John Vanlala vs State of Nagaland and Others

Manisana, J.—This is an application under Article 226 of the Constitution of India for issue of an appropriate writ of direction quashing the order dated 5.8.1974 passed by the Inspector General of Police, Nagaland, terminating the services of the Petitioner.

The facts of the case may briefly be stated. The Petitioner was appointed as a Constable Writer in and establishment of and Commandant, 2nd Battalion, Special Nagaland Armed Police, Mokokchung with effect from 28.2.66 by Commandant of the aforesaid Battalion. The appointment was purely temporary and could be terminated at any time after giving a 30 days notice from either side. Before he was appointed as such, the Petitioner was in the Indian Army. The Petitioner was discharged from, the Army in the year 1966 but no date of discharge is given in the petition. But in and counter of the Respondents, it is stated that the date of discharge was 9.3.66. Be that as it may the Petitioner was serving as a Constable Writer with effect from 28.2.66 as stated above. And Petitioner was again appointed as, Havilder on 15.3.66 within a month of his appointment as the, Constable Writer. Thereafter, on 21.1.70, the Petitioner was appointed to and post of. Sub-Inspector on promotion and was attached to the 4th Nagaland Armed Police Battalion, Thizama. However, under an order dated 5.8.74, the Inspector General of Police terminated the service of the Petitioner. The order of termination runs as follows:

Services of A.B. Sub Inspector Johan Lushai of 4th NAP Bn. are no longer required by this Department. His services will stand terminated on 3.9.74 (AN).

Sd/- L.S. Varma, I.P.S. Inspector General of Police, Nagaland, Kohima.

(emphasis added)

It is stated at the bar that the Petitioner was holding temporarily the posts of Havilder and Sub-Inspector. In para 19 of the petition, it is stated: "be has not been confirmed in the post". The counter of the Respondents also shows that the Petitioner was holding temporarily the said posts,

Shri N.N. Saikia, the learned Counsel for the Petitioner bas submitted that the impugned order of termination was by Way of punishment in violation of the Article 311 of the Constitution of India and the principles of natural justice and that the 30 days notice was not given to the Petitioner as he received" the notice dated 5.8.74. on 8.8.74.

The learned Advocate General, Nagaland, has submitted that the impugned order was a termination simpliciter and as such, there was no violation of Article 311 of the Constitution and the principles of natural justice and that the 30 days notice, was not required to be given to and Petitioner.

The question Which arises for consideration is that whether the impugned order of termination was by Way of punishment. In Anoop v. Govt. of India, AW 1964 SC 636, the Supreme Court has held that where the form of the order is merely comouflage of an order of dismissal for misconduct, it is always open to the court before which the order is challenged to go behind the form and as certain the true character of the order. In doing so, the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

In Nepal Singh Vs. State of Uttar Pardesh and Others, the Supreme Court has held that an order terminating the services of a temporary Government servant and ex facio innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as affecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its terral in order was passed in fact with a view to punishing the Government servant, it is punitive order which can be passed only after complying with Article 311. In each case, it is necessary to examine the entire range of and facts carefully and consider ''whether in the light of those facts the authority intended to punish the Government servant or, having regard to and character, conduct and suitability in relating to the post held by him it was intended simply to terminate his services. If the material against the Government servant on which the superior authority has acted and constitutes the motive and not the foundation of the order, and order to not passed by way of punishment and is merely an order of termination order simpliciter.

In the background of the above principles let us now examine and case in hand. And impugned order does not ex facio disclose that it was passed by way of punishment. The impugned order reveals that and services of the Petitioner were no longer required. Sri Saikia has drawn our attention to be, letter dated 3.9.74 (Annexure VI to the Petitioner) issued from the office of the Inspector General of Police on behalf of the Inspector General of Police, Nagaland, addressed to and Commandant, 4th NAP, Thizama in order to show that the order was passed by way of punishment. And letter dated 3.9.74 ruus:

Sir,

I am to refer to your letter No. IVBN (-23) 75/2494 dated 16.8.74 and to inform you that Sri John Lushat got himself enlisted in and Police Department by giving false particulars about his name and father''s name.

The Assistant Inspector General of Police, Mizoram has informed that there is no such person as John V. Lushai son of Shri Thenghunga Sailo from Lungchem village.

In view of the above the Inspector General of Police has decided not to keep him in the Force and accordingly termination notice was served on him.

Yours faithfully, Sd/- for Inspector General of Police, Nagaland, Kohima.

Mr. N.N. Saikia, learned Counsel for the Petitioner has submitted that the letter shows that there is allegation or Imputation to the effect that the Petitioner got himself listed in the Police Department by giving false particulars about his father name and that the Assistant inspector General of Police, Mizoram, after making an enquiry informed that there was no person as John V. Lushai son of Thenghunga Sailo in Lungchen village.

The next question which arises for consideration is whether the Court will send for official records connected with the said letter dated 3.9.74 to examine whether the termination was by way of punishment or not, In this connection we refer to a decision of the Supreme Court in State of Maharashtra v. Beeroppu AIR 1980 SC 42 in which the Supreme Court has held that there may be another kind of case where although the termination of the services is intended by way of punishment, the order is framed as a termination simpliciter. In such a case if the Government servant succeeds in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official record for the purpose of determining the truth. It is in such a case generally that the official records may be called for by and Court. It is not open to the Court to send for the official records on a mere allegation by and Government servant that and order is by way of punishment. For unless there is material on the record before and Court in support of that allegation, an attempt by the Court to find out from the record whether the termination of service is bated on and unsuitability of and Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into and official records for and purpose of determining the nature of the order on the basis of a mere allegation of the Government servant.

In view of and above decision of and Supreme Court, we are to examine whether the letter dated prima facie shows that the order was passed by way of punishment. In Ram Gopal Chaturvedi Vs. State of Madhya Pradesh, the Supreme Court has held that it was immaterial that and order was preceded by an informal inquiry into the conduct of the Government servant with a view to as certain whether he should be retained in service. In the case before the Supreme Court, there were complaints that the Special Magistrate (Motor Vehicle) Gwalior was associating with a young girl named Kurosri Laxroi. The Chief Justice of Madhya Pradesh made inquiries into the matter and on his return to Jabalpur the Chief Justice dictated note to the effect that the Magistrate was still maintaining the girl and he did cot enjoy good reputation at and places where he was posted before his posting at Gwallior and that the District Judge, Gwallior also informed and Chief Justice that the Magistrate was not honest and that In Collaboration with the Traffic'' Inspector he has taken money from accused persons in many cases under and Motor Vehicles Act. No chargesheet was served on the Magistrate nor was ''any departmental enquiry held against him. The High Court of Madhya Pradesh passed its resolution that the State Government should terminate the services of the Magistrate. Having regard to the resolution and State Government passed an order of termination simpliciter, in and context the Supreme Court has held as stated above. The Supreme Court, in Ramgopal (Supra) has further held that in such a case no question of following the principles of natural justice also arises.

The letter shows that it was written on the day of his retirement and that it was sent to the Commandant and that it was not written by and Inspector General of Police Nagaland himself and that the Inspector General of Police decided not to keep the Petitioner in and Force and that and letter shows that the enquiry was made by the Assistant Inspector General of Police, Mizoram, and not by any officer of Nagaland. Therefore, it is concluded that the enquiry that was made by, the Mizoram Police was an informal enquiry relating to the conduct in relation to post held by him with a view to ascertain whether and Petitioner would be retained in service and that and Inspector General of Police intended simply to terminate his services and that it cannot be said that the result of and enquiry was not the foundation for the termination of and services of the Petitioner in the light of the above discussion of the Supreme Court. In this view of the matter, the Petitioner has failed to show prima facie that the order was passed by way of punishment. Therefore, It is not required to send for connected records and no question of following and principles of natural justice arises in view of the above decisions of the Supreme Court.

The next question which arises for consideration is whether a 30 days notice was required to be given to Petitioner, And order of appointment to the post of Constable Writer (Annexure I to and counter of the Respondents) runs:

Office Order

Shri John Vanlala Lushai son of Pani Thuam Lushai is hereby appointed as Constable Writer in the establishment of the Commandant 2nd Battalion, Special Nagaland Armed Police, Mokokobung in the scale of pay of Rs. 100.2.5-110.3.131.4 155/- plus all other allowances admissible under and rules from time to time with effect from 28.2.1966 (F.N.)

The appointment is purely temporary and may be terminated at any time after giving 30 days notice from either side.

The appointment carries with it the liability to serve in any part of Nagaland.

Sd/- Major, Commandant 2nd BN SNAP Mokokchung, Nagaland (Tirlok Singh)

The appointment order shows that the Petitioner was appointed as a Constable Writer by the Commandant and that be could be terminated at any time after giving a 30 day notice from either side. The expression "either side" meaning either the Commandant or the Petitioner. His services could be terminated after the 30 day notice was one of the conditions of his service (hereinafter referred to as the "first conditions of service") But at the relevant time, the Petitioner was temporarily holding and post of Sub-Inspector. The service book of the Petitioner shows that he was appointed by and Inspector General of Police. The question is whether the "first conditions of service" would apply to and case. The scale of pay, the administrative control and cadre and establishment have been changed. Under the "first conditions of Service 1'', termination could be made by the Commandant but the Commandant cannot terminate and services of the Petitioner while he was holding the post of and Sub-Inspector. And appointment of the Petitioner to the post of Havildai 1 and Sub-Inspector in effect terminated the Petitioner from his services of temporary Constable Writer, and the appointment to the post of Havildar or Sub-Inspector was made on first conditions of services. Therefore, the "first conditions of service has become obsolete as the Petitioner accepted appointment to and post of Havildar and/or Sub-inspector. In this view of the matter, the "first conditions of services" will not be applicable to the present case and the conditions of service provided for the Sub-Inspector will be applicable. In view of the discussion above the 30 day notice for termination of the service of the Petitioner is not required.

The next question which arises for consideration is what is and conditions of services provided for termination of the services of the Petitioner at and relevant time. And learned Counsel on both sides have submitted at and bar that at the relevant time there was no rule in Nagaland for termination of services of a temporary Government servant of Nagaland particularly for the post of Sub-Inspector. The Petitioner also has not shown any rule relating to the termination of such a temporary Government servant. The Supreme Court in Dhingra v. Union of India AIR J958 SC 36, has held:

If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating barsis, then the very transitory character of and employment implies that the employment was terminable a anytimeto on reasonable notice given by the Government.

Therefore, in the absence of such rules, the implied term of such appointment was that it was terminable at any time on reasonable notice given by the competent authority. The Petitioner received the notice dated 5.8.74 on 8.8.74. The submission of the Petitioner is that there was shortage of 3 days. Even assuming that there was shortage of 3 days, about which we are not giving any opinion, and notice cannot be said to be unreasonable, Therefore, the contention of the learned Counsel for the Petitioner must fail and the petition is liable to be dismissed.

In view of the above discussions and conclusions we do not feel it necessary to discuss the other decision cited before us.

For the foregoing reasons, the petition is dismissed. No costs.