Ram Bhagat and Others vs State of Nagaland and Others

B. Lamare, J.—Heard Mr. Kakheto Sema, learned Counsel for the Petitioners as well as Mr. S.Y. Longkumer, learned Govt. Advocate for the Respondents.

These four writ petitions were taken together as it relates to the same termination order issued by the Respondent No. 3 in the order No. CE/PHE/WC/GEN-1/2000-01 (PT-I) dated 11.10.2000 (Annexure-6 to the writ petition). The same question of law and facts are also involved in the four cases.

The case in brief is that the Petitioner in W.P.(C) No. 172(K) 2000 was appointed on 9.11.87. The Petitioner in WP(C) No. 173(K)2000 was appointed on 18.5.1983, Petitioner in WP(C) No. 174(K)2000 was appointed on 11.12.87 and Petitioner in WP(C) No. 175(K) 2000 was appointed on 19.12.89. All of them were appointed as Khalasis under the PHE Department, Nagaland. Since then, the Petitioners in the four writ petitions have been continuing in their services. Thereafter, a criminal case being Dimapur West P.S. Case No. 116/2000 u/s 457/380/34 IPC was registered against the Petitioners for alleged theft of construction materials from the store of PHE Department. On the basis of the said criminal case, the services of the Petitioners were terminated by order No. CE/PHE/WC/GEN-1/2000-01(PT.I), dated 11.10.2000. The said termination order is challenged by the Petitioners in these writ petitions.

According to the Petitioners the impugned order of termination was issued without giving an opportunity of being heard as there was no departmental enquiry nor any charges framed against the Petitioners. The Petitioners, therefore, contends that the impugned order was arbitrary and against the principle of natural justice.

The Respondents have filed affidavit-in-opposition and in their affidavit-in-opposition, it is contended that after the alleged theft was committed, the Department was held a preliminary enquiry and it was found that the Petitioners had admitted to have committed the offence. It was on that basis the Petitioners were terminated in the interest of public service as it would create a precedent to encourage criminal acts in the Department if their services were not terminated.

I have heard the counsel for the parties and also perused the records.

The learned Counsel for the Petitioners submits that the impugned termination order is not a termination simplyciter but punitive in nature inasmuch as it is based (sic) report and their arrest by the police (sic) the Petitioners'' appointments were tempor(sic) in nature but since they have been serving in a period ranging from 11 to 18 years, they were acquired the temporary status for which their services cannot be terminated without giving them an opportunity to be heard or to defend themselves, contends the learned Counsel for the Petitioners.

Mr. s Y. Longkumer, learned Counsel for the Respondents on the other hand contends Petitioners were arrested by the conducted by police the controlling officer in the Department and the Petitioners have admitted to have committed the offence. Therefore, in the interest of public service, their services were terminated.

The question to be examined in this case is as to whether the appointment of the Petitioners as temporary employees can be terminated without affording them an opportunity of being heard after they have rendered their services to the Deptt. for long period. The appointment orders of the Petitioners shows that they were promoted to the post of Workcharge Khalasis from the post of W/C Labourers and since then, they have been placed under regular scale of pay without any interruption. The order of termination does not disclose that there was any departmental enquiry nor any charges framed against the Petitioners. To appreciate this fact, the termination order is re-produced below:

Government of Nagaland Office of the Chief Engineer PHE Department Nagaland: Kohima Office Order No. CE/PHE/WC/GEW-1/2000-0 l(Pt.1)

Dt. KMA, 11th October. 2000.

In the interest of public service, the following W/C staff in the office of the Executive Engineer PHED Dimapur Store Division are hereby terminated from service w.e.f. 11.10.2000 as they have been arrested and placed under Police custody, and report of their having stolen store materials from PHED Store the Executive Engineer conce(sic) & G.I.S. shall of lost materials are fully recovered.

Sl. No. Name Designation Code No. 1. Ram Nagina Bhagat W/C Khalasi DMAO926 2. Chotelal Prasad W/C Khalasi DMAO420 3. Ram Bhagat W/C Khalasi DMAO207 4. Ragunath Bhagat W/C Khalasi DMAO953 (K. Khetovi Sumi), Chief Engineer PHE Department Nagaland: Kohima.

From the above order, it clearly shows that the services of the Petitioners were terminated as they were arrested and placed under Police custody when they were reported of stealing store materials from the PHED store which was also confirmed by the Executive Engineer concerned. The order of termination apparently is punitive in nature. .

In the instant case, it is not disputed that the Petitioners'' appointments have acquired temporary status and they have served in that capacity for so many years as indicated above. In the case of Nar Singh Pal Vs. Union of India and Others, the Apex Court in paragraph 6 of the judgment has laid down the law as follows:

Once an employee attains the ''temporary'' status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other articles dealing with services under the Union of India.

The termination of the services of the Petitioners is based on the preliminary enquiry conducted by the Officer of the Department. It was not based on any departmental enquiry. (sic) charges were framed and no opportunity of being heard was given. The order was passed as a punishment on the basis of a criminal case against the Petitioners and without holding a regular departmental enquiry. Therefore, in view of the law laid down by the Apex Court as quoted above, the impugned termination order cannot be sustained.

In view of the discussions and observations made above, the impugned order is set aside and quashed. Respondents are directed to reinstate the Petitioners into service with immediate effect. The Petitioners however, shall not be entitled to any back wages from the date of termination till the date of reinstatement. On their reinstatement, the Respondents are at liberty to initiate departmental proceeding against the Petitioners and place them under suspension and proceed with the departmental proceeding in accordance with the rules and take any appropriate action according to law.

The writ petitions are allowed to the extent as indicated above and disposed of. No costs.