High Court
Case Details
WP(C) 4408/2012 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Mr. A. Sarma, learned counsel for the petitioner and Mr. U. K. Nai r, learned counsel appearing for respondent Nos. 3 and 4. Also heard Mr. J. Hand ique, learned Govt. Advocate appearing for respondent No. 1 and Mr. B. Gogoi, le arned Standing Counsel, Finance Department for respondent No. 2. By way of this petition under Article 226 of the Constitution of India, petitioner has challenged legality and validity of the order dated 30.04.2012 pa ssed by the Chief Judicial Magistrate, Dhemaji, discharging the petitioner from service. Case of the petitioner is that he was engaged as orderly Peon w.e.f. Apr il, 1987 in the office of the Sub-Divisional Judicial Magistrate, Barpeta, in wh ich capacity he worked till April, 1990. Thereafter, he worked as orderly Peon i n the establishment of Sub-Divisional Judicial Magistrate, Jonai till March, 199 2. From April 1992, petitioner worked as (cid:28)Night Chowkidar (cid:29) in the said establishmen t as temporary casual employee. By the impugned order dated 30.04.2012, petition er was discharged from his service. Aggrieved, petitioner has filed the present writ petition. Petitioner has contended that no notice or opportunity of hearing was gi ven to him before issuing the impugned order. Though he was on temporary employm ent, yet by virtue of his long uninterrupted service, he was entitled to atleast a notice before such discharge. This Court by order dated 04.02.2013, while issuing notice, observed tha t an endeavour would be made to dispose of the matter on the next date, fixing t oday for admission hearing. Respondent Nos. 3 & 4 have filed affidavit. Stand taken is that on accou nt of unsatisfactory service rendered by the petitioner, his service had to be d ischarged vide the impugned order which was in accordance with the order of appo intment. In paragraph-6 of the said affidavit, two instances have been narrated to high light the unsatisfactory nature of service rendered by the petitioner. P aragraph-6 reads as under:- (cid:28)That with regard to the statements made in paragraphs 12 and 13 of the Writ Petition, under reply, your deponent states that on 20.04.2012 a complaint was received against the petitioner from the Learned Sub-Divisional Judicial Mag istrate, Jonai, intimating about negligence of the petitioner in discharging of his duties since long and on 12.04.2012, the petitioner had negligently left the Court room without properly locking it. The same was informed by the Chowkidar of Sub-Divisional Officer (Civil), Jonai, on 14.04.2012 to GR Branch Assistant S ri B. Bhatta at about 9:00 AM while he was on way to market. Thereafter, Sri B. Bhatta informed the matter to the learned Sub-Divisional Judicial Magistrate at about 9:30 AM over telephone. Then the learned Sub-Divisional Judicial Magistrat e, Jonai called upon his Bench Assistant Sri Phulchand Pegu to his residence and asked him to enquire into the matter by going to Office and Court rooms. Sri Ph ulchand Pegu then and there visited the Court and office rooms where he found th at one of the doors of the Court room was found open and another was locked. The reafter, on being informed the learned Sub-Divisional Judicial Magistrate, Jonai , asked Sri Phulchand Pegu to search out the petitioner, but he was not availabl e at Jonai. So key could not be found to unlock the locked door. So finding no a ny other alternative, the learned Sub-Divisional Judicial Magistrate, Jonai orde red to break the lock fixed on the door and to fix a new lock. Therefore, at abo ut 12:00 Noon while police produced an accused, then also another lock was to be broken (Office room of GR Branch) for said petitioner’s negligence, a new lock has been purchased and locked again. The petitioner thereafter remained absent w ithout authority. It is stated that the services of the petitioner having been d ischarged on the ground of unsatisfactory service, which in terms of the prescri ption made in his order of appointment, the provisions of Article 311 of the Con stitution of India has no application in the present case. (cid:29) Learned counsel for the petitioner submits that the grounds given for di scharge of the petitioner are wholly incorrect and are disputed by the petitione r. He submits that the reasons for discharge of the petitioner as disclosed in t he affidavit amounts to casting aspersions on the ability and competence of the petitioner and, therefore, petitioner ought to have been put on notice before is suance of the impugned order. In any case, considering the long service period o f the petitioner, even though he was on temporary employment, minimum requiremen ts of the principles of natural justice could not have been discarded by the res pondents. In this connection, learned counsel for the petitioner refers to a de cision of the Hon’ble Supreme Court in the case of Nar Singh Pal Vs. Union of In dia and Ors. reported in (2000) 3 SCC 588. Mr. Nair, learned counsel appearing for respondent Nos. 3 & 4 fairly submits tha t considering the peculiar facts and circumstances of the case, the petitioner m ay submit a representation before the respondent No. 3 for reconsideration of th e discharge order which will be duly considered by the said authority. Submissions made have been considered. It is no doubt true that the petitioner is on temporary employment under the respondent No. 3. However, the fact still remains that he is under such em ployment for more than 25 years now. Moreover, in view of the grounds given in t he affidavit for discharge of the petitioner, the impugned order cannot be said to be a discharge simpliciter. Accordingly, the Court is of the view that the petitioner should have be en afforded a reasonable opportunity of hearing before his discharge. In view of above, it is hereby provided that the petitioner should submi t a representation before the respondent No. 3 within a period of 2 (two) weeks’ from today for reconsideration of the discharge order dated 30th April, 2012. I n the event such a representation is submitted within the period specified, resp ondent No. 3 may consider passing appropriate order, keeping in mind the long pe riod of service rendered by the petitioner. Petitioner shall also give an undertaking before the respondent No. 3 th at henceforth he shall be diligent in the discharge of his duties. Respondent No . 3 shall pass the necessary order(s) within a period of 2 (two) months from the date of receipt of the representation.