Momin Nath vs Dist. and Sessions Judge and Others

A.K. Patnaik, J.—Heard Mr. T.J. Mahanta, learned Counsel for Petitioner and Mr. B. Goswami, learned GA for Respondents.

The case of the Petitioner in this writ application is that by order dated 11.11.91 he was appointed as Peon in the Office of the Munsiff No. 1, Golaghat in purely temporary basis with effect from 4.10.91. Pursuant to the said order dated 11.11.91 of District and Sessions Judge, Golaghat, the Petitioner joined as a Peon in the office of the Munsiff. No. 1, Golaghat and has been working there from 4.10.91. On 12.1.94, the District and Sessions Judge, Golaghat terminated the service of the Petitioner with effect from 12.1.94 and in lieu of notice, the Petitioner was allowed to draw one month''s salary. Aggrieved by the said order dated 12.1.94 the Petitioner moved this Court by filmg this writ application under Article 226 of the Constitution of India.

No counter affidavit has been filed on behalf of District and Sessions Judge, Golaghat in spite of the fact that notice has been served on him by registered post with A/D and the service has been made sufficient by order dated 8.3.96.

Mr. Mahanta, learned Counsel submitted that on a bare perusal of the order dated 12.1.94 it will be clear that the Petitioner has been terminated from service on the ground that he was appointed as Peon and attached to Shri A.C. Sarma, Munsiff No. 1, Golaghat. But as a matter of fact, the appointment order dated 11.11.91 annexed to this writ application would show that he was not attached to Sri A.C. Sarma, Munsiff No. 1, Golaghat but was appointed as Peon in the office of the Munsiff No. 1, Golaghat.

Mr. B. Goswami, learned GA, on the other hand, submitted that since the Petitioner was appointed as a Bungalow Peon and attached to Sri A.C. Sarma, Munsiff No. 1, Golaghat, on the transfer of Sri A.C. Sarma, Munsiff No. 1, Golaghat from the station, the service of the Petitioner was terminated. He submitted that he has received written instruction from the District and Sessions Judge to the effect that appointment of Bungalow Peon is made without any advertisement and without holding any interview/test, solely on recommendation of the officer concerned, the appointment is made purely on temporary basis with a condition that the incumbent is liable to termination as and when officer concerned is transferred or if the officer desires a termination of the incumbent during his tenure at the station. He submitted that since Sri A.C. Sarma, Munsiff No. 1, Golaghat is transferred, the service of the Petitioner is liable to be terminated.

The appointment order dated 11.11.91 issued in favour of the Petitioner by the District and Sessions Judge, Golaghat annexed to the writ application does not show that the Petitioner was appointed as Bungalow Peon, nor does the appointment order dated 11.11.91 show that the Petitioner was appointed and attached to Sri A.C. Sarma, Munsiff No. 1 Golaghat. Since there is nothing in the order dated 11.11.91 of the District and Sessions Judge, Golaghat to indicate that the Petitioner was appointed as Bungalow Peon and attached to Sri A.C. Sarma, Munsiff No. 1, Gglaghat, termination of the Petitioner from service cannot be done on the ground that his service was liable to be terminated on transfer of Sri A.C. Sarma, Munsiff No. 1, Golaghat.

It is however stated in the order dated 11.11.91 that his service was purely temporary and may be terminated at any time without any notice and without assigning any reason there of Thus, the employer has the right to terminate the service of the Petitioner, his service being purely temporary and liable to be terminated at any tune without any notice and without any reason. But the power of the employer in such appointment order to terminate the service at any time without any reason, is subject to Article 14 of the Constitution and therefore cannot be exercised arbitrarily.

In The Manager, Government Branch Press and Another Vs. D.B. Belliappa, the Supreme Court has held that even temporary Govt servant whose service is liable to be terminated without any reason or notice under the contract of service are entitled to the protection of Articles 14 and 16 of the Constitution of India.

In the instant case, the only reason given by the District and Sessions Judge, Golaghat in the impugned order dated 12.1.94 terminating the service of the Petitioner is that since Sri A.C. Sarma, Munsiff No. 1, Golaghat has been transferred from the station, the service of the Petitioner who was attached to Sri A.C. Sarma, Munsiff No. 1, Golaghat was no longer required in the office of the Munsiff No. 1, Golaghat. The aforesaid reason is fallacious as the apointment order dated 11.11.91 did not indicate that the Petitioner was appointed as Bungalow Peon and attached to Sri A.C. Sarma, Munsiff No. 1, Golaghat and instead it clearly indicates that he was appointed as a Peon in the office of the Munsiff No.1, Golaghat

For the reasons stated above, the impugned order dated 12.1.94 passed by the District and, Sessions Judge, Golaghat is arbitrary and violative of Article 14 of the Constitution and is accordingly quashed and the Petitioner be forthwith reinstated in service within a period of one month from the date of receipt of a certified copy of this judgment. and order by the District and Sessions Judge, Golaghat.

Letter dated 22.8.2000 of the District and Sessions Judge, Golaghat shall remain part of the record of this case.