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Madhya Pradesh High Court · body

2003 DIGILAW 1141 (MP)

Praveen Kumar Karel v. High Court of M. P.

2003-09-29

S.P.KHARE

body2003
JUDGMENT This is a writ petition under Articles 226 and 227 of the Constitution of India for quashing the order dated 28.11.1997 of the respondent No.2 by which the services of the petitioner were terminated and for a direction to the respondents to reinstate him in service with all consequential benefits. The petitioner was appointed as Process Writer by order dated 19.8.1997 (Annexure P-2) of the respondent No.2 after his selection for this post by the Selection Committee. He joined on 22.8.1997. He was posted in the Court of Civil Judge, Class II, Manasa. The petitioner was asked to fill-up a "verification form" by letter dated 8.10.1997. He filled up this form and submitted it to the respondent No.2. In this form the petitioner disclosed that there is a criminal case pending against him under sections 147, 148, 294, 323 and 506, Indian Penal Code in the Court of Judicial Magistrate, First Class, Manasa. That was Criminal Case No. 434 of 1995. There were 17 accused persons in that case. The petitioner was also one of them. It was also stated by the petitioner in this form that there was a dispute relating to a piece of land which gave rise to this criminal case. He has also stated that he has been falsely implicated and he is innocent. Thus, the petitioner did not suppress the fact of pendency of this criminal case against him. The petitioner was later acquitted in this criminal case. The services of the petitioner were terminated by the impugned order dated 28.11.1997 (Annexure P-6) with effect from 31.12.1997. It has been stated in the termination order that his services are "no longer required". The petitioner submitted his representation and appeal before the respondent No.1 but these were rejected. The petitioner's case is that his services have been terminated arbitrarily in violation of Articles 14 and 16 of the Constitution of India. He has pointed out that he was a Serial No.6 in the selection list and the person at Serial No.7 is still working in the office of the respondent No. 2. The respondents' case is that the appointment of the petitioner was purely temporary and as per Condition No.5 in the appointment letter his services have been terminated. He has pointed out that he was a Serial No.6 in the selection list and the person at Serial No.7 is still working in the office of the respondent No. 2. The respondents' case is that the appointment of the petitioner was purely temporary and as per Condition No.5 in the appointment letter his services have been terminated. It has been clearly stated in the return that the services of the petitioner "have not been terminated on the basis of giving false information in the attestation form". It is not the case of the respondents that the services of the petitioner were terminated because of the pendency of the criminal case against him. The plea of the respondent is that the services of the petitioner were terminated because he was a temporary employee and it has been done as per Condition No, 5 in the appointment order. The learned counsel for both the sides have been heard. A copy of the note-sheet dated 6.7.1999 has been produced. This note-sheet shows that on appeal and representation by the petitioner the comments of the respondent No. 2 were called. Para 3 of this note-sheet shows that according to the report of the respondent No.2, the services of the petitioner were terminated because of the criminal case against him and it was stated in the termination order that his services are no longer required. In Para 2 of the return it has been stated that "the petitioner is under an erroneous apprehension that his services have been terminated on the ground of tendering false information in Para 12 of the "Attestation Form". Therefore, the information in the attestation form is not shown to have any nexus with the termination order. It is argued on behalf of the respondents that the services of the petitioner were purely temporary and these have been terminated as no longer required in light of Condition No. 5 and, therefore, there can be no judicial review of this termination order. This argument is not acceptable. It is not disclosed in the return what was the reason or the ground for termination of the services of the petitioner. The termination is not based on unsuitability or unsatisfactory work. There was no misconduct on the part of the petitioner. There was no abolition of the post. The person junior to the petitioner has been retained. It is not disclosed in the return what was the reason or the ground for termination of the services of the petitioner. The termination is not based on unsuitability or unsatisfactory work. There was no misconduct on the part of the petitioner. There was no abolition of the post. The person junior to the petitioner has been retained. The criminal case against the petitioner has ended in acquittal. Therefore in all fairness the petitioner should be reinstated in service. It has been submitted on behalf of the petitioner at the time of hearing of this petition that he would not claim any arrears of salary or backwages for the period he remained out of service. A three-Judge Bench of the Supreme Court in The Manager, Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477 = AIR 1979 SC 429 has laid down the law that if the services of a temporary government servant are terminated in accordance with the conditions of service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off as a class apart from other temporary servants who have been retained in service, there is no question of the application of Article 16. But if the services of a temporary government servant are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act to accordance with the terms of employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting in cases analogous to those under Article 311 (2), proviso (c), the authority cannot withhold such information from Court and plead that the order was purely administrative passed in the exercise of administrative discretion, and not judicial. Fairness, founded on reason is the essence of Articles 14 and 16(1). Excepting in cases analogous to those under Article 311 (2), proviso (c), the authority cannot withhold such information from Court and plead that the order was purely administrative passed in the exercise of administrative discretion, and not judicial. Fairness, founded on reason is the essence of Articles 14 and 16(1). Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The expression 'matters relating to employment' is not confirmed to initial matters prior to the ad of employment; it comprehends all matters such as salary, increments, leave, gratuity, pension, age of superannuation, promotion and termination of employment. "Appointment" in Article 16(1) will include termination of or removal from service. The protection of Articles i4 and 16(1) is available to such a temporary government servant if he has been arbitrarily discriminated against and singled out for harsh treatment. The appellant has discretion under the conditions of service, but such discretion has to be exercised in accordance with reason and fair play and not capriciously. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal opportunity and offend the equality clause in Articles 14 and 16(1). The argument based on pure master and servant relationship is misconceived. It is to bring that relationship in tune with the vastly changed and changing socio-economic conditions and mores that this antiquated and unjust doctrine has been eroded by judicial decisions and legislation, and in its application to persons in public employment particularly, the Constitutional protection of Articles 14, 15, 16 and 311 is available. In view of the above legal position, the petition is allowed. The impugned order dated 28.11.1997 of the respondent No.2 is quashed. The respondents are directed to reinstate the petitioner in service within two months from the date of this order, but without backwages.