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2016 Supreme(Megh) 112
IN THE HIGH COURT OF MEGHALAYA
VED PRAKASH VAISH, J.
Shri Sophior Lyngdoh Nongrang - Appellant
Versus
State of Meghalaya - Respondent
WP(C) No. 82 of 2015
Decided On : 09-11-2016
Advocate Appeared:
For the Appellant :Mr. P.N. Nongbri, Advocate
For the Respondent:Mr. S. Sen Gupta, Advocate
The right to livelihood under Article 21 of the Constitution includes the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair, and reasonable procedure. Fair play and compliance with natural justice principles are required before terminating an employee's service.
Headnote:
Regularisation - Service Termination - IPC 506, IT Act 66A(b)(c) - Delhi Transport Corporation v. D.T.C. Mazdoor Congress, Shiv Nandan Mahto v. State of Bihar, Secy., State of Karnataka & Ors. v. Umadevi - (1991) Suppl. 1 SCC 600, (2013) 11 SCC 626, (2006) 4 SCC 1 - The court discussed the regularisation of the petitioner's service, the legality of the termination, and the principles of natural justice. It highlighted the right to livelihood under Article 21 of the Constitution, the need for fair play and compliance with natural justice principles before terminating an employee's service, and the entitlement to full back wages if the termination is found to be void ab initio.
Fact of the Case:
The petitioner seeks quashing of an office order cancelling his regularisation and direction for reinstatement and subsistence allowance payment. The petitioner was initially appointed on a work charge basis and later brought temporarily under regular cadre. After being arrested in a criminal case, the petitioner was not allowed to resume duty and his regularisation order was cancelled.
Finding of the Court:
The court found that the petitioner's services could not be terminated without following due process of law. It emphasized the right to livelihood under Article 21 of the Constitution and the need for fair play and compliance with natural justice principles before terminating an employee's service. The court allowed the petition, directed the petitioner to join the service, and ordered the respondents to pay 50% of back wages within three months.
Issues: The issues included the legality of the termination, the regularisation of the petitioner's service, and the entitlement to back wages.
Ratio Decidendi: The court held that the petitioner's services could not be terminated without following due process of law, emphasizing the right to livelihood under Article 21 of the Constitution and the need for fair play and compliance with natural justice principles before terminating an employee's service.
Final Decision: The court allowed the petition, directed the petitioner to join the service, and ordered the respondents to pay 50% of back wages within three months.
JUDGMENT :
VED PRAKASH VAISH, J.
1. By way of the present petition, the petitioner seeks quashing and setting aside of the Office Order No. 5 of 2016 issued under Memo dated 16th January, 2015 whereby the regularisation order of the petitioner dated 10th September, 2009 was cancelled. The petitioner also prays for direction to the respondents to reinstate him in service to make payment of subsistence allowance w.e.f. July, 2014.
2. Briefly recapitulating the facts leading to the filing of the present petition are that the petitioner was initially appointed as a Section Assistant on Work Charge basis for a period of four months vide Office Order No. 23 of 1991 under Memo No. 8314-19, dated 8th November, 1991. The petitioner continued to work for more than 18 years with annual increments and raise in pay from time to time.
3. It is stated that vide Office Order No. 16 of 2009 under Memo dated 10th September, 2009, the petitioner was brought temporarily under regular cadre for a period of three months w.e.f. 8th September, 2009 to 6th December, 2009 in place of one Shri A. Jalil (Retd.) Section Assistant in the time scale of pay Rs. 3100-70-3520-EB-80-4160-90-5060/- plus other allowances as admissible.
4. It is further stated that when the petitioner had gone for a picnic along with his friends on 24th May, 2015, someone got in possession of petitioner's mobile phone and sent an intimidating message to a politician as a consequence of which an FIR was registered against the petitioner under Section 506 of IPC read with Section 66A (b) (c) of the Information Technology Act. The petitioner was arrested on 3rd June, 2014, but later enlarged on bail.
5. After releasing on bail, the petitioner reported to the office to resume duties, but he was handed over a letter dated 4th July, 2014 by the Assistant Executive Engineer, PWD (Roads) whereby he was called to give explanation in relation to the incident as alleged in the FIR within three days. It is further stated that the petitioner was also asked not to report for work for few days.
6. The petitioner submitted his reply vide letter dated 7th July, 2014. However, he was not allowed to join duty. The petitioner then made a representation during November, 2014 to the Chief Engineer, PWD (Roads) praying for grant of subsistence allowance since he was not being allowed to resume duty.
7. In the interregnum, the respondents issued the impugned Office Order No. 5 of 2014 under Memo dated 16th January, 2015 whereby it has been stated that the regularisation order of the petitioner issued under Office Order No. 16 of 2009 under Memo dated 10th September, 2009 was cancelled.
8. The petitioner thus challenged the impugned order issued under Memo dated 16th January, 2015 as also the action of the respondents in disallowing him to resume duty w.e.f. July, 2014 despite there being no suspension order on various grounds.
9. Learned counsel for the petitioner contended that the respondents have acted most arbitrarily, illegally and discriminatory manner in not allowing the petitioner to resume duty inasmuch as there was no suspension order. Learned counsel also assails the impugned order Memo dated 16th January, 2015 as illegal, arbitrary and being issued without following the due process of law.
10. It is further contended that the respondents cannot terminate the services of the petitioner without following the due process of law. It is stated that the order of cancellation of regularisation was issued after a lapse of six years and the stand of the respondents of not seeking approval of the Personnel Department cannot be attributed to the petitioner.
11. Learned counsel for the petitioner placed reliance on the judgements reported as 'Delhi Transport Corporation v. D.T.C. Mazdoor Congress' reported as (1991) Suppl. 1 SCC 600 and contended that a permanent pot in a public service covers normally substantive right to the post and that the arbitrary, unbridled and naked power of wide discretion to dismiss a per
