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Madhya Pradesh High Court · body

2003 DIGILAW 272 (MP)

Kripashankar Tiwari v. State of M. P.

2003-02-13

K.K.LAHOTI

body2003
ORDER 1. Petitioner has filed this petition challenging the order (Annexure P-19) dated 26.3.1999 issued by Janpad Panchayat, Patan, Distt. Jabalpur, by which the services of the petitioner were terminated because his appointment was found to be contrary to rules. 2. Before proceeding ahead in this case, it is necessary to state one more fact. Against the order of Janpad Panchayat there is provision of statutory appeal under Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995 and the aforesaid order undisputedly is appealable. In this case, a show cause notice was issued on 14.5.1999. Thereafter other party appeared and matter was placed before the Court on 3.12.1999. After hearing parties this petition was admitted on that date for final hearing. Thereafter, this case is listed today for hearing. As the aforesaid petition was already admitted more than 3 years back, in these circumstances, it is not appropriate to dismiss the petition on the ground of availability of alternative remedy, and this petition is heard finally. But it will not be treated as precedent in future. 3. Short facts of the case are that respondent Janpad Panchayat, Patan through Employment Exchange sought applications for appointment of an Aurvedic Vaidya. In this regard letter (Annexure P-4) was sent to Directorate of Employment and Training Madhya Pradesh in which the aforesaid post was shown with certain qualifications which reads as under : . 1. Type of workers required (Designation) - Aurvedic Vaidya 2. Description of duties -- Examination of patients and treatment work. 3. Qualification required -- (i) Essential: B.Sc. 2nd Division, with Physics and Chemistry subjects. (ii) Aurved Ratna passed (iii) Experience of practice as Vaidya, including the experience of medicine. 4. The Employment Exchange sent only one name of petitioner as he was only available candidate who was fulfilling the requisite qualifications as stated hereinabove. Thereafter without meeting of Selection Committee as required under Madhya Pradesh Janpad Panchayat Employees (Qualification Recruitment and Conditions of Service) Rules, 1976, the petitioner's appointment was approved and vide order Annexure P-9 dated 12.7.1988 the petitioner was appointed. The aforesaid order was passed with the approval of Chairman, Janpad Panchayat, Patan and Deputy Director of Panchayat and Social Service, Jabalpur. By Annexure P-10 dated 14.7.1995, the petitioner joined. By order (Annexure P-11) dated 20.10.1995, the petitioner's pay scale was fixed at Rs. 2200-4000. The aforesaid order was passed with the approval of Chairman, Janpad Panchayat, Patan and Deputy Director of Panchayat and Social Service, Jabalpur. By Annexure P-10 dated 14.7.1995, the petitioner joined. By order (Annexure P-11) dated 20.10.1995, the petitioner's pay scale was fixed at Rs. 2200-4000. On 8.2.1999, Janpad Panchayat, Patan passed a Resolution that the Janpad Panchayat is not getting any grant from Government, so the Aushdhalaya could not be run by the Janpad Panchayat and decided to close it. Thereafter, Janpad Panchayat wrote a letter on 24.2.1999 to the Collector for closure of the Aushdhalaya vide Annexure P-15. Thereafter vide order (Annexure P-19) dated 26.3.1999, the services of the petitioner were terminated on the ground that the Chief Executive Officer, Panchayat, Jabalpur vide letter dated 12.3.1999 found that the appointment of the petitioner was contrary to rules. Consequently, the order of appointment dated 12.7.1995 was cancelled with immediate effect. Thereafter petitioner filed this petition. 5. The contentions of the petitioner are that (i) he is fully qualified; (ii) he was possessing the requisite qualification as per advertisement issued by the Panchayat (Annexure P-4); (iii) before passing order (Annexure P-19) petitioner was not afforded any opportunity of hearing nor: any show cause notice was issued; and (iv) without affording any opportunity of hearing for explaining that he was possessing requisite qualification, his services were illegally terminated. In support of his; contentions, the learned counsel for petitioner has relied on two judgments of the Apex Court: Shrawan Kumar Jha and others v. State of Bihar and others 1991 Suppl. (1) SCC 330 and Basudeo Tiwary v. Sido Kanhu University and others AIR 1998 SC 3261 , and Division Bench judgment of this Court in Hari Narayan Sakya v. State of M.P. and others 2000(3) MPLJ 351 arid contended that prior opportunity of hearing was necessary before passing termination order and without affording such opportunity, the termination order is bad in law and deserves to be quashed by this Court. 6. The learned counsel for. 6. The learned counsel for. respondents 2 and 3 submitted that the order (Annexure P-19) is justified as (a) the petitioner was not possessing requisite qualification, (b) he was not a registered Vaidya as per provision of M.P. Public Health (Indian System of Medicine and Homeopathy) (Gazetted) Service Recruitment Rules, 1987 (c) his appointment was not approved by the Joint Director, Aurved (d) the certificate of Aurvedic Ratna was not recognised, (e) the petitioner was not having requisite qualification for appointment and he was not registered as Vaidya, then no opportunity of hearing was necessary. In support of his contention, the learned counsel for respondents 2 and 3 relied on two judgments of the Apex Court i.e. State of Madhya Pradesh and others v. Shyama Pardhi and others : (1996) 7 SCC 188 and Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and another (1999) 7 SCC 332 and contended that in the present case when the petitioner was not having requisite qualification, cancellation of his appointment was just and proper and no opportunity of hearing was necessary in peculiar facts and circumstances of the case. 7. Considering the contentions raised by the learned counsel for parties, it is necessary to look into the facts of the case. 8. In the present case, the petitioner's name was forwarded by Employment Exchange for his appointment as Aurvedic Vaidya to respondents on the basis of his requisite services and qualification. The respondents, after considering the qualification, sought approval from Deputy Director and after the aforesaid approval, the Chairman, Janpad Panchayat, Patan appointed petitioner on the post of Aurvedic Vaidya. Aforesaid appointment was issued on 12.7.1995. Thereafter, the petitioner continued in service for a period of near about 4 years. Thereafter, the petitioner's services were terminated vide order Annex. P-19 on 26.3.1999. The fact remains that the petitioner discharged his duty for a considerable period of near about 4 years with the respondents. Now the question remains whether the petitioner was entitled for opportunity of hearing or not. As per judgment relied on by the learned counsel for petitioner he was entitled for such an opportunity, but the learned counsel for respondent contended that he was not entitled for opportunity of hearing. In this regard, it is necessary to refer the aforesaid judgments cited by both the parties. 9. As per judgment relied on by the learned counsel for petitioner he was entitled for such an opportunity, but the learned counsel for respondent contended that he was not entitled for opportunity of hearing. In this regard, it is necessary to refer the aforesaid judgments cited by both the parties. 9. In Shrawan Kumar Jha's case (supra), the Apex Court held : "3. By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok If Desai, learned Solicitor General appearing for the respondents have contended that the appointments have been cancelled because toe District Superintendent of Education had no authority to make the appointments; it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with, Mr. UR. Lalit and Mr. A.K. Ganguli, learned senior Advocates, appearing for the appellants have controverted these allegations and have stated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of the case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground ... ... ... ... ... ..." 10. Similar view has been taken by the Apex Court in Basudeo Tiwary's (supra) whereas the Apex Court held: "12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, Statutes, Rules or Regulations etc. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, Statutes, Rules or Regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act, etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry notice will have to be held and in holding such an enquiry the person whose appointment is under enquiry will have to he issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case ( AIR 1991 SC 101 ). In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, Statute, Rule or Regulation, etc., and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how S. 35(3) in this case will have to be read. 13. Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence, the impugned order terminating the services of the appellant cannot be sustained". 11. The law laid down by the Apex Court in both the cases is that before termination of the services of any employee, it is necessary to afford an opportunity of hearing and without affording such an opportunity of hearing, the order is bad in law and is liable to be quashed on this short ground. 11. The law laid down by the Apex Court in both the cases is that before termination of the services of any employee, it is necessary to afford an opportunity of hearing and without affording such an opportunity of hearing, the order is bad in law and is liable to be quashed on this short ground. The Division Bench of this Court following the aforesaid judgments in Harinarayan Sakya's case (supra) held: 10. Looking to the decisions quoted above, it is absolutely clear that there should be fairness in the action. Process for taking action is to answer requirement of fairness which is an essential attribute of justice. Petitioners have remained in service for a long time. Some of them were promoted to the higher posts also. Therefore, before taking the action, opportunity for hearing should have been extended to them. Decisions cited by the learned counsel for respondents turn on different facts and are not, therefore, applicable to the facts of the case and the principle projected for challenging the impugned action. Question whether appointments are in accordance with Government rules, regulations, instructions and whether the petitioners are qualified are left to be considered by the authority which should hear the petitioners in the matter". 12. The Division Bench of this Court has relied on Shrawan Kumar Jha's case (supra) and Basudeo Tiwary's case (supra) as referred above. 13. The judgments relied upon by the learned counsel for respondents 2 and :3 are Shyama Padhi's (supra). The Apex Court held: "5. It is now an admitted fact across that Bar that the respondents had not possessed the pre-requisite qualification, namely, 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question of violation of the principles of natural justice does not arise. The ratio of Shrawan Kumar Jha v. State of Bihar, strongly relied on, has no application to the facts of this case. That was a case where the appellants possessed initial qualifications but they did not undergo the training. The question of violation of the principles of natural justice does not arise. The ratio of Shrawan Kumar Jha v. State of Bihar, strongly relied on, has no application to the facts of this case. That was a case where the appellants possessed initial qualifications but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this Court interfered with, directed the Government to reinstate. them into service and further directed them to send the appellants therein for training". In Dhannarathmakara Raibahadur Arcot Ramawsamy Mudaliar Educational Institution's case (supra), Apex Court held : "8. The contention of learned counsel for the respondent is confined that there was no enquiry in terms of section 6 of the said Act. There is no submission of any defence on merit. Even before us when we granted learned counsel an opportunity to give any prima facie or plausible explanations on record to defend her actions, nothing could be placed before us. Giving of opportunity or any enquiry of course is a check and balance concept that on one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires: But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When she admitted she did not join M. Phil. course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order. 9. In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order. 9. Further the order of termination was passed in the year 1978 which is more than 21 years back and on the facts and circumstances of this case, as she is not working since then in the said Institution and we are also informed by her learned counsel that she is already in some job and in view of our findings above, we do not find this case to be such as to confirm the impugned orders. On the contrary we feel it was a fit case where her termination order should have been upheld. This is a case where respondent 2 acted clearly in violation of her own undertaking against her condition of leave and in spite of information to her by the appellant to return to duty she did not, which clearly depicts a picture that the termination order cannot be held to be invalid. Thus, both the Courts, viz., the Tribunal and the High Court committed wrong in setting aside the order of termination passed against her by the appellant. 10. Learned counsel for respondent 2 lastly submitted that her termination order puts a stigma on her which would affect her future and other employment. On the facts of this case, we have no hesitation to hold that this termination order is an order of termination simpliciter and it does not put any stigma on respondent 2. Even if it could be construed as such we protect her not to be read as so by this order." 14. The factual position in both the aforesaid cases Shyama Pardhi and Dharmarathmakararn is entirely different. In Shyama Pardhi's case (supra), it was not disputed before the Apex Court that on the date of appointment, the petitioner was not possessing pre-requisite qualifications. Similar is the position in the case of Dharmarathmakarara whereas the decree of M.Phil. was not possessed by the petitioner. But in the present case, the factual position is entirely different. The petitioner was possessing the requisite qualification as advertised in the advertisement. The order of appointment was cancelled after near about 4 years. Similar is the position in the case of Dharmarathmakarara whereas the decree of M.Phil. was not possessed by the petitioner. But in the present case, the factual position is entirely different. The petitioner was possessing the requisite qualification as advertised in the advertisement. The order of appointment was cancelled after near about 4 years. The Larger Bench of this Court in the case of Jabalpur Bus Operators Association and others v. The State of M.P. and anothers (W.P. No. 177 of 2001 and W.P. No. 1629 of 2001) had an occasion to consider the aforesaid question and held (in page 73) : "With regard to the High Court, a Single Bench is bound by the decision of another Single Bench. In case, he does not agree with the view of the other Single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding. The decision of Larger Bench is binding on smaller Benches. In cases of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless 'distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over ruled on this point." 15. In view of the settled position of law by Larger Bench of this Court, the judgment of Shrawan Kumar Jha's case (supra) has to be followed. Relying on the judgment of Shrawan Kumar Jha's case (supra), the petitioner was entitled for a show cause notice and opportunity of hearing before termination of his services. In absence of aforesaid, the order terminating the services of the petitioner is bad in law and liable to be quashed. Accordingly, order (Annexure P-19), which has been passed without issuing any show cause or opportunity of hearing to the petitioner is bad in law and accordingly• quashed. Respondents are directed to reinstate the petitioner forthwith. As the petitioner has not worked for the aforesaid period, he willl10t be entitled for back wages. Accordingly, order (Annexure P-19), which has been passed without issuing any show cause or opportunity of hearing to the petitioner is bad in law and accordingly• quashed. Respondents are directed to reinstate the petitioner forthwith. As the petitioner has not worked for the aforesaid period, he willl10t be entitled for back wages. The quashment of order (Annexure P-19) will not come in the way of respondents, if they choose to terminate the services of the petitioner because he was not possessing some qualification for the appointment of Aurvedic Vaidya, after following due procedure may terminate the services of the petitioner in accordance with law. 16. With the aforesaid, this petition is allowed. No order as to costs.