High Court
Case Details
WP(C) 5491/2007 BEFORE HON’BLE MR JUSTICE T.VAIPHEI Both Mr. J. Chutia, learned counsel appearing for the petitioner and Mr. N. Baru a, learned SC, CGC for the respondents are heard at length. Aggrieved by the ord er dated 14.09.2007, passed by the respondent No.3, who is the Inspector General , ,Border Security Force, H.Q., M & C Ftr. Masimpur, Silchar, Assam, the petitio ner is filing this writ petition for appropriate relief. The petitioner was admi ttedly rendering service as Mid-Wife, Frontier Hospital, Ftr. HQ BSF M & C, Masi mpur, Silchar, Assam till the issuance of the impugned order. While admitting th e writ petition, this Court by an order dated 16.11.2007 passed the following or ders:- (cid:28)The service of the petitioner has been terminated by the impugned order dated 1 4.9.2007. The petitioner admittedly rendered service since the year 1982. The or der dated 14.9.2007 goes to show that the reason for termination of the petition er’s service is on account of her poor performance of duties. If that be so, cer tainly the termination should have been preceded by an enquiry giving the petiti oner reasonable opportunity. As the same has not been done, the Court is of the view that further operation of the impugned order dated 14.9.2007 should be sta yed and the petitioner should be allowed to continue in service.
Legal Reasoning
In the event the termination has been given effect to, having regard to the facts of the case, the Court is of the view that the petitioner should be re -inducted in to service and allowed to continue until further orders of the Cour t (cid:29) 2. The respondents thereafter filed a Misc Case being Misc Case No.1768/2008 for vacation of the aforesaid interim order. This Court by an order dated 25.06.2008 dismissed the Misc Case with the following orders:-
Legal Reasoning
Heard Mr. S. Chakraborty, learned counsel appearing for the applicants / (cid:28) respondents in the writ petition and Mr.N.J.Dutta, learned counsel for the O.P./ writ petitioner. This Miscellaneous application has been filed seeking vacation/modificat ion/alteration of the interim order dated 16.11.2007 passed by the court. By th e aforesaid order this court had stayed further operation of the order dated 14. 9.2007 by which the service of the petitioner as a mid-wife has been terminated. In the miscellaneous application it has been asserted by the applicants that the post of mid-wife in which the petitioner is engaged is not a post gover ned by the BSF Act. Salary against the said post, according to the applicants/re spondents, is paid from the special relief fund which is a purely private fund a ccumulated by way of contributions from the members of the Force. A reading of the impugned order dated 14.9.2007 and the proceedings of t he Board dated 7.8.2007 which had preceded the impugned order would go to show t hat the sole ground for dispensing with the petitioner’s service is her alleged non-performance. The petitioner has been working as a mid-wife since the year 19 82 and starting with her initial salary of Rs. 300/- per month she is stated to be drawing a salary of Rs.4,500/-, as on date. In the aforesaid circumstances, t he court is of the view that if non-performance was the sole reason for the term ination of the petitioner’s service the petitioner should have been afforded wit h a prior opportunity. In so far as the contention of the applicants that the post in question is not under the BSF and salary is paid out of the contributions made by the mem bers of the Force it will be suffice to notice at this stage that the disciplina ry control in respect of the said post is vested in the authorities of the Force , a fact evident from the proceedings of the Board dated 7.8.2007( Annexure C to the counter affidavit of the respondents). In the aforesaid facts the court is of the view that the present will no t be a fit case for vacation/modification/alteration of the interim order of thi s Court dated 16.11.2007. Misc Case is accordingly dismissed (cid:29). 3. Though the order extracted above was passed about 5 years back, the same has not been challenged in an appeal by the respondent authorities. The refore, the findings made by this court therein had virtually attained finality. Mr. N. Barua, learned CGC, , however, referring to the affidavit-in-opposition filed by the respondents submits that the petitioner was appointed on the basis of a consolidated pay of Rs.300/- p.m. which was enhanced by this time, whose se rvices were to be treated as temporary and might be terminated at any time and, therefore, the petitioner has no right to claim permanency for regularization of her post. Drawing my attention to the Special Relief Fund Rules (Annexure-B to the affidavit-in-opposition) submits that the post held by the petitioner is not a sanctioned post and her salary was paid out of the Special Relief Fund i.e. p rivate fund of the BSF and not from the Government fund. He, therefore, submits that as the petitioner has no legal right to claim continuation in the aforesaid post or to claim regularization of her services, she is not entitled to a writ of mandamus. On the other hand, the learned counsel for the petitioner mainta 4. ins that the impugned letter/order is malafide and ex-facie in retaliation to her claim for regularization of her services. According to the learned counsel, the petitioner was appointed as early as 1982 and her performances were always found to be highly satisfactory but for which she would not have been allowed to continue for the next 15 years. The learned counsel for the petitioner has draw n my attention to Para-5 of the Board proceedings dated 7.8.07 (Annexure C to th e petition), which says that, in case no suitable widow comes forward, a candida te from outside may be appointed keeping in view of requirement of the hospital and submits that this clearly demonstrates the need for retention of the post on a permanent basis. He, therefore, strenuously urges this Court to direct th e respondents to consider the case of the petitioner for regularization of her service in the post of Mid-Wife at the Unit Hospital, Border Security Force, Mas impur. 5. I have carefully gone through the pleadings of the parties as we ll as the materials produced by them in support of their respective pleadings. I have also given my anxious consideration to the submissions made by the learne d counsel for the parties. As already noticed, that this court by the interim or der dated 25.06.2008 passed in Misc Case No.1768/2008 had stayed the impugned t ermination order and allowed the petitioner to continue in service until furthe r orders. By virtue of that order, the petitioner is still continuing in her pos t. As the remarks made in the impugned termination order are stigmatic in nature , termination of the service of the petitioner cannot be made without observance of the principles of natural justice. The respondent authorities after allowin g the petitioner to continue in service for 15 years, cannot simply remove her from service without complying with the procedure laid down under the proviso t o Article 311(2) of the Constitution. Under the circumstances, the impugned ter mination order cannot be sustained in law. The need of retaining the post of Mid -Wife in the hospital in question is still there as evident from the proceeding of the Board, which is Annexure-C to the affidavit-in-opposition filed by the r espondents.
Decision
Under the circumstances, this writ petition is disposed of by di 6. recting the respondents to consider the case of the petitioner for regularizatio n of her service as mid-wife in the concerned hospital in accordance with law an d take an appropriate decision thereon as early as possible.