Zoramthara Fanai vs State of Mizoram and ors

MICHAEL ZOTHANKHUMA

 1. Heard Mr. Joseph L. Renthlei, counsel for the petitioner. Also heard Mr. Samuel Vanlalhriata Chhangte, Government Advocate for the

respondent Nos. 1 and 2 and Mr. L.H. Lianhrima, senior counsel assisted by Ms. H. Lalmalsawmi, counsel for the respondent Nos. 3, 4 and 6. Also

heard Ms. Zairemsangpuii, CGC for the respondent No. 5.

The petitioner has prayed for setting aside (1) the Minutes of the 43rd Meeting of the State Level Advisory Committee of State Institute of Rural

Development & Panchayati Raj for Mizoram held on 07.04.2017 (hereinafter referred to as the “Meeting Minutes dated 07.04.2017â€), by which a

decision was taken not to extend the contract engagement of the petitioner and (2) the consequential termination of his service, vide Notice of

Termination dated 20.04.2017 issued by the respondent No. 3 i.e. Director, State Institute of Rural Development and Panchayati Raj, Mizoram.

The petitioner’s case in brief is that the petitioner was initially appointed as Data Entry Operator (DEO) on contract basis, vide Order dated

17.04.2007 issued by the respondent No. 3 and thereafter, an Agreement Deed dated 23.04.2007 was also executed between the petitioner and the

respondent No. 3, which governed the service conditions of the petitioner. The petitioner was thereafter appointed as DEO, on co-terminus basis with

the Extension Training Centre, Mizoram, vide Order dated 04.08.2009 issued by the respondent No. 3.

The petitioner’s counsel submits that in consequence to a complaint submitted by one Saihlupuii of Thingsulthliah, which was to the effect that

Saihlupuii’s daughter has been sexually harassed by one Lalbiakthanga in the residence of the petitioner, in which the petitioner had alleged to

have helped the said Lalbiakthanga by locking the door from outside, a criminal case was registered against the said Lalbiakthanga and the petitioner.

Thereafter, the petitioner was arrested in Bawngkawn Police Station Case No. 305/2015 dated 09.12.2015. The petitioner was thereafter discharged

from the Bawngkawn Police Station Case No. 305/2015 vide Order dated 02.12.2016 passed by the Special Court, POCSO Act, Aizawl in Criminal

Trial No. 1261 of 2016.

The petitioner’s counsel submits that once the petitioner has been discharged in the criminal case, the respondents could not have issued any

order terminating his service, as the same was without any basis, as no internal or departmental enquiry was initiated against the petitioner. He further

submits that no notice was issued to the petitioner prior to the impugned Notice of Termination dated 20.04.2017.

Mr. L.H. Lianhrima, senior counsel appearing for the respondent Nos. 3, 4 and 6 submits that the petitioner is bound by the terms of the Agreement

Deed dated 23.04.2007 and the same is also reflected in the Order dated 04.08.2009, by which the petitioner had been appointed on co-terminus basis.

He further submits that an acquittal in a criminal court does not bar an employer from exercising powers in accordance with the rules and regulations

in force. He submits that the petitioner was terminated from service in consonance with Clause 3 (3) of the Agreement dated 23.04.2007, when he

was arrested in pursuant to Bawngkawn Police Station case No. 305/2015 and as the petitioner’s service was subject to the terms and conditions

of the Agreement Deed dated 23.04.2007, there was no infirmity with the termination of the petitioner’s service, as acquittal in a criminal case

does not entitle a person to automatic reinstatement. He further submits that the order of discharge of the petitioner from the criminal case shows that

the petitioner has not been honorably acquitted and as such, the petitioner does not have any right to make a claim for reinstatement.

In support of his submission, the learned senior counsel has relied upon the judgment of the Apex Court in Ajay Kumar Singh â€"vs- Flag Officer

Commanding-in-Chief and Others reported in (2016) 9 SCC 179.

Mr. Samuel Vanlalhriata Chhangte, Government Advocate for the respondent Nos. 1 and 2 supports the submission made by the learned senior

counsel appearing for the respondent Nos. 3, 4 and 6.

I have heard the counsels for the parties.

Clause 3 of the Agreement Deed dated 23.04.2007 is reproduced below:

“3. The service of the party of the first part may be terminated as follows:-

(1) By the Governing Body without previous notice if the Governing Body is satisfied on the report of the standing medical evidence that the party of

the first part is unfit and is likely for a considerable period to continue unfit by reason of ill â€" health for the discharge of his/her duties in Mizoram.

PROVIDED always that the decision of the Governing Body that the party of the first part is likely to continue unfit shall be conclusively binding on

the party of the first part.

(2) By the Governing Body or their officers having proper authority without any previous notice if the party of the first part shall be guilty of any

insubordination, intemperance or other misconduct or of any breach or non-performance of any of the provisions of these presents or of any rules

pertaining to the branch of the public service to which he may belong or is found unsuitable for efficient performance of duties.

(3) By 1 (one) Calendar month’s notice in writing given at any time during service under this agreement (accept the first year thereof) either by

him/her to the authority or the Governing Body or their authorized officers to him/her without cause assigned.

PROVIDED always that the Governing Body or their Officers having proper authority may in lieu of any notice herein provided for, give the party of

the first part a sum equal to the amount of his/her pay for one month or shorter notice than one month if they pay him/her a sum equal to the amount

of his/her pay for the period by which such notice falls short of the month.â€​

The Minutes of the 43rd Meeting of the State Level Advisory Committee of State Institute of Rural Development & Panchayati Raj for Mizoram

held on 07.04.2017 and the contents of the Notice of Termination dated 20.04.2017 are reproduced below:-

“Resolution No. 2: Termination of Contract Engagement in respect of Pu Zoramthara Fanai, DEO & Pu Lalbiakthanga, IV Grade of ETC,

Thingsulthliah:

After carefully deliberation on the case of Pu Zoramthara Fanai, DEO & Pu Lalbiakthanga, IV Grade of Extension Training Centre, Thingsulthliah i.e.

SC. No. 140 of 2016; Criminal Trial No. 1261 of 2016; U/s 8/17 of POCSO Act 2012 R/w 23 JJ Act; Ref; Bawngkawn PS C/No. 305/2015 dt.

9.12.2015, the SLAC meeting viewed the case very serious that the incident took place during office working hour on 3rd December, 2015 and both

the accused were believed to be intoxicated. It was also learnt that the complainant Pi Saihlupuii of Thingsulthliah and the accused Pu Lalbiakthanga,

IV Grade, ETC, Thingsulthliah are relative and reached compromise. Hence, the meeting decided not to extend the contract engagement of Pu

Zoramthara Fanai, DEO, Extension Training Centre, Thingsulthliah and Pu Lalbiakthanga, IV Grade, Extension Training Centre, Thingsulthliah.â€​

“NOTICE OF TERMINATION

In pursuance of Sub-no. (3) of Sl. No. 3 of Agreement Deed made on 23rd April, 2007 between Pu Zoramthara Fanai, DEO, Extension Training

Centre, Thingsulthliah and the Governing Body of SIRD, Mizoram and the decision at resolution no. 2 of the 43rd meeting of the State Level Advisory

Committee, SIRD&PR, Mizoram held on the 7th April, 2017, I, Smt. Maria C.T. Zuali, Appointing Authority & Director, SIRD&PR, Mizoram hereby

give notice to Pu Zoramthara Fanai, DEO, Extension Training Centre, Thingsulthliah that his contract engagement could no longer be extended and his

services shall stand terminated with effect from 20th May, 2017.â€​

On a perusal of the resolution adopted in the Meeting Minutes dated 07.04.2017, it is clearly discernable that the decision not to extend the

engagement of the petitioner has been made on the basis of the facts under which Bawngkawn Police Station Case No. 305/2015 was registered. The

meeting has considered the incident recorded in the Bawngkawn Police Station Case as being serious. It has also taken into account the fact that the

petitioner was believed to be intoxicated.

Consequent to the above resolution passed in the Meeting Minutes dated 07.04.2017, the notice of termination of the petitioner’s service was

made in pursuant to Clause 3 (3) of the Agreement Deed dated 23.04.2007.

A perusal of the Meeting Minutes dated 07.04.2017 and the Notice of Termination dated 20.04.2017 clearly point to the fact that the

petitioner’s service has not been extended due to allegations of misconduct. However, there is nothing to show that the petitioner has been found

guilty of misconduct in the criminal proceeding as the discharge of the petitioner by the Order dated 02.12.2016 by the Special Court, POCSO Act

does not give any indication of the same.

In this regard, paragraphs 9 & 10 of the Order dated 02.12.2016, passed in the criminal proceeding under SC No. 140/2016 is reproduced below:-

“9. After hearing the ld. P.P and the ld. Counsels and on perusal of the documents available with the record. It was learnt that the incident

occurred due to the jealous nature of the accused No. 3, who finding her husband accused No. 1 with alleged victim in a house together with no other

persons, presumed and suspect that her husband was having sexual affair with the alleged victim. Without knowing the situation in which they are

together started abusing the alleged victim by beating her and undressing her dressed. As both the accused No. 3 and the alleged victim are near

relatives, they have made a compromised in the presence of local Village Council.

As the complainant Pi Saihlupuii had made a compromise and is no more angry with the accused persons and she is likely not to give evidence

before the court, and the case utmost would fall under section 323 of IPC voluntary causing hurt against accused No. 3 in my opinion prima-facie case

under the charge section 17/18 of POCSO Act 2012 is not established in the instant case. Hence, all the accused persons are discharged from the

charge section. Bailbonds are liquidated and bailers are free from the bail bond.â€​

A reading of the extract of the Order dated 02.12.2016 quoted above shows that there is nothing against the petitioner. The accused No. 1

referred to above is Lalbiakthanga and accused No. 3 is the wife of Lalbiakthanga. Further, the question of the petitioner being intoxicated finds

mention only in the Meeting Minutes dated 07.04.2017, without there being any corroboration of the same.

Clause 3 (2) of the Agreement Deed dated 23.04.2007 provides for termination of the petitioner’s service in the event of him being found

guilty of insubordination, intemperance or other misconduct or of any breach or non performance of any of the provisions of the agreement and rules.

Clause 3 (3) of the agreement provides for termination without any cause being assigned for the same. As the Meeting Minutes dated 07.04.2017

clearly shows that the petitioner’s service was not being extended due to the criminal case and on the belief that he was intoxicated, the petitioner

should have been terminated under Clause 3 (2) and not under Clause 3 (3) of the Agreement. However, to terminate the petitioner’s service for

misconduct, Clause 3(3) of the Agreement requires that the employee is found to be guilty of the misconduct.

The above being said, the respondents would have had to issue notice to the petitioner if his service is terminated on account of misconduct, as

they are left open to the charge of having acted arbitrarily, as it is in violation of the principles of natural justice. Though Clause 3 (2) of the

Agreement provides for termination of the services of the employee without issuance of any notice, the contents of the Meeting Minutes dated

07.04.2017, on the basis of which the petitioner’s service was terminated, clearly shows that the petitioner’s service was not extended on

grounds of alleged misconduct.

In the case of V.P. Ahuja -vs- State of Punjab reported in (2000) 3 SCC 239, the Apex Court has held that a probationer, like a temporary servant, is

also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without

complying with the principles of natural justice.

In the case of Balmer Lawrie & Company Limited and Others â€"vs- Partha Sarathi Sen Roy and Others reported in (2013) 8 SCC 345, the Apex

Court has held at paragraph 30 as follows:-

“30. …………Where an unfair and untenable, or an irrational clause in a contract, is also unjust, the same is amenable to judicial review. The

Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and

equal protection of the law. Thus, it is necessary to strike down and unfair and unreasonable contract, or an unfair or unreasonable clause in a

contract, that has been entered into by parties who do not enjoy equal bargaining power, and are hence hit by Section 23 of the Contract Act, and

where such a condition or provision becomes unconscionable, unfair, unreasonable and further, is against public policy. Where inequality of bargaining

power is the result of great disparity between the economic strengths of the contracting parties, the aforesaid principle would automatically apply for

the reason that, freedom of contract must be founded on the basis of equality of bargaining power between such contracting parties, and even though

ad idem is assumed, applicability of standard form of contract is the rule. Consent or consensus ad idem as regards the weaker party may therefore,

be entirely absent. Thus, the existence of equal bargaining power between parties becomes largely an illusion. The State itself, or a State

instrumentality cannot impose unconstitutional conditions in statutory rules/regulations vis-Ã -vis its employees in order to terminate the services of its

permanent employees in accordance with such terms and conditions.â€​

The Agreement executed between the parties provides that no notice need be issued for termination of the petitioner’s service when it is

found that the employee is guilty of misconduct. First of all, in the present case, there is no finding of guilty against the petitioner. Secondly, the

petitioner, who is appointed on co-terminus basis is also entitled to a certain protection of his services and he cannot be terminated in a punitive

manner without complying with the principles of natural justice. As Article 14 of the Constitution guarantees to all person equality before law and

equal protection of the laws, the Clause in the Agreement dated 23.04.2007, which provides that no notice need to be issued to the employee before

termination of his service on finding him guilty of misconduct is arbitrary and unconstitutional. Accordingly, the said condition as reflected in Clause 3

(2) of the Agreement dated 23.04.2007 is declared to be illegal and cannot be acted upon. The principles of natural justice will have to be followed if

the petitioner’s service was discontinued on grounds of alleged misconduct.

In the case of Ajay Kumar Singh (Supra) relied upon by the counsel for the respondent Nos. 3, 4 and 6, the Apex Court has held that acquittal in a

criminal court does not bar an employer from exercising powers in accordance with the rules and regulations in force. The law laid down by the Apex

Court in Ajay Kumar Singh (Supra) is binding upon this Court. The above being said, the respondents have to exercise powers in accordance with the

rules and regulations and the principles of natural justice prior to termination of an employee’s service on charges of alleged misconduct. As the

facts and issues in this case and in the case of Ajay Kumar Singh (Supra) are different, the law laid down in Ajay Kumar Singh (Supra) does not

come to the aid of the respondents.

In the present case also, the principles of natural justice has not been complied with as no notice was issued to the petitioner. The termination

being on the basis of an alleged misconduct, the termination of the petitioner’s service has to be held to be stigmatic in nature and accordingly, the

termination of the petitioner’s service could have been done only after issuance of a notice. Further, as per Clause 3 (2) of the Agreement, the

employees service can be terminated only if he is found to be guilty of misconduct. As stated earlier, there is no finding of guilt in the criminal

proceeding as he was discharged by the Criminal Court. Further, no independent/ departmental enquiry was initiated by the respondents against the

petitioner to enable the respondents to come to a finding of guilty against the petitioner. The facts of the case thus shows that the petitioner was not

given any opportunity to be heard before termination of his service, which was done on the basis of an alleged misconduct, as is reflected in the

Meeting Minutes dated 07.04.2017.

Accordingly, in view of the reasons stated above, this Court finds that the Notice of Termination dated 20.04.2017 is arbitrary and could not have

been issued under Clause 3 (3) of the Agreement dated 23.04.2007 and could have been issued only under Clause 3 (2), provided the petitioner was

found guilty of misconduct and prior notice was issued to the petitioner.

The impugned Meeting Minutes dated 07.04.2017 and the Notice of Termination dated 20.04.2017 are accordingly set aside.

The respondents are directed to reinstate the petitioner into service.

The question of payment of consequential benefits is left to be decided by the respondents.

Liberty is also granted to the respondents to initiate a departmental enquiry against the petitioner, if so advised. However, in the event that the

respondents decided to initiate departmental enquiry/proceedings against the petitioner, the same should be done within a period of 2 (two) months

from today.

Writ petition is accordingly disposed of. No costs.