Bom Bahadur Thapa (Ex-Security Guard) Son of Kul Bahadur Thapa Resident of Golf-link (near v. –
Case Details
IN THE HIGH COURT OF MEGHALAYA WP(C) No. 204 of 2011 Bom Bahadur Thapa (Ex-Security Guard) Son of Kul Bahadur Thapa Resident of Golf-link (near MPRO Qtr.) Shillong, East Khasi Hills District, Meghalaya - versus – …… Petitioner 1. The Meghalaya Tourism Development Corporation Ltd., MTDC, Polo Bazar Shillong East Khasi Hills District, Meghalaya. 2. Chairman MTDC, Shillong. 3. Managing Director of MTDC, Shillong 4. Officer-in-Charge, Orchid Lodge, New Tura, East Garo Hills. …… Respondents BEFORE THE HON’BLE MR JUSTICE SR SEN Advocate for the Petitioner Advocate for the Respondent Date of Hearing Date of Judgment and Order : : : :
Legal Reasoning
Mr. BK Deb Roy Mr. RB Pradhan 26.11.2013 02.12.13 JUDGMENT AND ORDER This instant writ petition is directed against the impugned orders dated 28.10.05 and 23.12.10. 2. The petitioner’s case in nut shell is that, “the petitioner was appointed as chowkidar at Barapani by the Managing Director, Meghalaya Tourism Development Corporation, Ltd., on 31.08.98 and subsequently transferred to Orchid Lodge, Tura as security guard. The petitioner has all along been discharging his duties faithfully and sincerely to the satisfaction of the superior officers without any complaint. The petitioner was placed WP(C) 204 of 2011 Page 1 of 5 under suspension w.e.f. 12.11.12 pending drawl of disciplinary proceeding by the Managing Director. Thereafter, the officer-in-charge of the Orchid Lodge, Tura issued charge-sheet to the petitioner on 18.11.02 without any statement of allegation asking for reply within 15 days as to why disciplinary action should not be taken against him in respect of following 5(five) charges: a) Celebrating Diwali on 4.11.02 by burning crackers inside the Tourist Lodge premises bring 5 to 6 outsiders. b) Drinking liquor inside the dormitory with them and giving food to the outsiders. c) Refuse customers/guests admissions on the plea of non- availability of accommodation. d) Right from his joining Tourist Lodge found in drunken state. e) Misappropriation of Rs, 4,055/-. 3. Neither any list of departmental witness and document by which the charges were to be proved was furnished. The petitioner denied the charges in his reply which were without any allegation and documentation proof and eye witnesses. The petitioner also denied the charges in his reply which were without any allegation and documentary proof and eye witness. 4. The Managing Director ordered any inquiry on 12.01.03 and appointed Inquiry Officer and Presenting Officer. The Inquiry Officer started inquiry by issuing notice to the petitioner on 14.01.03. Six numbers of departmental witnesses were examined at the back of the petitioner without giving opportunity to cross examine them. No witness from petitioner’s side was examined. 5. On receipt of the inquiry report submitted by the Inquiry Officer, the Disciplinary Authority, the Managing Director of the Corporation ordered on 31.11.03 that all the charges have been proved. The petitioner is not a fit person to be retained in service and accordingly imposed penalty of WP(C) 204 of 2011 Page 2 of 5 termination from service. On receipt of the order, the petitioner submitted a representation on 1.12.03 before the Managing Director praying for revocation of the order on the grounds stated therein. The Managing Director after consideration on humanitarian grounds reduced the punishment of termination from service to compulsory retirement with immediate effect. 6. Thereafter, the petitioner submitted an appeal to the Chairman of the Corporation on 14.10.05 for setting aside the penalty on the grounds stated therein. But the appeal was disposed of by the Managing Director on 28.10.05 stating that the appeal was without any merit and advised the petitioner to submit application for retirement. 7. On receipt of the aforesaid order date 28.10.05, the petitioner moved the Gauhati High Court vide writ petition No. 58 (SH) of 2007. The Hon’ble High Court after perusal vide order dated 18.10.10 observed that the Managing Director could not have considered the appeal against its own order, it can only be considered by his superior authority i.e. the Chairman of the Corporation who was directed to consider the representation of the petitioner dated 14.10.05 against his compulsory retirement from service and to take decision within a period of two months from the date of order. Thereafter, the Chairman of the Corporation on receipt of the High Court’s order dated 18.10.10 applied his mind to the case taking into account all factors and decided vide order dated 23.12.10 that the petitioner should be dismissed from service forthwith and the period of suspension is to be treated as dies non. 8. It will evident from the facts stated above, that the disciplinary proceeding was conducted without following the mandatory procedure laid down in Rule-9 of the Assam Service (Discipline and Appeals) Rule, 1964 and is liable to be set aside for violation of the principles of natural of justice for vitiating the entire disciplinary proceedings, hence, this instant writ petition.” WP(C) 204 of 2011 Page 3 of 5 9. Mr. BK Deb Roy, the learned counsel for the petitioner appeared for on behalf of the petitioner argued that, the charges were not framed as per the prescribed form available in Assam Service (Discipline and Appeals) Rule, 1964. Besides that, the charges were famed without any materials, so dismissal order passed against the petitioner may be dismissed. 10. In support of his submissions, the learned counsel relied on (1987) 2 GLR 210 Madhab Chandra Das vrs. the State of Assam & Ors. and (2005) 2 GLT 260 Bhajan Chandra Debanth vrs State of Tripura & Ors. 11. On the other hand Mr. RB Pradhan, the learned counsel appeared for on behalf of the respondent submitted that, the behaviour and conduct of the petitioner was volatile and against the interest of the establishment, as such the authorities concerned was compelled to dismiss him from service, though he was asked to go for voluntary retirement before dismissal. 12. After hearing the submission advanced by the learned counsel and after going through the charge-sheet as well as the other documents available on record it appears that, the petitioner used to drink during duty hours and used to create problem in the hotel/restaurant which is definitely against the interest of the customers as well as to the others who used to visit the restaurant. 13. I have gone through the charge-sheet and found that, it was in accordance with the prescribed form and also there were sufficient materials available to frame the charges against the petitioner. Therefore, I do not find anything wrong in the charge-sheet or in the proceeding as submitted by the learned counsel for the petitioner; hence, I am not inclined to interfere with the impugned order. However, I observe that the authorities WP(C) 204 of 2011 Page 4 of 5 concerned may instead of termination to consider the case of the petitioner for retirement. 14. With the above observations and directions, the instant
Decision
petition is disposed of. 15. No order as to cost. JUDGE V. Lyndem WP(C) 204 of 2011 Page 5 of 5