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Madhya Pradesh High Court · body

2003 DIGILAW 157 (MP)

Radhey Shyam Bayde v. Janpad Panchayat, Depalpur

2003-01-24

A.M.SAPRE

body2003
ORDER 1. In this petition filed under Articles 226 and 227 of the Constitution of India the petitioner seeks to assail in substance his termination order, dated 7.6.2001 (Annexure P-19) which has been upheld in an appeal filed by the petitioner before the Additional Collector, by order dated 24.12.2001 (Annexure P-20) under the provision of M.P. Panchayat (Appeal and Revision) Rules, 1995. Facts in brief are these. 2. By order, dated 14.9.1998 (Annexure P-l) petitioner was appointed on the post of what it is known as 'Shiksha Karmi ,Class III' by the respondent No.1 which is a Janpad Panchayat constituted under the provisions of M.P. Panchayat Raj Adhiniyam. In terms of appointment letter and also in terms of rule 7 of M.P. Panchayat Shiksha Karmi (Recruitment and Conditions of Service) Rules, 1997 the petitioner was initially appointed or probation of three years extendable by five years. The petitioner accordingly joined the services. However, by order, dated 7.6.2001 (Annexure P-19), petitioner’s services were terminated on the ground of his continuous absence from the service. It is this order of termination which was impugned in appeal by the petitioner under rule 3 of the M.P. Panchayat (Appeal and Revision) Rules, 1995 to Additional Collector. However, the Additional Collector by impugned order, dated 24.12.2001 (Annexure P-20) dismissed the appeal and upheld the termination, giving rise to filing of this writ. The respondent No. 1 was noticed. They have filed the return. 3. Heard Shri Wakte, learned counsel for the petitioner and Shri Kailash Sajonia, learned counsel for the respondents. 4. Relying upon the law laid down by Supreme Court in the case of V.P. Ahuja v. State of' Punjab [ (2000) 3 SCC 239 ] learned counsel for the petitioner contended that the impugned termination need to be set aside. It was contended that petitioner's services could not have been terminated without holding regular departmental inquiry into the allegations levelled against the petitioner. Learned counsel pointed out that the termination order being stigmatic in nature as is clear from the mere reading of the order itself the same could not have been passed ever though the petitioner was a probationer Learned counsel further pointed out that petitioner was never absent from the duties as alleged against him. According to petitioner, he was always sent by the State at different places to play in different games or as Coach, he being a National Player. According to petitioner, he was always sent by the State at different places to play in different games or as Coach, he being a National Player. In reply, learned counsel for the respondent contended that the termination order being passed in terms of the appointment order, the same cannot be challenged. It was also contended that an opportunity of being heard by holding an inquiry was provided and hence, also no case for interference need be made in the impugned termination order which was rightly upheld in appeal. 5. Having heard the learned counsel for the parties and having perused the recon of the case, I am inclined to allow the writ and quash the termination order so too the order of Additional Collector passed in appeal. 6. The law on the issue of probationer is now well settled by series of decisions of Supreme Court. This is what is ruled by the Supreme Court in the case of V.P. Ahuja (supra) after placing reliance on the earlier decision of Supreme Court in the case of Dipti Prakash Banerjee v. Stayendra Nath Bose National Centre for Basic Science [( 1999) 3 SCC 60] their Lordships ruled in para 7 and 9 as follows: "Para 7 -- A probationer, like temporary servant, is also entitled to certain protection and his service cannot be terminated arbitrarily, nor can those services be terminated in punitive manner without complying with the principles of natural justice. Para 9 -- The entire case-law with respect to a 'probationer' was reviewed by this Court in a recent decision in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic, Sciences. This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it." 7. Applying the aforesaid law to the fact of the case, I find that the impugned order of termination was stigmatic in nature. I was passed on account of petitioner' continuous absence from the service Indeed, this was so mentioned in the termination order itself. It was, therefore necessary for the respondent No.1 to have held an inquiry before the impugned termination order was passed. The respondent No. 1 has not been able to show as to how and in what manner any inquiry was conducted. It was, therefore necessary for the respondent No.1 to have held an inquiry before the impugned termination order was passed. The respondent No. 1 has not been able to show as to how and in what manner any inquiry was conducted. The documents filed and relied upon by the respondent No.1 alongwith the return and in particular Annexures R-4 and R-5 said to be the inquiry cannot be held to be an inquiry report much less an inquiry conducted by following principles of natural justice. 8. It was necessary for the respondent No.1 to have served a proper charge sheet to the petitioner indicating specifically therein the charges to be investigated against the petitioner and proposed to be relied on to hold him guilty. The petitioner should have been given an opportunity to file reply to the charge sheet. The matter should have been then referred to the Inquiry Officer for holding a departmental inquiry in which the petitioner as also the respondent No.1 should have been giver adequate opportunity to appear and submit their say by tendering oral as also through their witnesses. It was then for the Inquiry Officer to have given his report on the basis of material filed by the parties as to whether charges levelled against the petitioner are proved. All this was admittedly not done because no such documents have been filed in support of the return. What is filed, do not satisfy this requirement. An inquiry cannot be a farse It has to be held keeping in view the principles of natural justice and fair play Since, these factors were not observed by the respondents and hence, the impugned order of termination cannot sustain. It is liable to be set aside. So too the appellate order of Additional Collector who failed to examine the issue on these lines. 9. Accordingly and for the reasons stated above, the petition succeeds and is allowed. Order of termination dated 7.6.2001 (Annexure P-19) and order dated 24.12.2001 (Annexure P-20) passed by Additional Collector are set aside/quashed by writ of certiorari with a direction that petitioner shall be put back on duty with all consequential benefits as was directed by the Supreme Court in the case of V.P Ahuja (supra).