State of Assam and Others vs Badan Chandra Dihingia

Heard learned Amicus Curiae for the Respondent.

This appeal is directed against the judgment dated 18.5.93 delivered by a learned Single Judge of this Court in Civil Rule No. 374/90.

The Writ Petitioner Respondent approached this Court with a petition challenging the verbal suspension order dated 17.8.71 from the post of Khalasi wich he claimed to be holding as permanent, though in fact he was employed merely on work-charge basis. The learned Single Judge directed his reinstatement with 50% back wages. Hence this appeal.

Facts as now revealed are that the Petitioner was working as a work-charged Khalasi at the relevant time. He was arrested in G.R. Case No. 371/68 and was convicted u/s 326 IPC by A.D.M. (J), Tinsukia vide judgment dated 17.8.71, and sentenced to undergo four months R.I. The Petitioner availed of two days casual leave w.e.f. 16.8.71 to 17.8.71 and thereafter did not turn up to report on duty. There was no question of passing any verbal suspension order. On 17.8.71 is averred by the Petitioner. It is significant to note that he filed the present writ petition after 19 years of the alleged passing of verbal order of suspension that too suppressing the material fact of his prosecution and conviction.

The learned Single Judge appears to have been swayed by the long delay caused, as is evident from the following observation made by him.

This case illustrate a classical example as to how a citizen is suspended animation to receive justice for long 26 years. The Petitioner was working as Khalasi in a permanent capacity for about 6 years 7 months under the establishment of the Executive Engineer, Brahmaputra Flood Control F and D Department in the circle of Dibrugarh District. It is averred in the petition that the Petitioner was suspended on 17.8.71 verbally without assigning any reason. Since then he has been under suspension till today.

It is well settled principle of law that quick justice is a sine quo non of Article 21 of the Constitution. Keeping a man suspended animation for long 26 years to get justice is against the principle enshrined under Article 21 of the Constitution of India.

Writ jurisdiction is essentially an equitable jurisdiction and one who seeks equity must come with clean hands. Indisputably, these was suppression of a material fact namely arrest, prosecution and conviction u/s 326 IPC on the part of the Petitioner. Secondly, what appears to have escaped notice of the learned Single judge is the inordinate unexplained delay on the part of the Petitioner. What was he doing or waiting for all these 19 years? there is not a whisper about it.

If as claimed by the Petitioner he was a permanent employee, he ought to have placed his appointment letter/order on record. In any case the court should have satisfied itself before passing any order. Even if it was to go ex-parte, learned Amicus Curiae urged that a worker can not remain on work charge basis for six-seven years. Firstly, if is the Petitioner''s claim that he was in scrvice for six seven years without any documentary support by the Appellant State. Secondly, it was a petition for regularisation in service. We are not called upon to determine the nature of Petitioner''s employment nor was it an issue directly involved even before the learned Single Judge. The issue was about Petitioner''s suspension.

Apart from delay and latches on the part of the Petitioner, suppression of material fact was by itself enough to disentitle him from claiming any relief from this Court in exercise of its jurisdiction a candid disclosure of all material facts by the Petitioner is a sine quo non invoking writ jurisdiction.

It was urged by the learned Amicus Curiae that it was the duty of the employer to apprise the employee of the grounds for discontinuation in service on any account either suspension or termination. As a proposition of law, the submission may be generally acceptable in case of a permanent employee. But in case of a worker on work charge basis, who does not report on duty for whatever reason, how can it be expected of an employer to inform him. There is no rule which requires such intimation and above all one can not overlook the suppression of fact on the part of the Petitioner, who arrested for offence punishable u/s 326 IPC and eventually convicted. Now it can not be said that the officer concerned should seek and search him either at the Police Station or the Jail to inform him that he had been suspended. When on his release he did not report on duty. He was merely a work-charge employee and not a permanent Khalasi as claimed by him.

In this view of the matter the petition ought to have been dismissed. The impugned judgment is liable to be set aside, it is accordingly set aside and the petition dismissed with no order as to costs.