BODOLAND TERRITORIAL COUNCIL REPRESENTED BY THE SECRETARY BTC KOKRAJHAR ASSAM Vs. KRISHNA HALOI S/O HARKANTA HALOI

JUDGEMENT

(1.) THE challenge, in this writ appeal, is against the judgment and order, dated 28.07.2011, passed, in WP(C) No. 5331/2009, by a learned Single Judge of this Court, who, while allowing the writ petition, set aside the order, dated 23.06.2009, passed by the Director of Education, Bodoland Territorial Council, Kokrajhar, whereby the service of the writ petitioner was terminated on, chiefly, four grounds, namely, (i) that the order of termination was not preceded by any notice to show cause against the termination of the appointment of the petitioner as an Assistant Teacher in ME School, (ii) that the order of termination had been passed after 11 (eleven) years of the appointment of the writ petitioner, (iii) that the order of termination is vague and (iv) that the petitioner's appointment, as an Assistant Teacher, had been confirmed many years back.

(2.) WE have heard Mr. D. Das, learned Senior counsel, appearing on behalf of the appellant, and Mrs. N. Saikia, learned counsel for the writ petitioner-respondent.

(3.) THUS, the order, dated 23.6.2009, is not a vague order inasmuch as it assigned grounds, which led to the termination of the writ petitioner's appointment. There is no doubt that the order of termination was not preceded by any notice to show cause against the proposed termination. This by itself is, however, not sufficient, under the law, to set aside an order of termination unless the writ petitioner can show that absence of notice has caused prejudice to him. The reason for insisting on a notice before termination of an employee's service is that the employee must receive an opportunity to show cause against the grounds on which his appoint is sought to be terminated. This does not, as a corollary, necessarily mean that an order of termination must be set aside, whenever it is not preceded by a notice to show cause. It is within the ambit of the power of the Court to ask the employee as to what would have been his reply, had be been served with a notice to show cause. If the reply of the employee reveals that the conclusion, reached by the employer to terminate the service of the employee, without serving any notice on the employee to show cause, would have remained the same, had the employee been served with a notice to show cause, the Court would not interfere with the order of termination, for, in such a case, no prejudice can be said to have been caused to the employee concerned. The test, in such cases, always lies in determining as to whether any prejudice has been caused to an employee for not giving him any notice to show cause or for not supplying to him enquiry report, which becomes the basis of imposition of punishment. Reference, in this regard, made to the case of Union of India Vs. Bisamber Das Dogra, reported in (2009) 13 SCC 102, wherein the Supreme Court took note Umrao Singh of various decisions, including its decision in Choudhary (Dr.) Vs. State of M.P., reported in (1994) 4 SCC 328, and Syndicate Bank Vs. Venkatesh Gururao Kurati, reported in (2006) 3 SCC 150, and concluded to the effect that to sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice. The relevant observations, appearing in para 12 and 13 of Bisamber Das Dogra (supra), read as under: