Shri. Dinpingmak v. The State of Nagaland & Ors.

HON’BLE MR. JUSTICE KARDAK ETE Advocate for the petitioners : Mr. P. B. Paul Advocate for the Respondents : Ms. A. Ayemi, (G.A) Date of Hearing : 27.02.2025 Date of Judgment : 27.02.2025 JUDGMENT & ORDER (Oral) Heard Mr. P. B. Paul, learned counsel for the petitioners. Also heard Ms. A. Ayemi, learned State Counsel for the respondents.

2. Challenge made in this writ petition is to the termination Order No.PRN/REV-27/GB APPT/TNG C-4/21 S/21/907 dated 03.12.2021 passed by the Deputy Commissioner, Peren district, whereby, the petitioners as Gaonburas of Tepun village have been terminated on the grounds of misconduct and contempt of Government authority.

3. Briefly put, the facts of the petitioners are that they were appointed as Gaonburas of Tepun village under Peren district, Nagaland vide order Page No.# 3/12 dated 28.03.2003, 25.03.2009 and 20.11.2014 respectively. While they were discharging their respective duties as Gaonburas of Tepun village, on

11.08.2021, a complaint was filed by the Head Gaon Burah and 8 other persons of Tepun village before the Addl. Deputy Commissioner, Tening, alleging that the petitioners have sought the intervention of the Underground Groups which is against the State Government and violation of laid down Rules. Upon receipt of the said complain an explanation were sought from the petitioners vide letter dated 11.08.2021 by the Additional Deputy Commissioner, Tening and directed to appear in person. Pursuant thereto, the petitioners appeared before the Extra Assistant Commissioner, Tening on 16.08.2021 as directed. The Extra Assistant Commissioner, Tening has conducted an enquiry in the presence of Dobashis against the petitioners by providing an opportunity of hearing.

4. Thereafter, a report was prepared on the same day with a finding of an attempt to sabotage and undermine the established State Government which also reflects their infidelity to the State and the Union of India by legitimizing an organisation that has no locus standi in the Nagaland Village Council Act, 1978. The report indicates that the three petitioners have admitted to have written to the Central Administrative Officer, Makuilongdi Region, NSCN/GPRN to intervene in matter of selection of Tepun Village Council for rectification of the directives of the Government of Nagaland, alleging impending danger of lawlessness in the village. In response, a Directive Order dated 09.08.2021 was issued by the NSCN Executive Steering Member, with a copy endorsed to the Deputy Commissioner, Peren and ADC, Tening. The petitioners were provided an opportunity to explain which according to the report, the explanation Page No.# 4/12 found unsatisfactory. It also provides that the act of the petitioners not only represents an attempt to sabotage and undermine the established State Government, but, it also represents their act of misconduct of their duty against the State and the Union of India.

5. The Additional Deputy Commissioner has recommended and forwarded the report to the Deputy Commissioner, Peren district for initiating disciplinary action against the three petitioners. On receipt of the said report, the Deputy Commissioner of Peren district has forwarded the same to the Commissioner of Home, Government of Nagaland, recommending disciplinary action against the three petitioners of misconduct and contempt of Government authority. The Commissioner Home, Government of Nagaland has approved and the same was conveyed by the Additional Deputy Commissioner (HQ) office of the Commissioner vide letter dated 26.11.2021, for termination of the petitioners, on the grounds of misconduct and contempt of Government authority. Accordingly, the Deputy Commissioner, Peren district vide impugned order dated 03.12.2021 has terminated the petitioners as Gaonburas of Tepun village on the grounds of misconduct and contempt of Government authority with immediate effect, Hence, this writ petition.

6. Mr. P.B. Paul, learned counsel for the petitioners submits that the post of Gaonburas is a civil post, therefore, requirement of procedure enshrined under Article 311 of the Constitution of India, ought to have been followed. In the present case, no proceedings have been conducted except the explanation sought from the Additional Deputy Commissioner. The basis of termination is the report of the Extra Assistant Commissioner, wherein, the petitioners were only asked for explanation. The enquiry Page No.# 5/12 conducted by the respondent authorities is without providing an opportunity of hearing, even after an enquiry no charges were framed as required to be done under the law. Therefore, Mr. Paul, learned counsel, submits that the impugned termination order dated 03.12.2021 is not sustainable and may be set aside and quashed. Mr. P.B. Paul, learned counsel for the petitioners has placed reliance on the judgment of Hon’ble Supreme Court in the case of Kandarpa Sarma Vs. Rajeswar Das and Ors. reported in (2011) 14 SCC 752, in support of his submissions.

7. Ms. A. Ayemi, learned State Counsel for the respondents submits that a complaint was received from the Head Gaonburas along with eight others of Tepun village addressed to the Additional Deputy Commissioner, Tening, alleging that the petitioners have colluded with NSCN/GPRN to sabotage the process of legally constituted village council by the Government. On receipt of such complaint, an explanation was called for to the petitioners vide letter dated 11.08.2021. The petitioners have appeared on 16.08.2021. The authority has conducted the enquiry by providing an opportunity to the petitioners before the Dobashis and only on being admitted by the petitioners to have communicated with the Central Administrative Officer, Makuilongdi Region, NSCN/GPRN for interfering into the matter regarding the village Council against the action of the Government, a report was prepared, which was forwarded to the Deputy Commissioner, Peren district vide letter dated 09.09.2021 stating that the complaint letter against the petitioners were thoroughly verified and after hearing the petitioners, it is found to be true as the petitioners have admitted to have written letter to the NSCN/GPRN Makuilongdi Region, seeking intervention in the matter for which no further enquiry Page No.# 6/12 was required, which clearly reflects sufficient ground for initiation of disciplinary action against the petitioners.

8. Ms. A. Ayemi, learned State Counsel submits that Gaonburas are appointed by the Government of Nagaland and enjoy all benefits as provided by the Government and any grievances relating to decision or order of the Government should be addressed to the Government and not to others. In the present case, the petitioners had admitted of their attempt to colluded with NSCN/GPRN to undermine the authority of the Government by writing a letter to intervene the matter of selection and election of Tepun village council to sabotage the directives of the Government of Nagaland, alleging impending danger of lawlessness in the village. On such letter, a directive order was issued on 09.08.2021 by the NSCN, Executive Steering Member with a copy endorsed to the Deputy Commissioner, Peren and ADC, Tening. Therefore, the actions of the petitioners amounts to misconduct being the Government appointed Gaonburas which warrants serious disciplinary action against the petitioners.

9. Ms. A. Ayemi, learned State Counsel submits that the petitioners were provided an opportunity of fair hearing after being called for an explanation in person vide letter dated 11.08.2021, which is akin to be show-cause notice. The petitioners were heard on 16.08.2021 by the Extra Assistant Commissioner, Tening in the present of Dobashis. Therefore, no question of not providing an opportunity of hearing arises, as the petitioners were afforded fair hearing. The authority in compliance of the Notification dated 24.03.2017 has recommended for initiation of disciplinary action before the appropriate authority i.e. Commissioner of Page No.# 7/12 Home, Government of Nagaland, on the basis of the enquiry which was fairly conducted by providing an opportunity to the petitioners. The Commissioner of Home, Government of Nagaland has approved the same. Accordingly, the petitioners were issued the impugned termination orders terminating the services as Gaonburahs on the established grounds of misconduct and contempt of the Government authority. Therefore, the writ petition may be dismissed being devoid of merit.

10. I have considered the submissions of the learned counsel for the parties and perused the materials available on record.

11. Admittedly, the petitioners were appointed as Gaonburahs of Tepun village. While, they were serving in the said capacities, a complaint against the petitioners was received from the Head Gaonburahs and 8 (eight) other persons of Tepun village by the Additional Deputy Commissioner, Tening, seeking legal action against the petitioners alleging that on 17.06.2021, the petitioners have sought the intervention of the Underground Group in respect of settlement of Tepun village council, which is against the laid down rules and against the State Government and the Administrative Head in the district. The petitioners were issued and served with a letter on 11.08.2021 calling for explanation by the Additional Deputy Commissioner.

12. Record reveals that on 16.08.2021, an enquiry was conducted by the Assistant Commissioner, Tening, in the presence of Dobashis of the area. It appears that the petitioners were heard by providing fair hearing and accordingly, report was prepared on the same day. As per the report of the Extra Assistant Commissioner dated 16.08.2021, it reflects that the Page No.# 8/12 petitioners have admitted to have written to the Central Administrative Officer, Makuilongdi Region NSCN/GPRN to intervene the matter of selection of Tepun village council alleging impending danger of lawlessness in the village. On such letter by the petitioners, a directive order dated 09.08.2021 was issued by the Executive Steering Member, NSCN with a copy to the Deputy Commissioner and Additional Deputy Commissioner, Peren district.

13. Having found the explanation of the petitioners to be unsatisfactory and also in view of the fact that the petitioners have admitted to have written a letter to the Central Administrative Officer, Makuilongdi Region NSCN/GPRN, a report was prepared suggesting for strict disciplinary action of exemplary proportion against the petitioners.

14. The Additional Deputy Commissioner, on receipt of the report vide letter dated 09.09.2021 submitted the same before the Deputy Commissioner, Peren district, inter-alia stating that the complaint letter against the petitioners have been verified to be true, having admitted by the petitioners and requires no further enquiry. Such act of the Government appointed GBs warrants strict disciplinary action for utter contempt of Government authority. Therefore, the matter was forwarded for initiating exemplary disciplinary action against the petitioners. The Deputy Commissioner in its turn has forwarded and recommended to the Commissioner of Home, Government of Nagaland, for removal/termination of the petitioners from their services as Gaonburahs on the grounds of misconduct and contempt of Government authority. Accordingly, on approval by the competent authority, the petitioners have been terminated as Gaonburahs of Tepun village vide impugned order dated 03.12.2021. Page No.# 9/12

15. It is seen from the records that the allegation against the petitioners of having written a letter to the Central Administrative Officer, Makuilongdi Region NSCN/GPRN seeking intervention in the matter of settlement of Tepun village council appears to have been admitted by the petitioners.

16. As noted above, upon receipt of the complaint by the Head Gaonburahs and eight other persons of Tepun village, an explanation was called from the petitioners. The petitioners were provided fair hearing before the Dobashis of the area, wherein, the petitioners have admitted the allegations. The petitioners as a Gaonburahs of the village appointed by the State Government ought to have refrained from indulging such activities. In my view, such conduct/action on the part of the petitioners amounts to misconduct.

17. It is true that the Hon’ble Supreme Court has held that the Gaonburah is an Executive Post and holds the civil post and therefore, the petitioners may be entitled to the protection as provided for under Article 311 of the Constitution. However, in the facts and circumstances of the present case, in my considered view, even if further proceedings against the petitioners were to be initiated in terms of the protection provide under Article 311, no difference of its outcome would have been there in view of the fact that the petitioners have seen to have been admitted the allegations against them.

18. In the case of Kandarpa Sarma (supra), the Hon’ble Supreme Court while dealing with the appointment of Gaonburah in the State of Assam has held that the post of Gaonburah is an Executive post and he holds a civil post and therefore, he is entitled to the protection provided under the Page No.# 10/12 Article 311 of the Constitution. Having found that there is no service conditions governing the service of Gaonburahs in that case, the State Government was directed to frame the service conditions of the Gaonburahs, keeping in view that under the Executive instruction sufficient safeguards were not provided to deal with the same. The observation of the Hon’ble Supreme Court is reproduced herein below:- “12. The post of Gaonburah is an executive post in the sense that he works under the supervision of the Moujadar. He holds a civil post and, therefore, is entitled to the protection as provided for under Article 311 of the Constitution of India. In that view of the matter, there has to be some service conditions governing his service. A Government Servant who is usually appointed to a civil post has to have minimum age requirement for appointment and there is always a maximum age on completion of which he stands retired from the government service. He has other service conditions also prescribed for his service and status. However, on going through the Executive Instructions, we do not find any such terms and conditions of service envisaged and laid down which would govern his service condition.

13. A government servant cannot be appointed unless he fulfils a minimum age criteria. He should not also be allowed to continue to work as Gaonburah in perpetuity. There has to be some age limit or duration of period for his service on completion of which he should stand relieved. The other service conditions like the reasons for removal of the Gaonburah are also required to be clearly stated by the State Government either in the executive instruction or by framing a separate set of rules. Since all these fall within the domain of the State Government, we request and leave it to the State Government to frame such service conditions of the Gaonburahs as expeditiously as possible preferably within a period of three months from today keeping in view Page No.# 11/12 the observation made hereinbefore.”

19. Perusal of the above case, shows that the issue in that case was for appointment of Gaonburas in the State of Assam, whereby, the claim was preferential treatment being nephew of the former Gaonburas, in terms of the Executive Instruction. The Hon’ble Supreme Court has held that the post of Gaonbura as an Executive Post holding a Civil Post, which entitled a protection under Article 311 of the Constitution. Therefore, there cannot be any quarrel to the principle of law enunciated by the Hon’ble Supreme Court. The present case is totally distinct and different from the above case in facts and law and the same is clearly distinguishable.

20. In the present case, the authorities have provided not only an opportunity but fair opportunity to the petitioners while conducting enquiry which, in my view, is in compliance of the fair hearing and the protection provided under the law. The petitioners have participated in the proceedings wherein, they appears to have admitted the allegations which clearly establish the misconduct on the part of the petitioners.

21. Having considered above, I am of the view that no further proceedings would have been required as the petitioners have been provided a fair hearing. The well established procedure appears to have duly been adhered to by the respondent authorities as the proper enquiry was conducted and the approval of the competent authority for passing the impugned order was obtained. Thus, I am of the view that no further proceedings are required to be taken and no protection is required to be extended to the petitioners in the facts and circumstances of the present case, as the petitioners were given a fair and adequate opportunity of hearing. Page No.# 12/12

22. In view of the discussion made herein above and in the facts and circumstances of the present case, I find no infirmity in the proceedings initiated against the petitioners by the respondent authorities and thus, the impugned termination order dated 03.12.2021 passed by the Deputy Commissioner, Peren district, warrants no interference.

23. In the result, the writ petition stands dismissed being devoid of merit. No order as to costs. JUDGE Comparing Assistant