WP(C)/248/2021 of SENORA JOHNY ARENGH Vs THE GARO HILLS AUTONOMOUS DISTRICT COUNCIL AND 2 ORS. on 17 October 2024

J U D G M E N T

1. Heard Mr. P.T. Sangma, learned counsel for the petitioner whohas submitted that the fundamental rights of the petitioner guaranteedunder Article 14, 16 and 21 of the Constitution of India having beenviolated by the action of the respondents herein has prompted the filingof this instant application for issuance of a writ in the nature ofmandamus, and/or certiorari and any other appropriate writ.

2. The learned counsel has also submitted that the petitioner wasappointed as an employee of the Garo Hills Autonomous DistrictCouncil (GHADC), Tura and at the relevant period, was functioning as aLower Divisional Assistant on the strength of an order dated 16.01.2013passed by the Secretary to the Executive Committee, GHADC.

3. In course of his service, the petitioner was served with a showcause notice dated 30.07.2021 issued by the Principal Secretary,GHADC with a direction to file a reply within 72 hours. In the saidshow cause notice addressed to the petitioner as President of the Non-Gazetted Employee Association (NGEA), it was alleged, inter alia, thathe had instigated other non-gazetted staff members of the Council togather in the office premises of the GHADC, Tura on 22.07.2021 inprotest of the said authority, and that he had also made severalstatements with the intention to denigrate and defame the Administrationand Officers of the GHADC.

4. The petitioner has then replied to the said show cause noticewhich was received by the respondent authorities on 01.08.2021, refuting the charges made against him. However, the respondentauthority in the Executive Committee meeting held on 05.08.2021 in theoffice chamber of the Chief Executive Member, GHADC/respondentNo. 2 had inter alia, decided to terminate the services of the petitioner,the said decision being followed by the order dated 06.08.2021 wherebyhis services has been terminated.

5. The learned counsel has submitted that the action of therespondent authority is in gross violation of the accepted norms ofservice jurisprudence wherein an employee can be terminated only afterproper disciplinary or departmental procedure has been followed.However, in the case of the petitioner no departmental proceeding hasbeen initiated and as such, without the appointment of an EnquiryOfficer who would conduct such enquiry in a proper manner, thetermination of the services of the petitioner has been carried outarbitrarily and illegally.

6. The learned counsel has also submitted that apart from theshow cause notice and suspension of the petitioner, seven otheremployees of the Council were also issued similar show cause for whicha joint written reply dated 01.08.2021 was filed by them including thepetitioner herein. It is to be noted that the seven other employees havebeen placed under suspension vide relevant order dated 06.08.2021issued by the Principal Secretary to the Executive Committee, GHADC,Tura whereas, the petitioner vide a separate order dated 06.08.2021(supra) has been terminated from service. Furthermore, as on date, allthe seven employees referred to hereinabove have since been reinstatedin service vide respective order of the Secretary to the ExecutiveCommittee, GHADC, Tura. One such order dated 22.03.2022 has been brought on record by way of an additional affidavit by the petitionerwherein vide the said order one of the suspended employees namedHenyvirth Ch. Marak, Forest Guard, Forest Department, GHADC wasreinstated in service and directed to join office duty. This smacks ofdifferential treatment to the petitioner, thereby violating his right ofbeing treated equally with other similarly situated employees who werecharged with the same offence.

7. The principle of natural justice having been violated, thepetitioner is therefore before this Court with a prayer to set aside andquash the impugned termination order dated 06.08.2021, submits thelearned counsel.

8. Per contra, Mr. S. Dey, learned Standing Counsel, GHADCappearing for all the respondents herein has submitted that the petitioneras President of NGEA was in the forefront of several protests, strikesand agitations against the authorities of the GHADC. The said showcause notice dated 30.07.2021 was issued upon the petitioner who wasfound to have indulged in activities unbecoming of an employee of theDistrict Council when on 22.07.2021 in the midst of the COVID-19pandemic lockdown he had instigated other employees to protest againstthe authorities, such activities being violative of the conduct expectedfrom an employee of the Council.

9. The learned Standing Counsel has also further submitted thatthe Executive Committee has carefully considered the reply filed by thepetitioner and has found out that the same was more of a challenge andcounter allegation in nature, the same being directed at the authoritiesconcerned. It is on this ground, the reply not being found satisfactory, that the Executive Committee had decided to terminate the services ofthe petitioner.

10. The learned Standing Counsel has also submitted that theGHADC is not governed by the service rules of the State Governmentand/or the Central Government to make it applicable to its employees,and as such, there is no requirement of a formal disciplinary enquiry tobe initiated. However, due opportunity was given to the petitioner toexplain himself. As such, there is no violation of the principle of naturaljustice.

11. The learned Standing Counsel has also submitted that thepetitioner is well aware that his employment is temporary in nature, forwhich the respondent authority has the right to terminate such temporaryservices at any point of time which was done so under thecircumstances. Therefore, having lost faith in the conduct of thepetitioner, his termination from service is found justified and there is noquestion of his reinstatement.

12. The learned Standing Counsel has cited the case of SirsiMunicipality v. Cecelia Kom Frances Tellis, reported in 1973(3) SCR348 to say that in such case the Hon’ble Supreme Court has held thattermination or dismissal of what is described as a pure contract ofmaster and servant is not declared to be a nullity however wrongful andillegal it may be. The reason is that dismissal in breach of contract isremedied by damages. The same principle was also followed in the caseof Executive Committee of U.P. State Warehousing Corporation Limitedv. Chandra Kiran Tyagi, (1970) 2 SCR 250 and also in the case of IndianAirlines Corporation v. Sukhdeo Rai, 1971 (2) SCC 192, further submits the learned Standing Counsel.

13. In order to lay stress on the nature of employment of thepetitioner and the consequences thereof, the learned Standing Counselhas also referred to the case of Abdul Motaleb v. Garo Hills DistrictCouncil, Tura & Anr., AIR 1961 Assam 69 wherein at para 5 the Courthas observed as follows:

“5. In this matter the petitioner does not contend that the StateGovernment had anything to do either with the appointment ordismissal or had any control over the duties and activities of theperson concerned. Therefore in our opinion Article 311 of theConstitution has no application and he could not invoke the aidthereof. Apart from what is stated above, we find nothing in thefacts stated in the petition that there has been any violation ofthe principles of natural justice. The petitioner was an employeeof the District Council and was asked to serve on a temporarybasis. It is not contended either on his behalf that the postbecame either permanent or quasi-permanent and therefore thenotice terminating his appointment could not be said to beinvalid in the eye of law. The petition accordingly fails and isdismissed but without costs.”

14. Finding nothing wrong with the passing of the impugned orderof termination of the services of the petitioner the learned StandingCounsel has submitted that this petition being devoid of merits is liableto be dismissed.

15. What is apparent from the materials on record and onconsideration of the submission and contention made by the learnedcounsels for the rival parties is that the mode and manner in which theemployment of the petitioner as an employee of the GHADC, Tura wasterminated is under scrutiny herein.

16. The services of the petitioner have not been terminated simpliciter, that is, because such employment is temporary in nature.Even if this is the case, adequate reasons for such termination have to befurnished to justify the action taken. However, the termination of thepetitioner was based solely on the fact that on an apparent misconducton his part, after show cause was called for to which he has accordinglyreplied, the reply found not satisfactory, he was thereafter terminatedfrom his employment.

17. The learned Standing Counsel for the respondent/GHADC hasnot been able to show from the records that before the said terminationorder was passed the petitioner was subjected to a proper enquiry toallow the concerned authorities to come to a finding necessitating histermination. Though reliance was placed in the authority of the case ofAbdul Motaleb(supra) to say that as far as the issue of termination fromservice of an employee of the GHADC vis-à-vis the case of an employeeunder the State or Union Government, is concerned, there cannot be anycomparison as the provision of Article 311 of the Constitution of Indiawill not be applicable to an employee of the GHADC, the ruling neversuggested that the principle of natural justice as far as the applicabilityof the principles of service jurisprudence is concerned will not beapplicable in matters of employment.

18. Be that as it may, the learned Standing Counsel hascontradicted himself in this respect as it is very evident from thecontents of the minutes of the meeting of the Executive Committee, theApex body of the GHADC, held on 05.08.2021, which has beenannexed as Annexure-4 in this petition, certain resolutions have beenpassed, one, being that the seven employees mentioned by the petitionerbe placed under suspension, secondly, that the petitioner be terminated from service, thirdly, that an Inquiry Committee for disciplinary actionhas been constituted with the Chairman and members named therein. Yetanother resolution is the decision to adopt the Meghalaya Services(Discipline & Appeal) Rules, 2011.

19. What the above entails is that the Executive Committee isconscious of the fact that for the purpose of fair administration, adelinquent employee has to be subjected to a process of an enquirybefore any action is contemplated to be taken against him or her. If sucha process is made available to the seven employees who were servedwith similar show cause notices and who have jointly filed their replyalong with the petitioner, then indeed the principle of natural justice asfar as the petitioner is concerned has not been followed or applied.

20. Furthermore, to say that the GHADC is not required to followthe accepted norm of institution of an enquiry to examine a case ofmisdemeanor of an employee, the adopting of the Meghalaya Services(Discipline & Appeal) Rules, 2011 should not have been resorted to. Itmay be pointed out that as per Rule 9 of the said Rules of 2011, theprocedure of how an inquiry is to be conducted has been laid down. ThisRule is extracted herein as:

“9.Procedure for imposing penalties.-(9,1) Withoutprejudice to the provisions of the Public Servants (Inquiry) Act,1850, no order imposing on a Government servant any of thepenalties specified in rule 7 shall be passed except after aninquiry, held as far as may be, in the manner hereinafterprovided.

(9.2) The Disciplinary Authority shall frame definite charges onthe basis of the allegations on which the inquiry is proposed tobe hold. Such charges, together with a statement of theallegations on which they are based, shall be communicated inwriting to the Government servant, and he shall be required to

submit within such time as may be specified by theDisciplinary Authority, a written statement of his defence andalso to state whether he desires to be heard in person. At thetime of delivering the charges, the Disciplinary Authority shallinvariably furnish to the Government servant a list ofdocuments and witnesses by which each article of charges isproposed to be sustained.

Explanation - In this sub-rule and in sub-rule (3), the expression"the Disciplinary Authority" shall include the authoritycompetent under these rules to impose upon the Governmentservant any of the penalties specified in rule 7.

(9.3) The Government servant shall, for the purpose ofpreparing his defence, be permitted to inspect and take extractsfrom such official records as he may specify, provided that suchpermission may be refused if, for reasons to be recorded inwriting in the opinion of the Disciplinary Authority suchrecords are not relevant for the purpose or it is against thepublic interest to allow him access thereto:

Provided that when a Government servant is permitted toinspect and take extracts from official records due care shall betaken against tampering, removal or destruction of records.

(9.4) On receipt of the written statement of defence, or if nosuch statement is received within the time specified theDisciplinary Authority may itself inquire into such of thecharges as are not admitted or, if it considers it necessary so todo, appoint for the purpose a Board of inquiry or an InquiringOfficer.

(9.5) The Disciplinary Authority may nominate any person topresent the case in support of the charges before the Authorityinquiring into the charges (hereinafter referred to as theInquiring Authority). The Government servant may present hiscase with the assistance of any other Government servantapproved by the Disciplinary Authority, but may not engage alegal practitioner for the purpose unless the person nominatedby the Disciplinary Authority as aforesaid is a legal practitioneror unless the Disciplinary Authority, having regard to thecircumstances of the case, so permits.

(9.6) The Inquiring Authority shall, in the course of the inquiryconsider such documentary evidence and take such oral evidence as may be relevant or material in regard to thecharges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and togive evidence in person, and to adduce documentary and oralevidence in his defence. The person presenting the case insupport of the charges shall be entitled to cross-examine theGovernment servant and the witnesses examined in his defence.If the Inquiring Authority declines to examine any witness or toadmit any document in evidence on the ground that hisevidence or such document is not relevant or material, it shallrecord its reasons in writing.

Explanation - If in the opinion of the Inquiring Authority theproceedings of the enquiry establish any article of chargedifferent from the original article of the charge, it may recordits findings on such article of charge; Provided that the findings on such article of charge shall not berecorded unless the Government servant has either admittedthat facts on which such article of charge is based or has beenafforded a reasonable opportunity of defending himself againstsuch article of charge.

(9.7) At the conclusion of the inquiry, the Inquiring Authorityshall prepare a report of the inquiry, recording its findings oneach of the charges together with reasons therefore.

(9.8) The record of the inquiry shall include

(i) the charges framed against the Government servantand the statement of allegations furnished to him undersub-rule (2)and the statement of allegations furnished to him undersub-rule (2)

(ii) his written statement of defence, if any;

(iii) the oral evidence taken in the course of the enquiry;

(iv) the documentary evidence considered in the course ofthe inquiry;the inquiry;

(v) the orders, if any, made by the Disciplinary Authorityand the Inquiring Authority in regard to the inquiry;andand the Inquiring Authority in regard to the inquiry;and

(vi) a report netting out the findings on each charge andthe reasons therefore.the reasons therefore.

(9.9) The Disciplinary Authority shall, if it is not the InquiringAuthority, consider the record of the inquiry and record its findings on each charge….”

21. It is obvious that the said procedure as prescribed in Rule 9(supra) has not been carried out in the case of the petitioner. Therefore,his termination from service has not only violated the related Rule 9 buthas also demonstrated that the principle of natural justice has not beenfollowed in his case.

22. On an overall analysis of the case of the parties, this Court isconvinced that the impugned order of termination has been passedarbitrarily and is therefore illegal. The same is, therefore, liable to bequashed which is done so herewith.

23. The prayer of the petitioner in this regard is allowed, the saidorder of termination dated 06.08.2021 is hereby set aside and quashedand the respondent authorities are directed to reinstate the petitioner inservice forthwith with all consequential financial benefits.

24. Petition disposed of. No costs.

Judge