issued to the petitioner pointing out any of the shortcomings in the performance of his duties. The terms of the contractual engagement which provide that either side can terminate the contract by issuing one month of notice and that the engaging authority could also terminate the contract by offering one Page - 10 of 13 month's notice pay and without citing any reasons, would not save the situation for the department. If the respondents had passed an order simpliciter terminating the contractual engagement, this discussion was not necessary. However, they have chosen to pass an order which is highly stigmatic and punitive. A bare minimum opportunity of hearing was, therefore, necessary. No explanation was sought from the petitioner to any of these allegations before the order was passed. [13] In a recent judgment dated 11th February, 2020 in case of Sri Umesh Kalai Vrs. The State of Tripura and others in W.P(c) No. 22/2019 in somewhat similar background following observations were made.
[5] Reproduction of the impugned order would show that the same is not only adverse the petitioner but is also highly stigmatic. The petitioner is stated to be a worker who is not sincere in his duties. According to the authority on proved willful negligence, gross carelessness and lack of attention to or neglect of work or duties and also the act of disobedience of lawful orders his services were required to be terminated. In clear terms, thus the order results into adverse civil consequences and also brandishes the petitioner as a useless worker and defying of the orders of the employer.
[6] Not being a regular Government servant the petitioner may not have the protection of Article 310 of the Constitution, nor a detailed procedure for holding a departmental inquiry before passing any such order of termination in terms of the Discipline and Appeal rules framed under Article 309 of the Constitution need to be followed. Nevertheless, when an order of this nature which results into adverse civil consequences and also stigmatizes Page - 11 of 13 the petitioner is passed, a bare minimum opportunity of hearing ought to have been granted. Without a show cause notice, without pointing out the nature of so called negligence and defiance of the orders of the authority, the competent authority has unilaterally concluded that the petitioner's services on such grounds were required to be terminated. When the petitioner had continued, although on contractual basis, for about 10 years for which he would be remunerated regularly from government exchequer, before taking away such engagement that too on the ground of negligence and misconduct, a minimum hearing was needed.
[7] Under the circumstances, impugned order dated 22.11.2018 is set aside. I am informed that there are large number of posts of Gram Rozgar Sevak many of which may be vacant. The petitioner shall be reinstated in the said position within one month from today. There shall be no requirement of back wages except for the wages from the date of this order. Nothing stated in the order would prevent the respondents from issuing a show cause notice to the petitioner for his alleged defects in discharge of his duties and taking fresh action in accordance with law, if so advised."
[14] As held by the Supreme Court in case of Ajay Hasia and others Vrs. Khalid Mujib Sehravardi and others; reported in (1981) 1 SCC 722, every State action must be reasonable and not arbitrary. Even in case of Kumari Shrilekha Vidyarthi(supra), the Supreme Court has brought in the concept of fairness in contractual engagement by the State agencies.
[15] Judgment in case of Ashok Kumar Sonkar(supra) does not apply in the present case. It was a case in which the question was what would be the Page - 12 of 13 cut off date for acquiring educational qualification for recruitment. It was held that in absence of any other prescription, the last date for filing the application would be the date relevant for acquisition of the educational qualifications. It was therefore found that the petitioner was not qualified for appointment. In such background it was observed that granting hearing was futile and therefore non granting of hearing before cancellation of appointment would not be fatal. [16] In case of Y. Token Singh(supra) it was found that the appointments were fake, were made without following any established procedure, without knowledge of the concerned department and not by competent authority. In such a background, it was held that the appointments were non est and not binding to the department. Before cancelling such appointments, principles of natural justice were not required to be followed. [17] In the result, the impugned order dated 22nd November, 2018 is set aside. The respondents shall re-engage the petitioner in the same capacity as before. He would be paid 50% wages for the intervening period. His re-engagement may be done within one month from today. Back wages may be paid within four months. However, nothing stated in this order would preclude the respondents from issuing a notice to the petitioner regarding his alleged shortcomings in the discharge of his duties and thereafter proceeding in accordance with law.
Page - 13 of 13 [18] The petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.
( AKIL KURESHI ), CJ Dipankar