Ditul Debbarma vs State Of Tripura And Others
2022 Latest Caselaw 512 Tri

                           HIGH COURT OF TRIPURA
                                 AGARTALA
                               WP(C)No.225 of 2020

 Ditul Debbarma
                                                                    ..........Petitioner(s)
                                        Versus
 State of Tripura and Others
                                                                   ..........Respondent(s)

 For Petitioner(s)                  : Mr. S. Bhattacharjee, Adv.
 For Respondent(s)                  : Mr. D. Bhattacharya, G.A.
                                      Mr. P. Saha, Adv.

                     HON'BLE MR. JUSTICE S. TALAPATRA

                             Judgment & Order(Oral)

 18/05/2022

Heard Mr. S. Bhattacharjee, learned counsel appearing for the

petitioner as well as Mr. D. Bhattacharya, learned G.A. assisted by Mr. P. Saha,

learned counsel appearing for the respondents.

2. The petitioner was engaged as the Technical Assistant (JE) for

implementing various projects relating to MGNREGA works. As stated by the

petitioner, on 21.11.2018, he abruptly received a notice [Annexure-3 to the writ

petition] whereby he has been terminated from his contractual job as Technical

Assistant under the scheme of MGNREGA. It has been stated in the said notice that

the petitioner had been reporting to his project irregularly, not attending the Office

timely and also remaining absent from the Office and the prescheduled meetings.

The petitioner was responsible for supervising all the schemes being implemented

by the village committees, but his performance was found very dissatisfactory for

which the progress of IHHLs under SBM(G) & MGNREGA and housing schemes

under PMAY(G) have been adversely affected.

3. Serious allegations those have been made are that as a result of his

dereliction in duty, construction of PMAY(G) houses of 2016-17 are not yet

completed, even after lapse of two years, though it is one of the Flagship

Programme of Hon'ble Prime Minister & State Government.

Further, it has been alleged that for his dereliction of duty, Open Defecation

Free (ODF) another Flagship Programme of the Central Government, has also been

adversely affected. It has been also alleged that for his wilful negligence, gross

carelessness and lack of attention or negligence to his duties, the respondents

suffered serious detriment.

4. The petitioner having received the said notice had filed a

representation on 17.02.2020 alleging the violation of principles of natural justice as

he was not given any opportunity to defend himself. The said representation dated

17.02.2020 [Annexure-4 to the writ petition] has not been responded to by the

respondents. Finding no other alternative, the petitioner had approached this court

urging directions on the respondents to set aside the said notice of termination

dated 22.11.2018 and to reinstate the petitioner in the position of Technical

Assistant (JE).

5. Mr. S. Bhattacharjee, learned counsel appearing for the petitioner

has submitted that under the similar circumstances, this court in Sri Umesh Kalai

versus State of Tripura and Others [judgment dated 11.02.2020 delivered in

WP(C)No.22 of 2019] has observed that when an order of this nature which results

into adverse civil consequences and also stigmatizes the petitioner is passed, a bare

minimum opportunity of hearing ought to be granted. Without a show cause notice,

without pointing out the nature of so called negligence and defiance of the orders of

the authority, the competent authority has unilaterally concluded that the

petitioner's service on such grounds was required to be terminated. When the

petitioner had continued, although on contractual basis for about 10 years, for

which Umesh Kalai was remunerated regularly from the government exchequer,

before terminating his engagement, that too on the ground of negligence and

misconduct was essential opportunity of hearing.

Having observed thus, the order of termination was set aside directing the

respondents to reinstate the petitioner. However, no back wage was directed to be

paid.

6. Mr. D. Bhattacharya, learned G.A. assisted by Mr. P. Saha, learned

counsel appearing for the respondents has produced the photo copies of the

materials which were relied on for passing the impugned order of termination.

Materials are catalogues of the projects, where the petitioner failed to supervise for

completing them within the planned period. Communications in respect of

construction of the houses of the PMAY(G) projects are also placed along with some

other papers.

7. This court has glanced through those copies, but the role of the

petitioner cannot be gathered. It is thus apparent that the impugned order was

totally based on the oral reports or on the basis of the experience of the District

Magistrate and Collector, Dhalai, Jawharlalnagar.

8. Mr. Bhattacharya, learned G.A. has strenuously submitted that as

from the records the outcome is irresistible, it is useless to provide someone further

opportunity for building up his defence.

9. This court is unable to accept the said reason as the fundamental

attribute of the fairness of action is the obligation of the authorities to provide

reasonable opportunity, not to provide or condemn someone without hearing. This

is also component of the principles of natural justice which is embedded in the

Constitution of India vide Article 14. A catena of cases can be referred in this

regard. A person cannot be faulted with or stigmatized without providing him the

reasonable opportunity of defence.

10. True it is that the provision under Article 311(2) of the Constitution

of India will not be available to the petitioner, but a showcause laying down the

reference where he has shown dereliction of duties and where for his negligence,

the competent authority has suffered adversely and how he had shown his

disobedience to the lawful orders' cannot be avoided. In this case, that has not

been done. In the notice, the allegations have been made. But the authority did not

feel the necessity of providing an opportunity to the petitioner to have his say. By

the impugned notice, he has been communicated that he is flatly terminated. This

cannot, by any stretch of interpretation, stated to be fairness of action.

11. Having observed thus, the impugned notice containing the order of

termination, dated 21.11.2018 [Annexure-3 to the writ petition] is interfered with

and set aside. The petitioner shall be reinstated within two weeks from the day

when the petitioner will furnish a copy of this order. However, the respondents are

given liberty to inquire into the allegations after providing the petitioner reasonable

opportunity, so that he can have his say in the matter. Thereafter, the appropriate

order would be passed by the competent authority. There would be no order as to

the back wages. But from the day of joining the petitioner shall be paid his salaries

in terms of the contract till the inquiry, if taken up by the respondents, comes to an

end.

In terms of the above, this writ petition stands allowed and disposed

of.

There shall be no order as to costs.

JUDGE

Sabyasachi B