T.A. Thomas vs The Chairman, Andaman Adim Janajati Vikas Samiti

Satyabrata Sinha, J.—This application is directed against an order of termination dated January 31, 1996 as contained in Annexure ''D'' to the writ application whereby and whereunder the services of the Petitioner were terminated with immediate effect, as per terms and conditions of his appointment order No. 2 dated January 28, 1978, and he was asked to collect one month''s pay from the Cashier, Andaman Adim Janajati Vikas Samiti.

The fact of the matter lies in a very narrow compass.

By reason of an offer of appointment dated January 28, 1978 as contained in Annexure ''A'' to the writ application, the Petitioner was appointed as an Assistant in the Office of the Chairman of the Respondent, inter alia, on the following conditions:

The services of Shri T.A. Thomas will be at the disposal of the Samiti and will be liable for termination by one month''s notice from either side or one month''s pay in lieu thereof.

On or about September 16, 1988, the Petitioner was promoted on the recommendation of the Staff Recruitment Committee, to the post of Special Assistant on regular basis. However, a charge sheet was issued as against the Petitioner in terms of a memorandum dated September 23, 1991, as contained in Annexure ''C'' to the writ application. A disciplinary proceeding was initiated and the same had been continuing when the aforementioned impugned order dated January 31, 1996 was issued.

The aforementioned fact is not denied or disputed by the Respondents. In fact, in the affidavit in opposition, charge enumerated as against the Petitioner in terms of Annexure ''C'' to the writ application had been reiterated. It has been stated that the Petitioner was a corrupt official both in para. 3(x) as also in para. 9 of the affidavit-in-opposition. Despite the same, in para. 10 of the opposition, it has been stated that the termination of his service was a termination simplicitor without any stigma and there was no legal bar to terminate the service of the Petitioner in terms of the offer of appointment.

Mr. Roy appearing on behalf of the Petitioner has raised a short question in support of this application. Learned Counsel submits that as a disciplinary proceeding had been initiated against the Petitioner, the action on the part of the Respondent in issuing the aforementioned order of termination must be held to be mala fide. In any event, according to the learned Counsel the provision contained in the offer of appointment as contained in Annexure ''A'' to the writ application to the effect that the service of the Petitioner can be terminated on giving one month''s notice or one month''s pay in lieu thereof, is unconstitutional.

Mr. Mondal appearing on behalf of the Respondents, however, submits that it is not illegal to take recourse to the provision of offer of appointment during pendency of departmental proceeding.

It is not a case where the Petitioner was appointed on temporary basis. It is also not a case where the Respondents found that the services of the Petitioner were no longer required because of the exigency of the situation. Admittedly, the Petitioner was appointed as a regular employee and he was also promoted to a higher post as a regular employee.

It is not disputed that the Respondent is a State within the meaning of Article 12 of the Constitution of India. The Respondent being a State within the meaning of Article 12 of the Constitution of India, must act as a model employer. It cannot take recourse to the practice of hire and fire. The condition laid down in the offer of appointment to the effect that such service of an employee can be terminated on one month''s notice or upon payment of one month''s salary in lieu thereof, has been held to be violative of Article 14 of the Constitution of India as also Section 23 of the Indian Contract Act, being opposed to public policy. Reference in this connection may be made to the case of Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, and in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, In the aforementioned two cases, the Apex Court clearly held that a statutory authority or any other authority within the meaning of Article 12 of the Constitution of India cannot take recourse to the theory of hire and fire. In view of the fact that such a provision has been declared unconstitutional, the impugned order of termination of service dated January 31, 1996 in terms of the conditions of appointment, must be held to be invalid in law and liable to be quashed.

Furthermore, in the instant case; as noticed hereinbefore, a departmental proceeding had been initiated against the Petitioner for his alleged gross misconduct. According to the Respondents, the Petitioner is a corrupt official. It is now a well settled principles of law that even if an order of termination may ex facie appear to be a termination simplicitor, the court is not precluded from unveiling the mask and find out real cause for termination of service of such employee.

In the instant case, the Respondents themselves have categorically state in their affidavit-in-opposition that the Petitioner was a corrupt official. Thus, there cannot be any doubt whatsoever that the order of termination is not an order of termination simplicitor, but the impugned order had been issued by way of or in lieu of punishment despite the fact that a disciplinary proceeding had been initiated against the Petitioner.

For the reasons aforementioned, I am of the view that the impugned order cannot be sustained. It is accordingly, quashed and the Petitioner is directed to be reinstated back in service with back wages. However this order shall not stand in the way of the Respondents to continue and complete the disciplinary proceeding initiated against the Petitioner and pass an appropriate order in accordance with law.

The application is allowed with the aforementioned observation and directions, but without any order as to costs.