KIRON CH BORAH Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is one of those few classic cases in which the object of the employer in removing from service his employee may be acceptable, but the manner of such removal may not stand scrutiny of law. The object, therefore, gets defeated, which may have its own unpleasant reverberations on the society, but such reverberations alone may not be a reason for the Court to approve and uphold such removal of the employee.

(2.) In a narrow compass, the case of the petitioner may be put as follows: The petitioner, a diploma holder in civil engineering, joined the department of Animal Husbandry and Veterinary, Government of Assam, on 27.07.68 and he was promoted as Assistant Engineer in the same department on 08-08-85. Considering his merit and seniority, a proposal was mooted by the department concerned for promotion of the petitioner to the post of Executive Engineer. Soon after the promotion of one Sri C. Barsaikia from the post of the Executive Engineer to the post of Joint Director (Engineering) in the said department, the respondent No.2 allowed the petitioner, vide order, dated 30.12.89, to hold temporarily the charge of the office of the Executive Engineer in the said department and accordingly, the petitioner continue to hold the charge of the office of the Executive Engineer, at Guwahati, since 01.01.90. The Government, then, vide order, dated 05.10.1991 (Annexure 5 to the writ petition) allowed the petitioner.to cross the efficiency bar at the stage of Rs. 2175/- raising his pay to Rs. 2795/- with effect from 01.01.90. As the Government did not promote the petitioner to the post of Executive Engineer permanently, the petitioner approached this Court by making a writ application, which gave rise to the Civil Rule No. 1235/1991. While this writ petition was pending, the Director of the department concerned, again, moved the proposal for promotion of the petitioner as Executive Engineer. However, instead of promoting the petitioner, respondent No.2, vide order No. VFV-173/94/31, dated 11.04.94 (Annexure 6 to the writ petition) retired the petitioner compulsorily with immediate effect in public interest and a banker's cheque of Rs. 15,820/-, being 3 months gross salary was also enclosed with the said order of 11 -04-94. On the same day, by order No. VFV-173/94/39, dated 11.04.94, Respondent No.2 also retired compulsorily Dr. Hemkanta Phukan, Officer- in-Charge, Intensive Cattle Development Project, Tezpur. The petitioner submitted his written representation, dated 12.04.94 (Annexure 7 to the writ petition) against the said order of compulsorily retirement. As the Government did not take any action on his representation, the petitioner approached this Court by way of another writ petition, which gave rise to Civil Rule No. 1526/1994. The respondent No.2, vide order No. VFV-173/ 94/Pt./13, dated 06.07.94, retired compulsorily one Dr. Bishnu Baishya, Assistant Director; Central Veterinary Stores. After his compulsory retirement, the petitioner was issued letter No. VFV-275/94/43, dated 27.01.95 (Annexure 8 to the writ petition) issued by the respondent No.2 directing the petitioner to show cause under Rule 21 of the Assam Services Pension Rules, 1969, as to why penalties prescribed in Rule 21 should not be inflicted on the petitioner on the charges based on the statements of allegations. The said notice of show cause was accompanied by article of charges, statements of allegations, list of witnesses, etc. The petitioner did not, however, receive the said show cause notice, but he came to know of the same vide letter, No. VFV-275/94/62, dated. 21.04.95, of the Joint Secretary of the department of Veterinary and, on the request of the petitioner, copies of the show cause notice, dated 27.01.95, aforementioned, etc., were furnished to the petitioner. On receipt of the notice alongwith the charge aforementioned, the petitioner made, on 09.05.95, an application (Annexure 9 to the writ petition) addressed to the respondent No.2 with request to allow him to inspect 18 numbers of documents in connection with the charge levelled against him. Thereafter, the petitioner addressed several letters to the department concerned with request to make available documents, in question, for inspection and for obtaining copies thereof, but the authorities concerned allowed the petitioner to inspect only four of the said documents and insisted on the petitioner that he should file his reply to the said show cause notice. The petitioner further informed the authorities concerned that he had already challenged the order of his compulsory retirement before this Court and since the matter was sub judice, the Government may not pass any order in the disciplinary matter. Thereafter, the department concerned did not proceed with the matter rather, the respondent No.2 vide order No. VFV-288/92/Pt.68, dated 12.05.98 (Annexure 10 to the writ petition) cancelled the earlier order, dated 11.04.94, of compulsory retirement of Dr. Hemkanta Phukan aforementioned and reinstated him in service without prejudice to the continuation of the departmental proceeding pending against him. It was made clear in this order that as Dr. Phukan had not rendered any service to the government since the date of his retirement, he need not be paid his salary for the period aforementioned. By another order, dated 12.05.98 (Annexure 11 to the writ petition) the respondent No.2 appointed Dr. Phukan as Forest Development Officer, Bokakhat. On coming to know about the reinstatement of Dr. Phukan, the petitioner too submitted his appeal before the Government with request to cancel his order of compulsory retirement, dated 11.04.94. By order, dated 06.07.98, (Annexure 12 to the writ petition) respondent No.2 cancelled the Government's earlier order, dated 06.07.94, aforementioned and reinstated Dr. Bishnu Baishya in service with immediate effect on the same terms and conditions as in the case of Dr. Phukan. The respondent No. 2 vide order, dated 06.07.98 (Annexure 13 to the writ petition) posted Dr. Bishnu Baishya as Assistant Director (Monitor) in the department of Animal Husbandry and Veterinary. The petitioner, again, submitted representation (Annexure 14 to the writ petition) seeking revocation of his compulsory retirement. By another order, dated 08.10.98, (Annexure 15 to the writ petition) passed by the Joint Secretary to the department concerned, the period of compulsory retirement of Dr. Bishnu Baishya was directed to be treated as a period spent on duty for the purpose of increment, promotion, etc., except for payment of salary. The petitioner, then, made his representation before the Minister concerned seeking revocation of his compulsory retirement. By order, dated 02.01.99, (Annexure 17 to the writ petition) the respondent No.2 directed that Dr. Baishya would be entitled to full benefits including salary on his reinstatement in service. Eventually, by order, dated 26.02.99, (Annexure 18 to the writ petition) issued by respondent No.2, the petitioner too was reinstated in service with effect from the date of his taking over the charge pending departmental proceeding and by the same order the writ petitioner was posted as Assistant Engineer in the Directorate of Animal Husbandry and Veterinary and the petitioner accordingly joined the said post on 01.03.99: However, by another order, dated 09.04.99, (Annexure 20 to the writ petition) the respondent No.2 withdrew the order of reinstatement of the petitioner with immediate effect. In the order withdrawing the direction for reinstatement of the petitioner, it was stated that there was no provision in FR 56 for revocation of the order of compulsory retirement. This order, dated 26.02.99 also made it clear that the earlier order, dated 11.04.94, compulsorily retiring the petitioner had been passed on the ground that the petitioner had outlived his utility and was of doubtful integrity. By this notification, the petitioner was directed to submit his papers relating to retirement benefits, etc. The petitioner, now, claims that since the date of his appointment he has been working sincerely and honestly to the satisfaction of all concerned and to the knowledge of the petitioner, there is no adverse entry or remark in his service record and at no point of time, he was charged with any allegation of misconduct.

(3.) The petitioner has, therefore, approached this Court with the help of his present application made under Article 226 of the Constitution of India seeking issuance of appropriate write(s) setting aside and quashing the impugned order, dated 11.04.94 (Annexure 6 to the writ petition) and 09.04.99 (Annexure 20 to the writ petition) aforementioned and for necessary consequential releifs.