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2007 Supreme(Gau) 75
IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Chandradhar Das
Vs.
Assam Backward Classes Commission and Ors.
Decided On: 19.01.2007
Important Points
Subject
Employment Law - Termination of Service
Headnote
Discharge - Service Discharge - Assam Backward Classes Commission Act, 1993 - Section 3(2)(d), Section 4(3), Section 5(1) and (2), Section 16 - The judgment discusses the petitioner's appointment as a Peon and subsequent discharge as a Driver in the Assam Backward Classes Commission. It highlights the provisions of the Assam Backward Classes Commission Act, 1993, and the interpretation of the petitioner's service status, the grounds for discharge, and the legal implications of the termination.
Fact of the Case:
The petitioner was initially appointed as a Peon and later as a Driver in the Assam Backward Classes Commission. After being placed under suspension and filing a writ petition, the petitioner was discharged from service without notice or reason. The respondents contended that the petitioner's appointment was temporary and subject to discharge without notice.
Finding of the Court:
The court found that the petitioner's service was substantive and not temporary, and his discharge was based on serious allegations without following due procedure. The court also noted that the post held by the petitioner was surrendered by the Commission after his termination, but it could be revived upon his reinstatement.
Issues: The issues included the nature of the petitioner's appointment, the validity of the discharge, and the availability of the post after the petitioner's termination.
Ratio Decidendi: The court held that the petitioner's service could not have been dispensed with without following due procedure and that the order of termination was stigmatic. It also emphasized that the post surrendered by the Commission could be revived upon the petitioner's reinstatement.
Final Decision: The court set aside the order of discharge and directed the reinstatement of the petitioner in service with 50% back wages. It also provided the option for the Government to accommodate the petitioner in the department itself if the Commission was reluctant to reinstate him.
B.K. Sharma, J.
1. The petitioner, who was first appointed as a Peon and thereafter as a Driver in Assam Backward Classes Commission is aggrieved by the order of discharge from service.
2. The petitioner was first appointed on daily wage basis with effect from 5.8.1994 by order dated 23.8.1994 issued by the Member Secretary, Assam Backward Classes Commission. Such appointment of the petitioner was followed by regular selection held for the post of Grade-IV. The interview was conducted on 25.8.1994. After the initial appointment on daily wage basis, the petitioner was appointed in regular time scale of pay of Rs. 900 to 1435 per month by order dated 31.8.1994 issued under the signature of the Principal Secretary of the Commission. Such appointment of the petitioner was made for a period of two months with the stipulation that the final appointment would be considered after receipt of the police verification report. His appointment was further continued for another period of two months by order dated 31.10.1994 with the same stipulation. Thereafter, he was given regular appointment on receipt of satisfactory police verification report. The appointment was in the office of the Commission by order dated 31.12.1994.
3. While the petitioner was continued in the capacity of Peon in the office of the Commission, he was engaged in the post of Driver in the Commission by order dated 28.2.1995. While the petitioner was continued as such, he was placed under suspension by order dated 1.9.2003 pending drawal of departmental proceeding. He had the occasion to approach this court by filing the writ petition being W.P. (C) No. 6883/2004 when the order of suspension was not revoked and no departmental proceeding was initiated. The writ petition was disposed of providing that the petitioner would prefer departmental appeal against the order of suspension and the appellate authority would dispose of the same in accordance with rules. In the writ petition, it was also the grievance of the petitioner that he was not paid the subsistence allowance.
4. After the aforesaid order passed by this court, the petitioner preferred appeal against the order of suspension for payment of subsistence allowance. The appeal was preferred on 22.9.2004. In response to the appeal filed by the petitioner, the Administrative Officer of the Commission intimated the petitioner that he has been discharged from service by order dated 13.9.2004 and the copy of the same was endorsed to the petitioner by letter dated 28,9.2004. The order dated 13.9.2004 by which the petitioner has been discharged from service reads as follows:
No. APC/Per/34/94/25 Dated Guwahati the 13th Sept., 2004
OFFICE ORDER
Shri Chandradhar Das, a personal staff of the Chairperson, Assam Backward Classes Commission, who was temporarily appointed as driver subject to discharge without notice and without assigning any reason thereof vide office order No. ABC/Estt./16/94/95-D dated 28.2.1995, is now hereby discharged from service with effect from this day the 13th September, 2004.
He is entitled to receive his arrear subsistence allowances for the months from March 2004 till 12th September, 2004 excluding two (2) days subsistence allowances, i.e., on 21.3.2004 and 5.4.2004.
This order is in concurrence to the order dated 13.9.2004 passed by the hon'ble Chairperson, Assam Backward Classes Commission.
Sd/-
Administrative Officer,
Assam Backward Classes Commission,
Guwahati-5.
5. Being aggrieved by the aforesaid order dated 13.9.2004, the petitioner preferred appeal to the Government in the Department of Welfare of Plains Tribes and Backward Classes. The appeal was preferred (Annexure-9 to the writ petition) and having not received any response from the Government, the petitioner invoked the writ jurisdiction of this court. However, the Administrative Officer of the Commission had intimated the petitioner by letter dated 19.11.2004 that his appeal cannot be entertained by the Commission as the same does not lie to
