WP(C) 1067/2010 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) The legality and validity of the order dated 04.09.2008, passed by the D istrict Mission Coordinator (for short DMC), Sarba Siksha Abhijan, (for short SS A), Barpeta is under challenge in this writ petition, whereby and whereunder the contractual service of the petitioner as Grade-IV employee of Bajali Block, SSA , Barpeta is stated to be no longer required w.e.f. 30.08.2008 due to un-satisfa ctory report of Block Mission Coordinator, (for short BMC) SSA, Bajali and arres t by the Police. 2. Heard Mr. H Talukdar, learned counsel appearing for the petitioner. Also heard Mr. MK Mishra, learned Standing counsel, Education Department, appearing for respondent Nos.1 and 4 and Mr. S Sarma, learned Standing counsel, SSA, appea ring for respondent Nos. 2, 3 and 5. 3. The factual matrix of the case as narrated in the writ petition is summa rized herein below: An advertisement for filing up Grade-IV post in the Office of the Block Regional Coordinator, Bajali under DPEP was issued and consequent thereupon, the petitioner being eligible applied for the post and got selected. Accordingly, h e was engaged as Grade IV employee in the Office of the Block Regional Coordinat or, (for short BRC) Bajali on daily wages at Rs.48/- per day vide order dated 18 .02.1999. In the said engagement letter, it was stipulated that the engagement w as temporary and the order may be vacated at any time without assigning any reas on. On receipt of the aforesaid communication, the petitioner joined in the said Office on 23.02.1999 and he continued in the post till 30.06.2003 during the pe riod of DPEP and in furtherance, he continued in his service from 01.07.2003 to 02.08.2008 as the Grade-IV employee (Night Chowkidar) of Block Mission Coordinat or, Bajali under Assam Sarba Siksha Abhijan Mission (for short ASSAM). However o n 03.08.2008, an ejahar was lodged by the Block Primary Education Officer, Bajal i Block with the Officer-in-Charge, Pathsala Police Outpost alleging, inter alia , that while the petitioner was carrying books in 10 (ten) packets in two trolle ys and a cycle was apprehended by public and handed over to the police and there by requested to investigate the matter. Upon receipt of the ejahar, a GD entry b eing GDE No.56 dated 03.08.2008 was made at Pathsala Police Outpost and the same was forwarded to Patacharkuchi Police Station for registering a case. According ly, the police registered the case being Patacharkuchi P.S. Case No.183/2008 und er Section 380 IPC. Subsequent thereto he was arrested by the police under the s aid charge and was enlarged on bail after 25(twenty five) days of arrest and the impugned order dated 04.09.2008 was issued as indicated above which is under ch allenge in the instant writ petition. 4. The following arguments were advanced by Mr. Talukdar, learned counsel a ppearing for the petitioner, namely; (a) Engagement letter dated 18.02.1999 as Grade-IV (day shift) under Bl ock Regional Coordinator was issued after due selection in pursuance to the adve rtisement and continuance in service till 04.09.2008 would go to show that the p etitioner had acquired the status of quasi-permanent/temporary status and theref ore, contended that the order under challenge is stigmatic and administrative fa ir play in action, demands that impugned order dated 04.09.2008 requires interfe rence being violative of the principles of natural justice, (b) The service of a temporary Government servant shall be liable for t ermination at any time by a notice in writing by the appointing authority, where as the petitioner was engaged as Grade IV (day shift) in BRC and subsequently se rved as Grade IV employee (Night Chowkidar) for the last 9(nine) years, thus it can be presumed that the service is in the nature of permanent and, therefore, c ontended that without taking recourse to the notice as required under the law an d/ or the service rendered by him being unsatisfactory, vis-à-vis, Police arrest demands that the disciplinary proceeding is the right course of action in the i nstant case and in absence of notice, vis-à-vis, the disciplinary proceeding, th e impugned order dated 04.09.2008 cannot be sustained under the law and the same is liable to be set aside. (c) The appointing authority has directed the District Elementary Educa tion Officer, Barpeta to cause an enquiry relating to lifting of FTB and for whi ch the petitioner was charged under Section 380 IPC and his service was terminat ed consequently thereupon, whereas no enquiry was completed due to non-cooperati on of BMC, Bajali Block and the actual facts had been hidden, as it would reveal from the communication dated 04.08.2008 issued by the Deputy Inspector of Schoo ls, Bajali, Pathsala, more so, when the Police has filed final report and there was no objection to that final report, therefore, urged that it is a fit case fo r interference with the impugned order with a direction to reinstate the petitio ner with all arrear salaries. 5. Countering the attack, Mr. S Sarma, the learned Standing counsel, SSA, a ppearing for the respondent Nos.2, 3 and 5 has referred the pleadings made in th e affidavit-in-opposition and contended that the petitioner was appointed tempor arily as a Grade-IV employee on daily wage basis and consequent thereupon had ex ecuted agreement with the Assam Prathamik Siksha Anchalik Parishad (for short AP SAP) being temporary in nature cannot claim re-instatement as argued by the coun sel appearing for the petitioner. The counsel appearing for the respondent would urge that the petitioner having found lifting text books from the Office of the BMC, Bajali without any a uthority on 03.08.2008, his service being not at all satisfactory and having reg ard to the activity of the petitioner his contractual service was terminated whi ch do not require to be interfered with in exercise of power under article 226 o f the constitution of India. 6. Considered the arguments advanced by the contesting parties. Perused the pleadings made in the writ petition, including the averments made in the affida vit-in-opposition along with the annexures appended thereto. The admitted facts pleaded and established is that in pursuance to the advertisement the petitioner was interviewed and got selected and accordingly appointed in a daily wage basi s and served from 23.02.1999 and 30.06.2003 during the period of DPEP and in con tinuance of service he has served from 01.07.2003 to 02.08.2008 as Grade IV empl oyee (Night Chowkidar) of BMC, Bajali under ASSAM which facts have not been cont roverted by the respondents and in the process, the petitioner had served the AS SAM for the last about 9 (nine) years and thus the post can be presumed to be pe rmanent in nature. Admittedly, the petitioner’s engagement after serving about 9 (nine) years has been discontinued holding that his service is no longer requir ed w.e.f. 30.08.2008 vide order dated 04.09.2008 due to unsatisfactory report of BMC, SSA, Bajali, but the said report has not been produced before the Court fo r perusal. A bare reading of the impugned order dated 04.09.2008 would disclose that the order is stigmatic, more so, when he had served the ASSAM for more than 9(nine) years. 7. Moreover, even if the arguments advanced by the counsel, representing th e respondent is accepted, then also the stigmatic order stands. When the order under challenge is stigmatic, an opportunity should be gi ven to rebut the allegation before any action is taken whether in the form of pu nitive or not. In the instant case, the service of the petitioner has been dis-c ontinued holding that his service is no longer required due to unsatisfactory re port of BMC, SSA, Bajali without taking recourse to the provisions of Assam Serv ices (Discipline and Appeal) Rules, 1964 and that too without giving an opportun ity to rebut the allegation brought against the petitioner. 9. In view of the discussion and observation made above, the impugned order cannot be sustained under the law, more so, when the report is not made availab le to the Court and hence the impugned order dated 04.09.2008 issued by the BMC, SSA, Bajali is set aside and quashed. 10. In the result, the writ petition is allowed directing the respondent aut horities to reinstate the petitioner in Grade IV post immediately as he was hold ing the post prior to 30.08.2008. As regards payment of back wages, the departme ntal authorities shall take necessary steps. 11. The parties are left to bear their own costs.