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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SUMAN SHYAM, J.
Shri Hiramohan Doley - Petitioner
Versus
The State of Assam 4 others – Respondents
WP(C) No.2493 of 2016
Decided On : 13-02-2017
Constitution of India , 1950 - Article 14 - Assam Municipal Act, 1956 - Section 50 - Assam Municipality Act, 1960 – Employ and service matter - Post of electrician - Dismissal from Service - Challenge - Temporarily appointed as an electrician in office of respondent No.4 - Thereafter, his services were regularized in said post in year- While serving as an electrician under Town Committee, petitioner suddenly fell ill as a result of which he could not attend his duties from as he was under medical advice to be on rest during that period - After recovering from his ailments when petitioner reported back for duty on, he was not allowed to join and instead was served with a show cause notice dated issued by respondent No.3 asking petitioner to show cause within three days explaining his unauthorized absence - While denying receipt of show cause reply dated submitted by petitioner, respondents had also disputed his claim of regularization in service - After hearing learned counsel for the parties, this Court had disposed of writ petition by order dated by issuing - Respondent Nos. 3 and 4 are directed to take a decision on show cause reply submitted by petitioner, which has been annexed to writ petition, after giving due opportunity of hearing to petitioner - Respondents shall also take a decision regarding service status of petitioner from onwards - Let both decisions be taken within a period of 4 (four) weeks from date of receipt of a certified copy of this order keeping in mind observations made above – Held, Charge therefore will have to be specific clear and unambiguous - If disciplinary authority decides to hold disciplinary proceeding against a delinquent employee first and foremost requirement would be to frame definite charges against him capable of being understood and replied by delinquent employee - Reply submitted by delinquent to charge framed would have to be considered by the disciplinary authority - If reply is found to be satisfactory the matter can be dropped at that stage itself - Enquiry proceedings and specific findings are required to be recorded as regards charges framed - Copy of enquiry report is required to be given to delinquent employee prior to decision of disciplinary authority either to accept enquiry report or not to accept report i.e., before deciding on the guilt or otherwise of delinquent employee - If delinquent employee submits his representation on enquiry report same is required to be considered by the disciplinary authority together with record of enquiry and thereafter to take a decision either to hold delinquent employee guilty or not guilty - Respondents appear to have proceeded with the decision to terminate services of petitioner in pre-determined manner and without holding any disciplinary enquiry on ground that his services were not regularized. Assuming that the services of petitioner was not regularized, even in that case requirement of adopting a fair procedure in compliance with principles of natural justice cannot be dispensed with even in case of a temporary employee - Writ petition stands allowed
1. Heard Mr. B. K. Singh, learned counsel for the petitioner. Also heard Smti. M. Bhattacharjee, learned Government Advocate, Assam, appearing for the respondent Nos.1 and 2. None appears for respondent Nos. 3 and 4 though served.
2. The writ petitioner has approached this Court for the second time assailing the decision taken by the Dhemaji Town Committee releasing him from duty with retrospective effect without following the due procedure of law.
3. The petitioner’s case, in brief, is that he was initially temporarily appointed as an electrician in the office of the respondent No.4 on 27.09.1985. Thereafter, his services were regularized in the said post in the year 1988. While serving as an electrician under the Demaji Town Committee, the petitioner suddenly fell ill as a result of which he could not attend his duties from 29.08.2012 till 10.10.2012 as he was under medical advice to be on rest during that period. After recovering from his ailments, when the petitioner reported back for duty on 11.10.2012, he was not allowed to join and instead was served with a show cause notice dated 03.10.2012 issued by the respondent No.3 asking the petitioner to show cause within three days explaining his unauthorized absence. The petitioner had submitted his reply on 06.10.2012 stating the reasons for his absence but notwithstanding the same the respondent authorities refused to allow the petitioner to join his duties as a result of which the petitioner was compelled to approach this Court by filing WP(C) No.4439/2014.
4. The respondent nos. 3 and 4 had contested the said writ petition filed by the petitioner. While denying the receipt of the show cause reply dated 06.10.2012 submitted by the petitioner, the respondents had also disputed his claim of regularization in service. After hearing the learned counsel for the parties, this Court had disposed of the writ petition bearing No. WP(C) 4439/2014 by the order dated 30.11.2015 by issuing the following directions :-
“8. Having regard to the above, respondent Nos. 3 and 4 are directed to take a decision on the show cause reply submitted by the petitioner, which has been annexed to the writ petition, after giving due opportunity of hearing to the petitioner. The said respondents shall also take a decision regarding the service status of the petitioner from 29.08.2012 onwards. Let both the decisions be taken within a period of 4 (four) weeks from the date of receipt of a certified copy of this order keeping in mind the observations made above.”
5. Enclosing a copy of the order dated 30.11.2015 passed by this Court the petitioner had submitted another representation dated 26.12.2015 giving further explanations for his absence from duty. However, notwithstanding the show cause reply as well as the representation dated 26.121.2015 filed by the petitioner, the respondent No.4 had passed the impugned order dated 20.01.2016 releasing the petitioner from the post of electrician with effect from 29.08.2012 i.e. from the date he had remained absent from duty. The operative part of the order dated 20.01.2016 is extracted herein below for ready reference :-
“That, till date the Govt. has not made any provision for regular post/service in the Town Committees.
Hence, the question of regularization of your post service does not arise. On the other hand, the Town Committee has proof that in earlier occasion too you remained absent from your duties neglecting your duties and consequently it has come to notice that the residents of the town criticized the Municipality electricity/power was not supplied regularly. Considering the above mentioned aspects, on the basis of the decision of Executive Meeting dated 12.01.16 of the Town Committee and as your service is temporary it is unanimously decided to release you from the post of temporary electrician with effect from 29.08.12 i.e. the date from which you remained absent. Sd/- Illegible President, Dhemaji Town Committee Dhemaji Memo No.DTC/A-1/
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