Mrs Yotingla Sangtam Vs the State of Nagaland and 4 Ors.

Heard Mr. L. Likhase Sangtam, learned counsel for the petitioner. I have also heard Ms. S Chang, Learned Government advocate for all the state respondents No 1 to 5.

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2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner challenged the impugned Transfer Order No. ENCP/E325/5057-60 dated 20.12.2017 and the subsequent Termination order no. ENCP/E-314/Pt-II/3554-57 dated 27.10.2023.

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3. The case of the petitioner is that vide order dated 10.11.2015 issued by the respondent no. 3, she was appointed as W/c Bill Assistant in the scale of Rs.100-25-1125-30-1425-35-1880/-PM, and posted under the establishment of Executive Engineer (E) Division, Tuensang. Accordingly, she joined her service and had been discharging her duties since appointment in the said establishment. To her utter shock and dismay, she received the impugned termination order dated 27.10.2023, without any prior notice or show cause. No ground for termination whatsoever has been mentioned in the termination order, it only stated the service of the following persons are hereby terminated w.e.f., 20.10.2023. The termination order is reproduced below:

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Page No.# 3/8

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“GOVERNMENT OF NAGALAND DEPARTMENT OF POWER OFFICE OF THE ENGINEER-IN-CHIEF NAGALAND: KOHIMA

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OFFICE ORDER NO. 389

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The service of the following persons are hereby terminated w.e.f. 20.10.2023.

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SL. No	Name & PIMS Code	Designation	Division
1	Shri. S. Khamye Konyak, POW04012	OMS Fixed Labour	Mon
2	Smti. Yotingla Sangtam, POW02425	OMS Billing Assistant	Mon
3	Shri. M. Thremthrei, POW03889	OMS Jugali (E)	Mon
4	Shri. Limayanger, POW02938	OMS Jugali (E)	Mkg (E)
5	Shri. Talirenba, POW02947	OMS Jugali (E)	Mkg (E)
6	Shri. Chamwang Konyak, POW04120	OMS Fixed Labour	Mkg (E)
7	Shri. Wapong M. Imchen, POW05500	OMS Fixed Labour	Mkg (E)

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(Er. Moa Aier) Engineer-in-Chief Department of power Nagaland, Kohima”

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4. Later on, the petitioner came to learn that the impugned termination order was issued alleging that she failed to comply with a transfer order No. issued on 20.12.2017. By the said transfer order No. ENCP/E-

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Page No.# 4/8

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325/5057-60 dated 20.12.2017, the petitioner is sought to be transferred from the establishment of Executive Engineer (Elect) Division, Kiphire to Executive Engineer (Elect) Division, Mon with immediate effect.

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5 . The grievance of the petitioner is that she was never served with the impugned transfer order dated 20.12.2017, and in fact, neither she nor the office of the Executive Engineer, Electrical Division, Kiphire, under whom she was serving ever received the said communication. She continued to discharge her duties uninterrupted and was drawing regular salary from the said division till May,2024.

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6. Upon learning of the termination, the petitioner made a detailed representation on 02.05.2024 before the respondent No.3, through the Executive Engineer, Electrical Division, Kiphire (Respondent No.4) who also confirmed by his forwarding letter dated 03.05.2024, addressed to the respondent No.3 that his office never received the alleged transfer order, and that the petitioner had been regularly working and drawing monthly salary until the termination order was served. In view of the above, the Executive Engineer also recommended reinstatement of petitioner’s services stating that it has resulted due to gap in the official correspondences.

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7 . The forwarding letter of the Executive Engineer, Electrical Division, Kiphire dated 03.05.2024 being relevant is reproduced herein below:

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“GOVERNMENT OF NAGALAND

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DEPARTMENT OF POWER

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OFFICE OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION KIPHIRE NAGALAND

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Page No.# 5/8

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No. KPED/WC-1/2024-25/58 Dated Kiphire, the 3 May 2024

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To

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The Engineer-in-Chief Department of Power Nagaland, Kohima

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Sub: Regarding Termination of service in respect of SmtiYotinglaSangtam, Bill Assistant (W/C) under Kiphire Electrical Division.

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Sir,

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In inviting a reference to the above cited subject, I have the honour to forward herewith an application received from SmtiYotinglaSangtam, Bill Assistant under Kiphire Electrical Division, regarding her termination from service as Bill Assistant(W/C).

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In this regard, it is to state that she is regularly performing her duties under SDO(E). Kiphire. However, it is reported that her service has been terminated for not joining Mon Electrical Division on transfer (Vide order No. ENCP/E-325/5057-60, DtdKma the 20th Dec 2017), which she claims was uninformed nor a copy received. Despite her termination from service (Vide Order No. ENCP/E-314/Pt-II/3554-57, DtdKma the 27th Oct 2023), she was yet again unaware and continued to perform her duties regularly till date.

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In light of the above cited reasons, it is sincerely requested to kindly re-instate her service as it has resulted due to gap in the official correspondences.”

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8 . The State respondents, in their counter affidavit, claims that the transfer and termination order were endorsed to the petitioner and to the office of the Executive Engineer, Kiphire as well as Executive Engineer, Mon, and hence, there is no procedural lapse, hence, no interference of this Hon’ble Court is called for. It is further contended that the petitioner failed to respond to the annual seniority list since 2018, and despite of repeated reminders to submit monthly disposition return regularly, the Electrical Division, Kiphire where the petitioner was working has not

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Page No.# 6/8

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submitted the same which demonstrates their lack of diligence.

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9 . Points for Determination:

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(i) Whether the transfer order dated 20.12.2017 was validly communicated to the petitioner?

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(ii) Whether the termination order issued without notice or inquiry violates the principles of natural justice?

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(iii) Whether the petitioner is entitled to reinstatement?

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10. It is settled principle that transfer orders must be effectively communicated to the employee concerned for them to have any binding legal effect. Mere dispatch of an order without proof of actual service and acknowledgment cannot amount to proper communication. It is trite that an uncommunicated order has no legal effect. The Supreme Court in State of Punjab v. Amar Singh Harika, reported in AIR 1966 SC 1313 held that :

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“An order becomes effective only when it is communicated to the person concerned.”

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11. In the present case, both the petitioner and the Executive Engineer, Electrical Division, Kiphire have categorically stated that the transfer order was never received. This assertion is corroborated by the fact that the petitioner continued working and received her salary without interruption. The mere claim of having dispatched the transfer order without proof of actual receipt cannot be accepted as valid communication in law.

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Page No.# 7/8

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12 . The termination order as could be seen from the fact of it does not disclose any grounds for termination. It was passed without issuing a show cause notice or giving the petitioner an opportunity to be heard. It is trite law that even in cases of contractual or temporary employment, termination for alleged misconduct or non-compliance with transfer must be preceded by adherence to principles of natural justice.

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13. In D.K. Yadav v. J.M.A. Industries Ltd., reported in (1993) 3SCC 259 , the Hon’ble Supreme Court held:

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“The principles of natural justice are part of Article 14 of the Constitution and must be followed before terminating services, even in absence of statutory requirement.”

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14 . The respondent also admitted that the petitioner did not join the transferred place and failed to raise objection to the seniority list. However, both these consequences arose due to the failure to communicate the transfer order, and cannot be held against the petitioner who was unaware of any such order.

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15 . In light of the facts and binding judicial precedents, this Court finds that the transfer order dated 20.12.2017 was never communicated effectively and thus never attained legal validity. The termination order, passed without any inquiry or notice, is in violation of natural justice and is liable to be quashed. The petitioner continued to discharge her duties in good faith, unaware of the transfer, and therefore, no misconduct can be attributed to her.

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Page No.# 8/8

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16. Accordingly, the following directions are issued:

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(i) The Transfer Order No. ENCP/E-325/5057-60 dated 20.12.2017 and the subsequent Termination order no. ENCP/E-314/Pt-II/3554-57 dated 27.10.2023 are hereby quashed and set aside.

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(ii) The respondents are directed to reinstate the petitioner in service forthwith, with continuity of service.

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(iii) The petitioner shall be entitled to 50% back wages for the period she was out of service, subject to adjustment of any amounts paid or recovered during this period.

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(iv) The petitioner shall report to her last place of posting within three weeks from the date of this order.

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(v) The respondents are at liberty to initiate appropriate action in future, strictly in accordance with law and after affording due opportunity of hearing.

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17. With the above, the writ petition is allowed and disposed of. No order as to cost.

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JUDGE

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Comparing Assistant

Mrs Yotingla Sangtam v. the State of Nagaland and 4 Ors.

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Mrs Yotingla Sangtam v. the State of Nagaland and 4 Ors.

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