Sribas Ghosh Vs the State of Assam and 4 Ors.

Heard Mr. B.D. Das, learned senior counsel assisted by Mrs. R. Deka, learned counsel for the writ petitioner. Also heard Mr. R. Dhar, learned Standing Counsel, PWD, Assam, appearing for the official respondents.

¶25

The writ petitioner while working as a Non-Regular Muster Roll worker was dismissed from service vide order dated 18/01/2024 issued by the Executive Engineer, PWD, Silchar and Udarbond Territorial Road Division, Silchar. In the order dated 18/01/20224, it has been mentioned that the service of the petitioner is being terminated on account of the fact that he was apprehended on 05/11/2022 after accepting a bribe of Rs. 5000/- and was taken into Police custody.

¶26

Contending that the order of termination from service dated 18/01/2024 is ex-facie stigmatic, Mr. B.D. Das, learned senior counsel for the petitioner submits that such an order could not have been issued by the authorities without holding a regular departmental enquiry.

¶27

By referring to the decision rendered by this Court in the case of Partha Pratim Saikia Vs. The State of Assam and 7 others [WP(C) 4061/2023] and the batch of connected writ petitions [dated 25/02/2025], Mr. Das has argued that after the aforesaid decision of the Court, law is firmly settled that a stigmatic order of dismissal from service cannot be issued without giving an opportunity of being heard to the employee. Contending that this is a fit case where the order of dismissal from service ought to be set aside and a direction be issued to reinstate the petitioner, Mr. Das submits that the writ petition deserves to be allowed with at-least 50% back wages.

¶28

Opposing the said arguments, Mr. R. Dhar, learned Standing Counsel, PWD, has submitted that the writ petitioner is not a Government servant but he is merely a Muster Roll worker. As such, the provisions of Assam Service (Discipline & Appeal) Rules, 1964 would not be attracted in his case. Mr.

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Dhar has also made an attempt to distinguish the judgement rendered in the case Partha Pratim Saikia (Supra) by contending that unlike the present case, no prior show cause notice was issued by the authorities before issuing stigmatic order of dismissal from service in that case. Mr. Dhar further submits that in the present case, a show cause notice was, in fact, issued to the petitioner and he had also submitted his reply. Therefore, he cannot claim that the order of dismissal has been issued in violation of the Principles of Natural Justice.

¶31

I have considered the submissions advanced at the Bar and have also gone through the materials available on record.

¶32

There is no dispute about the fact that at the time when the writ petitioner was dismissed from service, he was working as a non-regular Muster Roll worker under the Executive Engineer, PWRD, Silchar and Udarbond Territorial Road Division, Silchar. On 05/11/2022, the petitioner was arrested in connection with ACB PS case No. 53/2022 registered under section 7(a)/13(2) of the P.C. Act, 1988 on the allegation of having accepted bribe and was taken into judicial custody. Consequently, by invoking Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the petitioner was placed under suspension. Thereafter, a departmental proceeding was initiated against him by issuing show cause notice dated 03/02/2023 whereby, as many as 6(six) different allegations including the allegation of lack of integrity have been leveled against the petitioner.

¶33

After receipt of the show cause notice dated 03/02/2023, the petitioner had submitted his show cause reply dated 05/09/2023, specifically denying all the allegations leveled against him. However, the impugned order of dismissal from service dated 18/01/2024 was issued without holding any further enquiry into the matter or recording any reason for not doing so.

¶34

It is no doubt correct that the allegations brought against the petitioner are quite serious and if there is any iota of truth as regards those allegations, the petitioner may have to suffer major penalty. However, the question involved in this writ proceeding is not as to whether the petitioner is guilty in respect of the allegations brought against him but pertaining to the correctness of the procedure adopted by the authorities, while dismissing him from service.

¶35

Law is well settled that when an order of dismissal from service is issued to an employee, which is stigmatic in nature, proper compliance of the principles of natural justice would be a sin-equa-non, regardless of whether it is the case of a Temporary/Casual/Muster Roll/Contractual employee. In the case of Ali Ahmed Barbhuiya vs. State of Assam and others [WP(C) 2977/2003] , which was followed in the subsequent decision rendered by this Court in the case of Partha Pratim Saikia (Supra) , the aforesaid aspect of the matter has been gone into and the law

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has been laid down.

¶38

In the present case, it is correct that a show cause notice was issued to the petitioner to which he had also replied. However, after receipt of the reply of the petitioner, the respondents had chosen not to hold any enquiry and instead, dismiss him from service. It is not k own as to in what manner, the reply submitted by the petitioner had been dealt with

¶39

Mr. Dhar has submitted that since the petitioner was not a Government servant, the provisions of Assam Services (Discipline and Appeal) Rules, 1964, would not be applicable in this case. Even assuming that the said proposition is correct, even then, the show cause notice having been issued by quoting Rule 9 of the Rules of 1964, the respondents ought to have notified the petitioner that the provisions laid down under the Rules of 1964 would not be followed in this case. However, no such intimation was given to the petitioner. Notwithstanding the same, major penalty of dismissal from service, within the meaning of the Rules of 1964, was awarded to him without following the procedure laid down in Rule 9 of the Rules of 1964.

¶40

There is nothing on record to indicate that the provisions of the Rules of 1964 have been exempted in case of a Muster Roll Worker. Therefore, as long as the authorities follow the procedure prescribed under the Rules of 1964, it would be mandatory for them to bring the process to its logical end in accordance with the provision of the Rules of 1964. If the Rules of 1964 are not applicable in the case of the writ petitioner, then a separate procedure, in compliance with the principles of natural justice, ought to have been adopted by the respondents, which was also not done in this case.

¶41

Once the petitioner is subjected to the provisions of the Rules of 1964 by issuing formal notice containing specific charges, this Court is of the opinion that it would be impermissible for the authorities to abandon the said process midway, only to adopt a completely different procedure, that too without putting the petitioner on notice. This is exactly what has happened in the present case. Such a recourse, in the opinion of this Court, would not only be entirely arbitrary but would also be violative of the principles of natural justice.

¶42

For the reasons stated herein above, the impugned order dated 18/01/2024 is held to unsustainable and hence, the same is hereby set aside.

¶43

The petitioner is directed to be reinstated in his original post of non-regular Muster Roll Worker within two weeks from today.

¶44

It is, however, made clear that if the department desires to proceed against the writ petitioner afresh, it would be open for them to do so but after reinstatement of the petitioner and by following

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the due process of law.

¶47

Upon reinstatement, it would also be open for the respondent authorities to place the petitioner under suspension, if so advised.

¶48

With the above observations, the writ petition stands disposed of.

¶49

There shall be no order as to costs.

¶50

JUDGE