Morung Express News
Dimapur | April 28
The Guwahati High Court Kohima Bench, on April 28, has set aside a termination order issued by the Food and Civil Supplies (FCS), Government of Nagaland (GoN) calling it ‘unsustainable’ and directed for reinstatement of an terminated employee.
The case pertained to terminating the service of a handyman under the establishment of the FCS, Dimapur.
As per the judgment passed by the Justice Nelson Sailo on Thursday, the petitioner was appointed to the post of handyman against the existing vacancy due to demise of another employee via an order on December 18, 2017, with the Administrative approval on December 14.
The appointment was on temporary basis and liable to be terminated after giving 1 month’s notice or 1 month pay without assigning any reason, the order said.
The petitioner, accordingly, joined the service on December 21, 2017.
However, in an order issued on January 7, 2019 he was terminated with immediate effect along with another driver, with the order further indicating that the same was as per the directive of the Government approval, dated December 19, 2018.
Aggrieved with his termination, the petitioner through his counsel served a legal notice department on August 8, 2020, to which the FCS Additional Director responded informing him that his termination was with the approval of the Government.
“Still aggrieved,” the petitioner approached to Court for redressal.
While hearing the case, the counsel for the petitioner submitted that the respondents could not have terminated without following the principles of natural justice and the procedure as well as violating the relevant section of the Nagaland Government Servants (Discipline & Appeal) Rules, 1967 (Rules of 1967).
Incidentally, against the vacancy caused by the termination of the petitioner, another was appointed on the same day, the counsel pointed out.
In this connection, he submitted that service of a temporary employee cannot be replaced by another temporary employee except through a regular selection procedure and prayed for setting aside the termination order and reinstating the petitioner into the service, citing three earlier judgments on related issue.
The affidavits in-opposition filed by the State respondents via the State Counsel argued that the appointment of the petitioner was purely on temporary basis and the petitioner was liable to be terminated without any notice or assigning any reason and the same was reflected in the appointment order itself.
The State Counsel also submitted that the termination of the petitioner’s service was on the directive of the higher authorities in the Government.
The appointment of the replacement was for “smooth functioning of the Department concerned” in the absence of the petitioner, the State Counsel added, calling for dismissal of the writ petition.
The counsel for the other new appointee (private respondent) also argued that there was nothing wrong with the termination of the petitioner as well as the new appointment and further submitted that the petitioner has no locus standi to file the writ petition as he had been “found absent unauthorisedly on many occasions.”
After hearing all the submissions and perusing the materials available on record, Justice Sailo note that the order of termination does not reflect any reason as to why the petitioner was terminated from service apart from indicating that it was as per the directive of the Government.
Again, the Court noted that while the new appointee in his affidavit has stated that the petitioner had not been regularly attending his duties, the State respondents had not made such indication apart from citing ‘terminable’ nature of the appointment.
Consequently, citing a Supreme Court judgment, which held that adhoc employee or temporary employee, cannot be replaced by another adhoc or temporary employee except by a regularly selected employee, Justice Sailo found the January 7, 2019 termination order “unsustainable” and set it aside.
The appointment order of the new handyman on the same day was also set aside.
The State respondents (Government of Nagaland via Chief Secretary; Commissioner and Secretary, FCS; and Director, FCS) were also directed to reinstate the petitioner back into service till such time the post is regularly filled up by adhering to selection process as per the established guidelines.
In such event, both the petitioner and the private respondent should be given a fair opportunity to participate.
Regarding “back wages,” the Court said that petitioner on his reinstatement will not be entitled to the same on the principle of ‘No Work No Pay’.
