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GAUHATI HIGH COURT
R.S.Bindra, J.
Amul Roy Choudhury -Appellant
Versus
Chief Commissioner of Tripura -Respondent
Writ PetitionNo. 13 of 1964
Decided On : 07-03-1970
CONSTITUTIONAL LAW - ARTICLE 311 - TERMINATION OF SERVICE - DELAY IN FILING WRIT PETITION - LIMITATION - SUSPENSION OF LIMITATION - DISMISSAL OR REMOVAL FROM SERVICE - CONTRACTUAL TERMINATION - ARTICLE 311(2) - PROBATIONER - CONFIRMATION - RULES GOVERNING APPOINTMENT.
Fact of the Case:
The petitioner, a temporary Inspector in the Directorate of Food and Procurement, was arrested on a criminal charge and subsequently convicted. While in judicial custody, his services were terminated on one month's notice. After his conviction was set aside by the Supreme Court, he filed a writ petition challenging the termination of his services and the rejection of his representation for reinstatement.
Finding of the Court:
The court held that the termination of the petitioner's services was not a dismissal or removal from service within the meaning of Article 311(2) of the Constitution, but rather a termination in accordance with the terms of his contract of employment. The court also held that the petitioner's delay in filing the writ petition was unreasonable and that the period of limitation for challenging the termination of his services was not suspended during the pendency of the criminal proceedings against him.
Issues: 1. Whether the termination of the petitioner's services was a dismissal or removal from service within the meaning of Article 311(2) of the Constitution? 2. Whether the petitioner's delay in filing the writ petition was unreasonable? 3. Whether the period of limitation for challenging the termination of the petitioner's services was suspended during the pendency of the criminal proceedings against him?
Ratio Decidendi: 1. The court held that the termination of the petitioner's services was not a dismissal or removal from service within the meaning of Article 311(2) of the Constitution because: (a) the order terminating his services did not purport to be one of dismissal or removal; (b) the terms of the petitioner's contract of employment gave the Government the right to terminate his services on one month's notice; and (c) there was no evidence that the Government had any dishonest motive in terminating the petitioner's services. 2. The court held that the petitioner's delay in filing the writ petition was unreasonable because: (a) the petitioner had admitted that he could have filed a suit challenging the termination of his services within 6 years of the order; (b) the petitioner had not filed the writ petition until more than 4 years after the period of limitation for filing such a suit had run out; and (c) the petitioner had not provided any explanation for his delay. 3. The court held that the period of limitation for challenging the termination of the petitioner's services was not suspended during the pendency of the criminal proceedings against him because: (a) the order terminating his services had no nexus with the criminal charge against him; (b) the petitioner could have challenged the order immediately after it was passed; and (c) the maturing of the cause of action or the running of the period of limitation did not depend on the outcome of the criminal proceedings.
Final Decision: The court dismissed the writ petition on the grounds that: (a) the termination of the petitioner's services was not a dismissal or removal from service within the meaning of Article 311(2) of the Constitution; (b) the petitioner's delay in filing the writ petition was unreasonable; and (c) the period of limitation for challenging the termination of the petitioner's services was not suspended during the pendency of the criminal proceedings against him.
2. It is common ground between the parties that the petitioner was enrolled as Inspector in the Relief and Rehabilitation Department in October, 1955, and that he was subsequently transferred, in the same capacity, to the Directorate of Food and Procurement. In March, 1954, the petitioner was arrested on a charge under Section 420 read with Section 109 of the Indian Penal Code. While he was in judicial custody, he was firstly suspended from the service and then on 30th/31st of March, 1954, he was given one month's notice terminating his services. The petitioner was subsequently charge-sheeted and in course of time convicted by the trial Court. His appeal to the Sessions Judge, Agartala, and thereafter revision to the Judicial Commissioner's Court, Tripura, proved abortive. He did not lose heart and so went in appeal to the Supreme Court against the order made in revision by this Court. His appeal was accepted by the Supreme Court on 30th of October, 1962, and his conviction and sentence set aside.
On 21st of January, 1963, the petitioner moved the Administrator of Tripura with a prayer for his reinstatement on the basis that his conviction and sentence had been set aside by the Supreme Court The Additional District Magistrate (Food Section) informed the petitioner by a letter dated 21st of August, 1963, that his prayer for reinstatement had been rejected by the Administrator. It is the contention of the petitioner that the orders terminating his services and rejecting his representation are violative of the provisions of clauses (1) and (2) of Article 311 of the Constitution inasmuch as the order which purports to terminate his services is in fact an order dismissing him from service, that that order had been made without giving him an opportunity of making representation against the penalty proposed, and that that order had also been made by an authority subordinate to that by which he had been appointed. The prayers made in the petition were that the impugned orders should be quashed and the petitioner declared to be still in service of the Government of Tripura and entitled to the benefits of the arrears of full pay and allowances.
3. The respondents resisted the said prayers on divers grounds. Firstly, it was pleaded that the writ petition is liable to rejection because it had been filed after inordinate delay. It was pointedly emphasised that the services of the petitioner stood terminated with effect from 30th of April, 1954, whereas the writ petition was filed on as late as 20th of July, 1964. In the second instance, it was alleged that the petitioner had been guilty of suppressio veri for he had not stated in the petition that his appointment as Inspector in the Relief and Rehabilitation Department in October, 1950, was subject to the conditions that that appointment would not entitle him to claim a permanent post under the Government and that it would be terminable on one month's notice. It was asserted that the appointment given to the petitioner was of purely temporary character and so he had no right to cling to it. On merits, it was denied that the order terminating the petitioner's services was in substance an order dismissing him from employment. It was contended that that order was one made in terms of the contract of employment, that as such it does not fall within the ambit of clause (1) of Article 311, and that consequently there was nothing objectionable about it even if, as pleaded by the petitioner, it had been passed by an authority subordinate to the one
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