MADAN KUMAR KARKI Vs. STATE OF SIKKIM AND OTHERS
HIGH COURT OF SIKKIM
Madan Kumar Karki
State Of Sikkim And Others
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N. Bhargava, R. Dayal, J. -
(1.) The petitioner after due selection was appointed as a driver on six months' contract by an order dated 28-3-1977 to which a corrigendum was issued on 26-10-1979 adding the additions: "This appointment will be subject to termination on one month's notice or pay in lieu thereof on either side". According to the petitioner, the order speaks of contract basis but for all purposes he was a regular employee as he was enjoying all the benefits of a regular Government servant like deductions on account of monthly G.P.F. contributions, annual increments from year to year and all leave benefits under the leave rules. Petitioner's purported contract service was extended for one year beyond 1-4-1978 vide order dated 21-4-1978. Though the contract period for six months had expired on 30-9-1977, yet the petitioner continued to be in service till 31-3 1978. The petitioner's service was extended from time to time up to 31-3-1989. The petitioner on 16-4-1988 was directed to go to Siliguri. On the way one of he tyres of the truck got punctured at Rangpo on the West Bengal side. By the time the tyre was repaired and the journey resumed it was about 4.30 p.m. On the way, some engine trouble started and when he managed to reach Kalijhora, it was already too late and as the road was unsafe due to G.N.L.F. problem, he halted at Kalijhora at his in-law's place. The next day, the helper of the truck who was sleeping in the truck woke up the petitioner and informed him that some miscreants had forcibly taken the truck at the point of daggers and kukuries. Thereupon, the petitioner immediately rushed to Matigarh police station and lodged an F.I.R. and also reported about the incident at S.N.T. Office in Siliguri. The vehicle was later recovered and the accused were apprehended. The petitioner was placed under suspension vide order dated 29-7-1988 under sub-rule (2) of Rule 8 of the Sikkim Government Servants' Discipline and Appeal Rules, 1974. No charge sheet or show cause notice was issued to the petitioner. The Joint Secretary, S.N.T. passed an order dated 28-11-90 which runs as under:
Whereas an order placing Shri Madan Kumar Karki DI. No. 5091 / 73 under suspension was made vide O.O. No. 962/T of 29-7-88.
Now, therefore, the competent authority which made the order of suspension hereby revokes the said order of suspension with immediate effect treating the period of his suspension as on duty' and immediately thereafter, his contract service shall stand terminated duly providing one month's salary in lieu of one month's notice.
Sd/- T. Dorjee,
Sikkim Nationalised Transport
Government of Sikkim."
On receipt of the aforesaid order, petitioner submitted a representation dated 22-1-1991 and he was assured of a favourable consideration, but, since no order was passed on his representation, he again submitted another representation on 16-7-1991, whereupon he was informed that his case was being looked into. The matter was referred to the department of Law for their opinion, but, since there was undue delay, the petitioner finally served a notice demanding justice on the Chief Secretary on 15-3-1992 in response whereof the petitioner received a reply dated 4-5-1992 addressed at his Rangpo address after his return from Calcutta on 16-7-92, which gave numerous reasons to show that his work performance during the contract service was found unsatisfactory and his contract service had been terminated within the framework of Notification No. 3(14)20; Gen,' Est dated 16-4-1987. On 17-7-92, the petitioner served another notice demanding justice stating that his termination was punitive and not termination simpliciter since grave stigma had been cast upon him. He had not been given any opportunity to meet those allegations thus violating the basic principles of natural justice. Moreover, since he was regular Government servant, his services could not be terminated in the manner done by the department. The petitioner filed the present writ petition in this Court on 23-7-1992 and has submitted that his services were terminated as a punishment because no gratuity was paid to him as provided under 27 (2) of Notification No.J(14)201/Gen/Est. dated 16-4-1987, and since a stigma had been cast, the petitioner is not eligible to get any other Government service and as such the termination is not simpliciter and the impugned order is illegal, arbitrary, mala fide and violative of the principle of natural justice and Article 31](2) of the Constitution of India.
(2.) Rule nisi was issued by this Court and a counter-affidavit has been filed on behalf of the respondents, wherein it has ben submitted that the petitioner's appointment was on contract basis. He had never been brought into regular establishment. Petitioner's conduct was most negligent and further he was suspended pending departmental enquiry contemplated against him. But since no material for the purpose of issuance of charge-sheet was forthcoming, the department decided to drop the proceedings contemplated against the petitioner and revoked the suspension order duly treating the period of suspension as on duty. Since the petitioner was on contract employment and his period of contract had expired on 3 1-3-1989 during the period of his suspension, his contract appointment was terminated with effect from 28-I 1-1090 i.e. from the date of revocation of his suspension order, and that the impugned order carries no stigma. It is admitted that the petitioner is entitled to receive gratuity and other benefits admissible under the relevant rules, but since the petitioner did not move the respondents for payment of his gratuity it could not be paid and the respondents are ready and willing to pay the same. The termination was not by way of disciplinary action but since his services were no longer required by the respondents, they were terminated.
(3.) The petitioner has filed a rejoinder to the counter-affidavit and has re-asserted the assertions made in the petition. He has further stated that he was in service for over 13 years, The respondents were in need of drivers and had been regularising the services of drivers on contract basis like the petitioner, and in fact had regularised the services of persons who were junior to him. He has also asserted that it was not the duty of the petitioner to ask for gratuity payment as he was entitled for the same but the respondents did not pay the gratuity as they thought that his services had been terminated by way of punishment.;
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