RAM SUBAL NONIA Vs. UNION TERRITORY OF MIZORAM

JUDGEMENT

(1.) This writ application under Art. 226 of the Constitution involves a short question as to whether the petitioner who has been dismissed from his services on the allegation that he had been "found in habit of wilful absence from duties contravening the provisions of Rule 3 (ii) of the Central Civil Services (Conduct) Rules, 1964" was visited with the penalty in a manner which incurred violation of constitutional and statutory provisions. The impugned order reads as follows:

(2.) The following facts have not been disputed by the Respondents:

(3.) Mr. Bezbaruah, learned Sr. Standing Counsel, Government of Mizoram, tried to salvage the impugned order of dismissal by taking resort to the ultimate paragraph of the order where the petitioner was shown as a temporary servant. Learned counsel submits that the petitioner could be discharged under R. 5 (9) of the Central Civil Services (Temporary Service) Rules, 1965. However, in the instant case this is not a discharge simpliciter but an order stigmatizing the petitioner for misconduct as a penalty. It is apparent from the impugned order that it was not a discharge simpliciter as it contains positive and affirmative allegation of misconduct against the petitioner. Such an order has far-reaching consequences. Apart from disabling a civil servant for getting re-employment and/or fresh employment, it imputes indelible stigma on account of which he surely has to suffer in society and other fields of activities as well. The alleged misconduct is surely a "misconduct" contemplated under Rule 3 of the Civil Services (Conduct) Rules, 1964. On a bare perusal of the order it appears clear that the petitioner was stigmatised disabling him to obtain fresh or new employment with the Government and it would be difficult for him to procure any o.ther employment. The order of dismissal was a penalty contemplated under the Classification, Control and Appeal Rules. The Government as well as the petitioner was bound by the rules, There cannot be any debate that dismissal from service is considered to be a major penalty under Rule 11 of the Rules of 1965 and without following the procedure for imposing penalty as prescribed in Part VI of the said Rules, the petitioner could not have been dismissed from his service. The impugned order is bad because the order of dismissal was made in breach of the mandatory provisions of Art. 311 (2) of the Constitution and in breach of the principles of natural justice and fair play. It is an admitted fact that in the instant case there was no enquiry at all not to speak of the enquiries prescribed in Part-VI of the Rules of 1965. As such the impugned order is positively violative of Article 311 (2) of the Constitution which we extract: