Bimal Sarkar vs State Of Tripura And Ors

Heard Mr. Somik Deb, learned counsel appearing for the petitioner. Also heard Mr. D. Bhattacharya, learned G.A. appearing for the State-respondents.

By means of filing the present writ petition, the petitioner has challenged the impugned termination order dated 29.06.2015 issued by the District Magistrate & Collector(District Programme Coordinator-MGNREGA), West Tripura District, Agartala(Annexure-P7 to the writ petition).

Brief facts are as under:

The petitioner was first engaged as Technical Assistant vide order dated 24.06.2011 along with other persons on contractual basis for a period of two years, which may be extended time to time subject to satisfactory performance to the duties entrusted upon him. When the petitioner was in such engagement the petitioner was served with a show-cause notice dated 12.06.2015 issued by the respondent No.3(Annexure-P4 to the writ petition).

After receipt of the said show-cause notice, the petitioner has submitted representation dated 22.06.2015 controverting the allegations leveled in the said show-cause notice(Annexure-P6 to the writ petition).

The said representation was duly considered by the respondent No.3 and while issuing the impugned termination order dated 29.06.2015, the respondent No.3 dwelled upon all the contentions the petitioner raised in his representation. Ultimately, the respondent No.3 found the petitioner unsuitable for the post of Technical Assistant, and being found his service unsuitable the said engagement of the petitioner was terminated.

The State-respondents by way of filing counter affidavit had denied the statements made by the petitioner that he was not afforded with reasonable opportunity to defend his case.

The main controversy arises in the present writ petition is as to whether the impugned termination order is bad in law being stigmatic in nature. The bone of contention of the learned counsel, Mr. Somik Deb appearing for the petitioner is that the impugned termination order dated 29.06.2015 per se is illegal and arbitrary and violative of the provisions of Article 14 and 16 of the Constitution of India.

Mr. Deb, learned counsel has contended that serious imputations were made against the petitioner and a full-fledged departmental inquiry was made before issuance of the termination order. In support of his submission, learned counsel for the petitioner has relied upon the decisions of the Apex Court in Siemens Ltd. vs. State of Maharashtra & Ors. reported in (2006) 12 SCC 33 and in Nirmala J. Jhala vs. State of Gujarat & Anr. reported in (2013) 4 SCC 301.

Per contra, Mr. D. Bhattacharya, learned G.A., defending the action of the respondents, has submitted that one of the terms and conditions of the engagement of the petitioner as Technical Assistant under MGNREGA Scheme is that "The continuation of engagement of the Technical Assistant beyond the period of 2(two) years would be subject to satisfactory performance and continuation of the MGNREGS, Tripura."

According to learned G.A., from the terms and conditions of engagement it is clear that the engagement of the petitioner is purely contractual in nature. The petitioner does not hold any civil post and his service may be terminated being found it not satisfactory. Further, learned G.A. appearing for the respondents submitted that the petitioner was afforded with adequate opportunity to defend the charge leveled against him. He was favoured with the show-cause notice, where all the facts, which came against the petitioner were informed to the petitioner and the petitioner in response to the said show-cause notice had dealt with all the allegations in support of his defence in his representation dated 22.06.2015. After receipt of the said representation, the concerned authority had duly considered the reply against the imputations that were made against him and after considering all aspects the respondents found that the petitioner is not suitable for the post of Technical Assistant, as he acted against the established guidelines mentioned in the MGNREGA Scheme and being dissatisfied, the engagement of the petitioner was terminated.

I have considered the rival submissions of the learned counsels appearing for the parties to the lis. I have scaled the authorities placed before this Court by the learned counsels. For the purpose of appreciation, the contents of the show-cause notice issued upon the petitioner may be reproduced here-in-below:

"SHOW CAUSE NOTICE

WHEREAS, it has been proved beyond doubt that Sri Bimal Sarkar, contractual Technical Assistant, under MGNREGA Scheme of the O/o the Block Development Officer, Hezamara R.D. Block has failed miserably to inspect various MGNREGA works of the year 2014-15 on the field due to which 44(Forty Four) number of forge/fake Electronic Fund Transfer Order(FTO) were issued without any physical work on the field from the Computer Data Centre of Hezamara R.D. Block under three ADC Villages namely Baikunthapur, Surendra Nagar and Baluirband of Hezamara RD Block.

&

WHEREAS being Technical Assistant under MGNREGA scheme under Hezamara RD Block, it was the duty of Sri Bimal Sarkar, contractual Technical Assistant, under MGNREGA works on the field under his sector and take due measurement so as to take out the output of the work for the payment of wages of MGNREGA beneficiaries through electronic Fund Transfer Orders(FTOs) based on the output of work but he failed miserably in that which amounts to violation of the spirit of MGNREG Act and MGNREGA Guidelines.

&

WHEREAS, the matter has been referred to the Govt. in the R.D. Deptt. & the RD Department Government of Tripura decided to terminate the services of Sri Bimal Sarkar, Technical Assistant, being a contractual staff due to such type of dereliction of Govt. duties vide letter No.F.8(17)-RD/2015/1213 dated 6th June 2015.

&

NOW THEREFORE, Sri Bimal Sarkar, contractual Technical Assistant under MGNREGA scheme of the o/o the Block Development Officer, Hezamara R.D. Block is hereby directed to submit reply to this show cause notice within seven days from the date of receipt of this letter as to why his contractual services under MGNREGA should not be terminated for failure to do his duty with dignity and as per the guidelines of MGNREGA. His reply must reach this office within seven days otherwise ex-parte action shall be taken against him."

After receipt of the said representation, the respondent No.3 had issued the termination order. For convenience, the said termination order is reproduced here-in-below:

"GOVERNMENT OF TRIPURA OFFICE OF THE DISTRICT MAGISTRATE & COLLECTOR (DISTRICT PROGRAMME COODINATOR-MGNREGA) WEST TRIPURA DISTRICT: AGARTALA

F.4(70)/PART-II/DM/W/ESTT/MGNREGA/2010-11/1612-15

Dated, 29th june 2015

CONTRACT SEVICES TERMINATION ORDER

Whereas the reply submitted by Sri Bimal Sarkar Technical Assistant-MGNREGA(Contractual) in the O/O BDO(Programme Officer-MGNREGA) Hezamara RD Block, dated 22nd June 2015 to the Show-cause Notice F.4(70)/PART-II/DM/W/ESTT/MGNREGA/2010-11/1164-67 dated 12th June 2015 from this office, is found to be unsatisfactory to prove his innocence in the matter of generation of fake/forge online Fund Transfer Orders(FTOs) without physical work of MGNREGA on the field under Balurbandh Village Committee of Hezamara RD Block where 81 number of Forge/Fake FTOs were generated for 19(Nineteen) number of Unskilled MGNREGA works in the year 2014-15 amounting to Rs.2189534/- without any physical work on the ground and he miserably failed to inspect and measure these works on the field as Supervising Officer(Sector Engineer) which amounts to violation of the guidelines of MGNREGA.

&

Whereas being the Sector Engineer and Supervising Officer of Balurbandh ADC Village, it was the duty and responsibility of the Sri Bimal Sarkar, Technical Assistant-MGNREGA(Contractual) to inspect all the MGNREGA works on the ground and take due measurements or if the works were not taken on the ground, then it was the duty of Sri Bimal Sarkar to report the same to the BDO(Programme Officer-MGNREGA) Hezamara RD Block but no such report has been submitted by him to BDO(Programme Officer-MGNREGA) Hezamara RD Block neither he has given any information in any form in this regard. This proves that Sri Bimal Sarkar failed to do his duties with dignity and integrity which amounts to violation of MGNREGA guidelines.

&

Whereas being the Technical Assistant, it was the duty of Sri Bimal Sarkar to get the copies of work orders of all MGNREGA works which were being executed under Balurbandh ADC Village i.e. under his sector in which he failed miserably and neither any written communication was done by Sri Bimal Sarkar to the Implementing Officer i.e Panchayat Secretary of Balurbandh ADC Village Committee for obtaining the copies of the work orders nor he informed the BDO about this matter of non receipt of work order copies from the Village Committee Office Balurbandh ADC Village, hence the contention made by him in his reply that he did not get any copy of any work order from Balurbandh Village Committee office becomes baseless.

&

Whereas all the MGNREGA contract workers/contract employees are deployed by the District Programme Coordinator(DM & Collector) or the Programme Officer(BDO) for proper implementation of MGNREGA works as per the MGNREG Act 2005 and Guidelines of MGNREGA for which they get payment on monthly basis through 6% Administrative Contingency of MGNREGA and in this case it is evident that Sri Bimal Sarkar miserably failed to perform his duties as per the spirit of the MGNREG Act 2005 and Guidelines of MGNREGA.

Hence the contract services of Sri Bimal Sarkar, Technical Assistant-MGNREGA(contractual), posted in the O/O BDO(Programme Officer-MGNREGA) Hezamara RD Block, are hereby terminated from the date of this order due to violation of MGNREG Act 2005 and violation of guidelines of MGNREGA.

(Dr. Milind Ramteke, IAS) District Magistate & Collector (District Programme Coordinator-MGNREGA) West Tripura District : Agartala"

A bare perusal of the show-cause notice, it is revealed that in the show-cause notice the competent authority brought before all the facts of imputations levelled against him and thereby provided him all the opportunities to confront those allegations and accordingly submitted reply by way of representation. From the representation, it is apparent that the petitioner has dwelled upon all the allegations in support of his defence. The termination order dated 29.06.2015 clearly manifests that the respondent No.3 had duly considered the defence raised by the petitioner in his representation and after due consideration the respondent No.3 had issued the termination order.

Admittedly, the petitioner does not hold the civil post and his service was purely on contractual basis under the MGNREGA Scheme. The petitioner in his representation dated 22.06.2015 has stated that he was not aware of the duties he was entrusted upon and none of the officers of his hierarchy had informed about the nature of works in implementing the works under the Scheme.

By filing a joint counter affidavit, the respondents have stated that the role of Technical Assistant(TA) under MGNREGA is discernible from the guidelines as envisaged under MGNREGA Act, 2005(MGNREGA). The operational guideline-2013 of Mahatma Gandhi National Rural Employment Guarantee Act, 2005(MGNREGA) provides role of T.A. as under:

"4.2 CLUSTER OF GRAM PANCHAYATS/SUB-DISTRICT/BLOCK.

Human resources at this level, led by the Programme Officer, will consist, inter alia of (i) Technical Assistant, (ii) Computer Operator-cum-Accounts Clerk, (iii) Voluntary Technical Corps and the (iv) Cluster Facilitation Team.

4.2.1 Technical Assistant

i) The Technical Assistant(TA) will assist the GP in identifying and conducting measurement of works.

ii) The TA should be appointed for a cluster of villages, depending on the potential labour demand. TA will report to the GP, CFT and PO.

iii) The TA should be a generalist which an understanding of the MGNREGA processes and be well versed with various MGNREGS works. He/she should be trained in estimating and measuring works pertaining to watershed development, natural resource management, agriculture, horticulture and so on.

iv) The following will be the important responsibilities of a TA:

a. Identification of works as per the Gram Sabha resolution on works.

b. Preparation of estimates for works in standard prescribed templates.

c. Capturing measurements on a weekly basis for all the works taken up within three days after muster rolls are closed.

d. Be responsible for work quality.

e. Maintenance of measurement books.

f. Mentoring mates and GRSs on measurement and quality of works.

g. Building technical capacities of mates and GRSs.

7.13 MEASUREMENT OF WORKS, CHECK MEASUREMENTS AND CALCULATION OF WAGES

7.13.2 Weekly measurement of works should be undertaken by measurement officers (Technical Assistants/Overseers/Junior Engineers). Measurement officers should ensure that all measurements are taken within 3 days after close of weekly muster. This is crucial for timely wage payments."

In the termination order dated 29.06.2015, it is specifically stated that all the MGNREGA contract workers/contract employees are deployed by the District Programme Coordinator(DM & Collector) or the Programme Officer(BDO) for proper implementation of MGNREGA works as per the MGNREG Act 2005 and Guidelines of MGNREGA for which they get payment on monthly basis through 6% Administrative Contingency of MGNREGA and in this case it is evident that Sri Bimal Sarkar miserably failed to perform his duties as per the spirit of the MGNREG Act 2005 and Guidelines of MGNREGA.

It is apparent from the said termination order itself that the petitioner has miserably failed to inspect the process of implementation of various works as per the guidelines under the said Act and Scheme. After perusal of the decision of the Apex Court in Siemens Ltd.(supra), as referred by Mr. Somik Deb, learned counsel for the petitioner, in my opinion, the facts of the present case are distinguishable from the facts of the case in Siemens Ltd.(supra). Mr. Deb has relied on para 9 of the said decision, which reads thus:

"9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2006) 12 Scale 262] , but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I. Shephard v. Union of India [(1987) 4 SCC 431 : 1987 SCC (L&S) 438 : AIR 1988 SC 686] .) It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice."

In the case of Siemens Ltd.(supra), the petitioner has challenged the show-cause notice itself, where the Court had observed that the writ petition was not maintainable. In the instant case, the writ petition having held to be maintainable, it has been posted for hearing. So, the roots of the case of Siemens Ltd.(supra) are different and not considered by this Court.

In the case of Nirmala J. Jhala(supra), the petitioner was a member of Gujarat State Judicial Service, where different local issues concerning to preliminary inquiry and the full-fledged departmental enquiry and further the scope of judicial review were the questions for consideration.

But, here, this Court is dealing with a case where the petitioner was under a contract service, having contractual obligations stipulated in the engagement letter itself.

In the case in hand, the petitioner was afforded with reasonable opportunity to defend his case. He has submitted his representation controverting the allegations leveled against him, which were duly considered by the competent authority of the respondents. One of the conditions stipulated in the engagement is that the extension of the service of the contractual period is subject to satisfactory performance of the duties the petitioner was entrusted upon. The respondents after due consideration found the performance of the duties is unsatisfactory. He was afforded with all the opportunities. So, in my opinion, he cannot urge that he was not afforded with reasonable opportunity.

In the instant case, the authorities concerned keeping in mind the doctrine of fairness, inquired into and evaluated the performance of the petitioner in discharging his duties. Thereafter, after careful scrutiny he was served with the show-cause notice highlighting the factum of his inefficiency in discharging his duties. In my opinion, there is no embargo upon the competent authority to examine the question about the suitability of the petitioner before his continuation, and thus, acting bona fide in that behalf, the authority has also given a chance to the petitioner to explain. Such an inquiry was held only for the purpose of deciding whether the contractual appointment of the petitioner would further be extended or not. There is no allegation made by the petitioner that the respondents had acted with mala fides. It is not the case of the petitioner that the termination of the petitioner was actuated with any motive or malice on the part of the respondents. No argument of any substance was advanced by the learned counsel for the petitioner to press the point of mala fides. More so, there is no allegation against the respondents that due to some other extraneous reasons his service was terminated or the foundation of termination order was based on some other reasons suppressing the actual state of facts where the court has to lift the veil behind the curtain.

Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself[(1979) 4 SCC 642, SCC p.658, para 29]. (emphasis supplied)

In Rama Varma Bharathan Thampuram v. State of Kerala, (1979) 4 SCC 782 V.R. Krishna Iyer, J. speaking for a three-Judge Bench held that one of the attributes of quasi-judicial functioning is the recording of reasons in support of decisions taken and the other requirement is following the principles of natural justice. The learned Judge held that natural justice requires reasons to be written for the conclusions made(see SCC p.788, para 14 : AIR p.1922, para 14).

Again, I may profitably refer to the case of State of U.P. vs. Kaushal Kishore Shukla reported in (1991) 1 SCC 691 had laid down:[SCC pp.697-98, paras 6 and 7]

"2. In the context of the provisions contained in the Rules this Court in State of U.P. v. Kaushal Kishore Shukla [(1991) 1 SCC 691 : 1991 SCC (L&S) 587 : (1991) 16 ATC 498] has laid down: (SCC pp. 697-98, paras 6 and 7)

"Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.

A temporary government servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servants. A temporary government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant."

In that case an adverse entry had been awarded in the year 1977-78 that the work of the employee was poor and he should work hard and take interest in the work and there was report of a preliminary inquiry on a complaint with regard to unauthorised audit by the employee. This Court held that the termination of the services of the employee in those circumstances could not be held to be by way of punishment so as to attract Article 311(2) of the Constitution."

The said principle was further reiterated in the case of State of U.P. & Anr. vs. Ram Krishna & Anr. reported in (1999) 7 SCC 350.

As I said earlier, after conscious consideration of the reply of the petitioner, the competent authority held that to keep pace with the spirit of MGNREGA Act and the guidelines thereunder, the continuation of the service of the petitioner as Technical Assistant would be detrimental to achieve the object and purpose for which the Scheme and the Act are meant for, and by a reasoned order his service was terminated, being found to be unsatisfactory. In this background, in my considered opinion, the doctrine of fairness is sufficiently complied with and it is not open to the petitioner to invoke the provision of Article 311 of the Constitution for the simple reason that the inquiry which ultimately led to his termination was held only for the purpose of deciding whether power to extend or renew the contract should be exercised.

For the reasons stated above, I am unable to persuade myself to accept the submission of learned counsel for the petitioner that there was premeditation or some hostile motive behind the impugned order of termination and the termination order carries stigma which may affect the future prospect of the employment of the petitioner. Rather, in the impugned order of termination, the competent authority had explained the reasons why his reply/representation was not acceptable to the respondents. In this circumstance, the reasons assigned in the order of termination, in my considered view, should not be treated or characterized as stigmatic. In the context of the case, a full-fledged formal departmental enquiry, in my opinion, is not called for. In the context of the case, if there is any breach of contractual obligations on the part of the respondents, then, proper remedy for the petitioner is to claim damage by way of appropriate proceeding in a competent court of law.

Having held so, I find no merit in the writ petition, and accordingly, the same stands dismissed. However, there shall be no order as to costs.