Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 439 (MP)

Ashok Kumar Tripathi v. Janpad Panchayat

2002-04-22

RAJENDRA MENON

body2002
Judgment ( 1. ) THE petitioner was appointed as Shiksha Karmi by the respondent, Janapad Panchayat, Lahar with effect from 30-4-1997 vide order Annexure P-2, dated 2-1-1997 and was posted at Prathmik Vidhyalaya, Tola, Pargana Lahar, District Bhind. Subsequently, he was again appointed from time to time for various periods. Finally, after the Madhya Pradesh Shiksha Karmi (Bharti Tatha Seva Sharteon) Niyam, 1997 (hereinafter referred to as the Rules of 1997) were framed. The petitioner was appointed as a Shiksha Karmi, Grade-III in the scale of Rs. 800-1200 vide order dated 13-7-1998 (Annexure P-4 ). The petitioners contention is that with effect from 13-7-1998 he has been regularly appointed as a Shiksha Karmi, Grade-III as per the Rules of 1997. ( 2. ) WHILE the petitioner was discharging the duties as a Shiksha Karmi in Tola, he had an excellent record of service and there was nothing adverse against him. Certificates of appreciation issued by the authorities with regard to the service of the petitioner have been filed as Annexures P-5 and P-6 respectively. These certificates indicate that the petitioners service was good and there was nothing adverse against him. ( 3. ) IT is averred by the petitioner that the respondent No. 1, Janpad Panchayat had certain grudge against his uncle one Shri Satya Narayana Tripathi, he had some dispute with the C. E. O. , some criminal complaint and proceedings were initiated between them in various Courts. It is stated by the petitioner that because of this, respondents were biased against the petitioner and passed, order Annexure P-1 on 6-84999 wherein his services were terminated without disclosing any reason and without giving any opportunity of hearing. The petitioner preferred an appeal against the impugned order before the Collector, District Bhind and the Collector vide the order dated 13-8-1999 (Annexure P-7) without considering the same and disclosing any reason has rejected the appeal. ( 4. The petitioner preferred an appeal against the impugned order before the Collector, District Bhind and the Collector vide the order dated 13-8-1999 (Annexure P-7) without considering the same and disclosing any reason has rejected the appeal. ( 4. ) THE respondents have filed return and in the return it is stated by them that a report, Annexure R-1, dated 28-7-1999 was received by the Chief Executive Officer of the Janpad Panchayat from the Block Education Officer wherein certain allegations were levelled against the petitioner with regard to his work and it was stated that the service of the petitioner during probation was not satisfactory and on the basis of the said report, a resolution was passed by the Standing Committee of the Janpad Panchayat, dated 5-8-1999 (Annexure R-2 ). It is also stated that there is no relationship between the petitioner and Shri Satya Narayana Tripathi. Therefore, the contention of the petitioner with regard to bias because of the dispute between his uncle and the Chief Municipal Officer has been denied. ( 5. ) I have heard the learned Counsel for the parties and perused the record. ( 6. ) UNDER the provisions of the Madhya Pradesh Panchayat Avam Gram Swaraj Adhiniyam, 1993 rules have been framed. The rules relevant for decision in the instant case are the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995 and the Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997. ( 7. ) RULE 7 of the aforesaid Recruitment Rules of 1997 provides for appointment on probation and Rule 10 thereof pertains to termination from service. Rule 9 deals with the discipline and Control. ( 8. ) RULE 7 of Recruitment Rules of 1997 contemplates that a person directly recruited to the post of Shiksha Karmi shall be on probation for a period of three years. His performance will be assessed by the appointing authority at the end of each year and after three years, he shall be appointed on regular basis. It is further provided in the said Rule that in case the performance is not found satisfactory, the person may be allowed to continue on the probation for another one to two years to improve his performance but in no case, the total period of probation shall be extended beyond the maximum period of five years. ( 9. It is further provided in the said Rule that in case the performance is not found satisfactory, the person may be allowed to continue on the probation for another one to two years to improve his performance but in no case, the total period of probation shall be extended beyond the maximum period of five years. ( 9. ) A perusal of the aforesaid rule clearly indicates that a Shiksha Karmi appointed will be entitled to continue on probation for a period of three years, extendable for a maximum period of two years. But his performance has to be assessed, meaning thereby, shortcomings, if any should be indicated to the incumbent and he should be given reasonable opportunity for improvement before any action is taken. ( 10. ) RULE 10 of the aforesaid Rules of 1997 further provides for termination of service by giving one months notice in writing or on payment of one months pay thereof. ( 11. ) RULE 3 of Appeal and Revision Rules, 1995 provided for appeal to an appellate authority. An order passed by the Janpad Panchayat is appealable before the Collector. ( 12. ) IN the instant case, even though the petitioner was on probation but there is nothing on the record to indicate that his services during the period of probation were unsatisfactory or that he had a bad record. ( 13. ) A perusal of the order, Annexure P-1, dated 6-8-1999 prima facie indicates that it is a termination simpliciter without disclosing any reason. However, the reasons disclosed in the return indicates that action was taken because of the report dated 28-7-1999 (Annexure R-1) sent to the Chief Executive Officer by the Block Education Officer. In the said report, various allegations have been levelled against the petitioner with regard to his conduct and it is said that his activities amounts to misconduct, and therefore, his services should be terminated. The reasons disclosed in the return and the material produced clearly indicates that the services of the petitioner were terminated because of certain allegations against him, and therefore, the same amounted to punishment for misconduct. Under the Rules of 1997, specific provision for discipline and control are provided and Rule 9 says that the appointing authority shall be the disciplinary authority for major punishment. Under the Rules of 1997, specific provision for discipline and control are provided and Rule 9 says that the appointing authority shall be the disciplinary authority for major punishment. If action has to be taken for punishing a person who has committed misconduct then the principles of natural justice ought to have been followed. ( 14. ) THE case in hand is not a case where the service of a probationer is being terminated simply because of unsatisfactory service, during the period of probation. Even if the petitioner/employee was a probationer, his service could be terminated for unsatisfactory service but that could be done only if the shortcomings were communicated to him and he was given some opportunity to improve his performance. Assessment of service of an employee during the period of probation has to be done in a positive manner. Shortcomings should be brought to the notice of the employee concerned and it is only after no improvement is shown, that the service of a probationer could be dispensed with. In the instant case, there is nothing on the record to indicate that the services of the petitioner were unsatisfactory and he was given opportunity for the improvement. On the contrary, based on adverse remark pertaining to a misconduct received from the Office of the Block Education Officer vide Annexure R-1, services of the petitioner have been terminated without giving any opportunity of hearing and without showing any cause to him. The entire action was taken behind the back of the petitioner in gross violation of the principles of natural justice. In the opinion of this Court, such an order is unsustainable in law. The petitioner even though a probationer has a right of hearing when the order is being passed on the basis of alleged misconduct with regard to his duties. It is, therefore, the considered view of this Court that the order impugned even though innocuously worded and made as a termination simpliciter is in fact, an order of punishment issued on the basis of a report, Annexure R-1 which speaks of misconduct committed by the petitioner. The order impugned, is therefore, unsustainable on this ground. ( 15. It is, therefore, the considered view of this Court that the order impugned even though innocuously worded and made as a termination simpliciter is in fact, an order of punishment issued on the basis of a report, Annexure R-1 which speaks of misconduct committed by the petitioner. The order impugned, is therefore, unsustainable on this ground. ( 15. ) LEARNED Counsel for the respondents during the course of hearing submitted that specific provision for appeal and revision are provided for in the Appeal Rules of 1995 and the petitioner should resort to the remedy of appeal and revision and the petition directly filed before this Court was not maintainable. ( 16. ) THE petitioner after the impugned order was passed had moved the Collector by filing an appeal. As per order, Annexure P-7, dated 13-8-1999, the Collector has rejected his application without considering the same. In view of this, it cannot be said that the petitioner has directly approached this Court for redressal of his grievances. It was only after refusal by the Collector to entertain his application had filed the instant petition. As far as the Courts of revision are concerned, for revision, the right of revision is available only if point of law is involved in the matter. ( 17. ) IN view of the pendency of the present case and in view of the fact that the petition was filed in the year 1999, and it was admitted and this Court had ordered stay of the impugned order dated 6-8-1999 (Annexure P-1) vide the order dated 27-8-1999, it would not be proper to dismiss the writ petition and relegating the petitioner to the Revisional Court for redressal of his grievances. ( 18. ) CONSIDERING the totality of the facts and circumstances of the case and in view of the findings recorded hereinabove, the impugned order, Annexure P-1, dated 6-8-1999 cannot be sustained as the same has been passed in gross violation of the principles of natural justice without hearing the petitioner. It is accordingly quashed. The petitioner is continuing in service in view of the order of stay granted by this Court vide the order dated 27-8-1999, the petitioner shall be permitted to continue. In case, the respondents so desire, they can proceed to take action against the petitioner in accordance with law. ( 19. ) THE writ petition is allowed. The impugned order is quashed. In case, the respondents so desire, they can proceed to take action against the petitioner in accordance with law. ( 19. ) THE writ petition is allowed. The impugned order is quashed. Parties to bear their own costs.