WANG TSHERING TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The petitioner, by this Writ Petition, has challenged the order terminating his services as a bus-conductor in the Sikkim Nationalised Transport, a Department of Government of Sikkim. The appointment of the petitioner being admittedly on a temporary basis, the main challenge thrown by his learned counsel against the validity of the order of termination is that it was not a termination simpliciter but was really a punitive measure and that the same has also cast stigma on him and is likely to visit him with evil consequences. The case, therefore, it is urged squarely attracts the provisions of Art. 311 of the Constitution and the impugned order must fail for non-compliance therewith.

(2.) It is now settled law that even in the case of a temporary servant who has no right to the post, if the order of termination visits the servant with any evil consequence or casts an aspersion against his character or integrity or attaches any sort of stigma on him, the order would amount to dismissal within the meaning of Art. 311 and must, in order to be effective, squarely satisfy the requirements of that Article. It appears that in the Office Order No. 1047/T dated 8-1-81 (Annexure 'B') it was ordered as hereunder :

(3.) Save for the words "from the date of his suspension", the impugned order has all the appearance of a simple order of termination of a temporary servant. But we arc afraid that as a result of reference in the impugned order to the fact of suspension of the petitioner and making the order effective from the date of such suspension, the order has ceased to be an order of termination simpliciter. It is, as already noted, now the settled law that an order of termination of services of even temporary servants cannot be effective without complying with the provisions of Art. 311, if it casts any aspersion on or attaches any stigma to or visits the servant with evil consequences. The impugned order, as already noted, clearly refers to the petitioner being suspended and purports to be effective from the date of such suspension. That an order of termination cannot be made effective from an anterior date is a different matter and Mr. Kharga also, while fairly conceding that position, has submitted that the impugned order can only be effective from the date on which it was served on the petitioner. But what we are concerned with in this case as to whether the impugned order can at all be effective, even prospectively, in view of its categorical reference to the fact of the petitioner being suspended and for its purporting to be effective from the date of such suspension. "Suspension" in matters relating to services obviously refers to some misconduct, alleged or real. If an order of termination refers to an earlier order of suspension of the servant concerned and if suspension, in service terminology. is referable only to some blame worthly conduct, then would it not amount to an aspersion or stigma, because all that the latter expression means is "imputation attaching to person's reputation", "stain on one's good name" (Vide, Concise Oxford Dictionary) ''. We are inclined to think that it would and it appears that the respondent also took that view and that is why in the affidavit filed on their behalf it was averred that the impugned order (Annexure 'E' to the petition) was rectified by a sub-sequent Office Order No.356/T dated 25-6-82. whereby the words "with effect from the date of suspension" in the impugned order were sought to be substituted by the words "with effect from 26-8-81". The respondents have annexed a copy of the said Office Order as Annexure 'C' to their affidavit. But while the respondents in their affidavit (vide, para 9) could not aver that a copy of that Office Order was ever served on or communicated to the petitioner, the latter in has rejoinder pledged his oath to assert that no such order was ever served or communicated to him, (vide paragraph 8 of the Rejoinder). On his prayer, time was allowed to Mr. Kharga to file further affidavits or produce any document to show the service on and the receipt by the petitioner of a copy of the said Office Order, but Mr. Kharga has frankly conceded that the respondents have nothing to show that a copy of the Office Order (Annexure 'C' to the affidavit of the Respondents) was communicated to or served on the petitioner. In the circumstances, we have no other alternative than to proceed on the basis that no such Office Order was communicated to the petitioner. In fact, Mr. Kharga has also concluded his argument on that basis and, therefore, the question as to what effect, if any. such corrections would have on the impugned order need not detain us.