Uttam Deb vs State Of Tripura And Ors

[1] Heard Mr. B. Debnath, learned counsel appearing for the petitioner as well as Mr. P. Maishan learned counsel appearing for the respondents No. 1, 2, 3, 4, 5, 6 and 7. None appears for the respondents No.8 and 9 despite being served.

[2] By means of the order dated 19.11.2018 (Annexure-B to the writ petition), the petitioner's engagement as the pump-operator has been terminated and the respondent No.8 has been engaged in his place. Mr. Debnath, learned counsel appearing for the petitioner has submitted that guidelines for handing over the maintenance and operation of rural water supply schemes to the Panchayat Raj and Autonomous District Council area is available under the Memorandum No.F.6(1)PHE(W)/98 dated 10.05.2000 (Annexure-D to the writ petition). Clause 11 of the said guidelines provides that performance of 'the handing over schemes' will be reviewed after one/two years of handing over and subsequent decision regarding performances will be reviewed by the Government. Definitely, it shows that if under-performance is located, the authority has the right to take the necessary action but in the scheme there is no provision empowering the authority to terminate the engagement of pump operators.

[3] According to the petitioner, the termination order as embodied in the order dated 29.11.2018 (Annexure-B to the writ petition) is grossly arbitrary and an example of colourable exercise of power. The reply that has been filed by the respondent has made it certain that some allegations against the petitioner was discussed in the meeting of the Panchayat Samiti. The allegation as located is that the petitioner was not punctual in discharging his duties. There cannot be any amount of dispute that the Panchayat Samiti can exercise their power to terminate but when allegations are brought against a person that person is entitled to have reasonable opportunity to explain or to have his say. To have a reasonable opportunity is a right emanated from fairness principle.

[4] The respondents have disputed the allegation of arbitrariness and colourable exercise of power and to support their contention they have pressed the minutes of the Gram Panchayat regarding the performance of the petitioner. But these documents were never pressed for comments from the petitioner.

[5] Mr. Maishan, learned counsel has emphatically submitted that the action has been taken is in terms of the guidelines contained in the memorandum dated 10.05.2000 [supra].

For purpose of further reference, the entire text of the impugned order dated 29.11.2018 is reproduced hereunder:

No.F.4(22)/AE/DWS/KMP/603-05 Government of Tripura Office of the Assistant Engineer DWS Sub-Division, Kamalpur Dhalai: Tripura

Dated, the Kamalpur 29/11/2018

To

The Executive Engineer

DWS Division, Kamalpur

Dhalai Tripura.

Subject: Regarding appointment of a Pump Operator at Noagaon Uria Basti under Noagaon Gram Panchayat under Durgachowmuhani RD Block.

Ref: No.F.12(16)/BDO/DCM/PANCH/MISC/2018-19/2964-2965, dated 19th Nov, 2018.

Sir,

In reference to the sub cited above, BDO Durgachowmuhani has appointed new pump operator, for uriabasti DTW scheme, to Sri Joyjit Mondal duly recommended by the Sri Manoy Kanti Deb, Hon'ble Minister, Youth affairs and Sport's Food and Civil supply consumers. Govt. of Tripura in place of Sri Uttam Deb, existing pump operator.

Copy of engagement letter is enclosed herewith for your further course of action please.

Enclo:- As stated

Yours Faithfully

Assistant Engineer DWS Sub-Division, Kamalpur Dhalai Tripura.

Copy to

i) B.D.O. Durgachowmuhani for information please.

ii) Sri Uttam Deb, Pump Operator, Uria basti DTW, You are requested to continue the Pump Operational duly until Joyjit Mondal join in place of you.

[6] From a bare reading of the said order dated 29.11.2018, it appears and bares that Sri Manoj Kanti Deb, Hon'ble Minister, Youth Affairs and Sports & Food and Civil Supplies and Consumers Affairs Department, Govt. of Tripura has directed the Executive Engineer, DWS Division, Kamalpur, Dhalai Tripura to appoint Joyjit Mondal (the respondent No.8) as the pump operator in Uriabasti, DTW scheme in place of the existing pump operator, the petitioner. The due process to issue the order of termination is not only conspicuous by its absence, but on the face of the said order 29.11.2018, it is surfaced that this order has been passed at the instance of the Hon'ble Minister who had no business to modulate any executive function assigned by the guidelines and the action under challenge is absolutely arbitrary and bears the brunt of colourable exercise of power. This court has no alternative but to quash such order.

Accordingly, the impugned order of termination stands quashed and it is directed that the petitioner shall be re-engaged within a period of 15 days from the receipt of the copy of this order. If there is any allegation against the petitioner, he shall be served with the show cause containing the details of allegations and the documents in support thereof and those are relied for purpose of supporting the allegation. Only after affording the opportunity to reply by the petitioner, the competent authority, as per the guidelines or as per the condition of the service, may take appropriate action.

In the result, the petition stands allowed and disposed of.

No order as to costs.