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Madhya Pradesh High Court · body

2005 DIGILAW 1077 (MP)

Rajendra Prasad Yadav v. State of M. P.

2005-10-18

A.K.SHRIVASTAVA

body2005
ORDER 1. The petition was originally filed before the M.P. State Administrative Tribunal at Jabalpur on 22.3.1990. However, on account of abolition of the Tribunal, this petition has been received by this Court fonts adjudication. 2. In this petition Annexure A-9 the order dated 16.2.1990 is impugned by which the services of the petitioner have been terminated. The petitioner has prayed for his reinstatement. 3. The petitioner was appointed after due selection and passing the written examination on the post of clerk in CRPC in the pay scale of Rs.870-1420 temporary basis. Thereafter, the petitioner was informed that since no post of clerk (CRPC) is available in the office of District Prosecution Officer therefore he was asked to report in the office of Director, Public Prosecution, Bhopal. The said order dated 12.8.1988 has been placed on record as Annexure A-3. The petitioner accordingly submitted his joining report on 16.8.1988. 4. The contention of Shri Shashank Verma, learned counsel appearing for the petitioner, is that since officers were not happy with the petitioner as he made certain complaints against his colleagues to the senior officers. The petitioner on 27.11.1989 submitted a representation to the District Prosecution Officer ventilating his grievances that no work is being allotted to him, as a result of which he is sitting idle. The petitioner has pleaded certain instances in para 6 of the petition that he made complaints against his colleagues and, therefore, the officers became annoyed, and the impugned order Annexure A-9 dated 16.2.1990 terminating his services was passed. The contention of learned counsel is that though this order is simplicitor order terminating the services mentioning in it that petitioner's service are no longer required, but if the veil is lifted it would be gathered that by casting stigma, the services of the petitioner have been terminated and, therefore, the impugned order which is stigmatic in nature, be quashed. 5. Learned counsel for the petitioner has also invited my attention to para 7 of the return and has submitted that the stand of respondents is that respondent No.3 was the controlling and supervising officer of the petitioner and he repeatedly asked the petitioner to behave properly, but in vain. Respondent No.3 submitted a report on 29.1.1990 against the petitioner, copy of which has been placed on record as Anexure R-12 along with the return. Respondent No.3 submitted a report on 29.1.1990 against the petitioner, copy of which has been placed on record as Anexure R-12 along with the return. The contention of learned counsel for the petitioner is that if Annexure R-12 is read in proper perspective one can easily say that on account of the complaint being made by the District Prosecution Officer to the Director, Public Prosecution, is nothing but casting stigma on the petitioner as he happens to hurl filthy abuses and his behaviour towards his officers is in indiscipline manner. Learned counsel has also invited my attention to para 8 of the return and has argued that on account of alleged quarrelsome nature of the petitioner his services were terminated. Thus, the impugned notice Annexure A-9 is stigmatic in nature. It has been further contended by Shri Verma that even if services of the petitioner were temporary in nature, his services could not have been terminated by casting stigma on him and his rights are governed and protected by Article 311 (2) of the Constitution of India. In support of his contention, learned counsel has placed reliance on two decisions of the Supreme Court. They are Jamail Singh v. State of Punjab [( 1986)3 SCC 277], and P.L. Dhingra v. Union of India [ AIR 1958 SC 36 ]. 6. On the other hand, Shri Tiwari, learned Dy. GA has submitted that petitioner was temporarily appointed on the post of clerk in CRPC and at the relevant point of time his services were governed by M.P. Government Servants (Temporary and quasi-Permanent Service) Rules, 1960 (in short "Rules of 1960"). According to learned Dy. GA since the services of the petitioner were temporary and he did not become quasi-permanent under the Rules of 1960, his services were terminated w.e.f. 24th March 1990, by giving notice to him on 16.2.1990 (Annex.A-9). The contention of learned Dy.GA is that since the petitioner was only a temporary Government servant, therefore, the impugned notice Annex.A-9 cannot be said to the arbitrary or not in consonance with law, on the contrary it is in consonance to rule 12 of the Rules of 1960. 7. Before dealing with the rival contentions of learned counsel for the parties. it would be apposite to consider the relevant provisions. 7. Before dealing with the rival contentions of learned counsel for the parties. it would be apposite to consider the relevant provisions. Article 311 (2) gives guarantee to a Government servant that he shall not be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges. The exceptions are given in the proviso to this Article. This Articles makes no distinction between permanent and temporary member of the services or between persons holding permanent or temporary posts. The petitioner was appointed on the post of clerk in CRPC though his appointment was temporary in nature, but for all practical purposes he would be deemed to be a member of civil service of the State and he was also holding a civil post under the State, and, therefore, provisions of Article 311 (2) are applicable to the petitioner. See decision of Parshotam Lal Dhingra (supra). 8. The State of Madhya Pradesh framed Rules of 1960. Rule 12 speaks about termination of temporary Government servant who is not in quasi permanent service. According to this rule, the temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice of one month in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. Thus, the services of a Government servant who has not become quasi-permanent can be terminated by giving one month's notice by either side. If impugned notice Annex.A-9 dated 16.2.1990 is considered on the touchstone of the Rules of 1960, one cannot say either it is arbitrary or is not in consonance to Rule 12 of the Rules of 1960. But, if the veil is lifted it is perceivable that by casting stigma the services of the petitioner were terminated. 9. In para 8 of the return it has been specifically pleaded by the respondents and have justified their action by issuing impugned notice Annex.A-9, for the following reasons: (i) the services of the petitioner were unsatisfactory; (ii) he was unreliable; (iii) he used to divulge official confidential information to others; (iv) he was found to be of quarrelsome nature; and (v) he was very insolent. Thus, by casting stigma, the services of the petitioner were terminated. Thus, by casting stigma, the services of the petitioner were terminated. It is well settled in law that the temporary Government servants are also entitled to the protection of Article 311 (2) of the Constitution of India, as the permanent employees, despite the fact that the temporary Government servants have no right to hold the post and their services shall be liable to be terminated at any time by giving them a month's notice without assigning any reason under the Rules of 1960. But the Court can lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is innocent as worded. In this regard I may profitably rely the decision of the Supreme Court in the case of Chander Prakash Shahi v. State of U.P and others [ (2000)5 SCC 152 ]. In this regard I may also place reliance on the decision cited by the learned counsel for the petitioner in the case of Jarnail Singh (supra), wherein the apex Court has held that Court can go behind an ex facie innocuous order of termination to find real basis of termination. In the case of Jamail Singh (supra), though the termination order, which was passed was in accordance with the terms of ad hoc appointment on ground that posts no longer required, but the order was found stigmatic in nature as the allegation of misconduct was made and in that situation the apex Court held that the order was punitive in nature and violative of Article 311 (2) of the Constitution. If the ratio decidendi of the decision of Jamail Singh is tested on the anvil of present factual scenario and particularly by reading pleadings made in para 8 of the return, which have quoted hereinabove, I have no scintilla of doubt in holding that sum and substance of the impugned notice, after lifting the veil, is punitive in nature. Admittedly no departmental enquiry has been conducted against the petitioner before holding him to be guilty for the stand which has been taken by the respondents. In this context I may also rely another decision of the Supreme Court in the case of Harpal Singh v. State of U.P and another [1988( 1) LLJ 329]. 10. Admittedly no departmental enquiry has been conducted against the petitioner before holding him to be guilty for the stand which has been taken by the respondents. In this context I may also rely another decision of the Supreme Court in the case of Harpal Singh v. State of U.P and another [1988( 1) LLJ 329]. 10. I may add that the termination of the petitioner was founded on the misconduct and it is not merely a motive. Because, in Annex.R-12 dated 29.1.1990 which is a confidential letter written by the District Prosecution Officer, Rewa to the Director, Public Prosecution, recommending to post the petitioner elsewhere from Rewa. In this letter it is written that the petitioner happens to hurl abuses and his attitude towards his officers is in indiscipline manner. One day he kept a piece of glass on the chair of PCD as a result of which one Constable Ramkalyan sustained injury. It appears that basing this document the impugned notice Annx.A9 to terminate the services of the petitioner was issued by the Director, Public Prosecution. Vide Annex.R-12 the District Prosecution Officer only recommended for the posting of the petitioner elsewhere from Rewa and basing the averments made in this document the services of the petitioner were not transferred and he was not given posting elsewhere but vide Annex.A-9 his services were terminated. Therefore, it can be said that by basing the very foundation of misconduct, the services of the petitioner have been terminated. 11. For the reasons stated hereinabove, this petition is allowed. The impugned notice Annexure A-9 dated 16.2.1990 terminating the services of the petitioner from 24th March, 1990 is hereby quashed. The respondents are hereby directed to take back the petitioner in service forthwith. However, looking to the facts and circumstances the petitioner shall not be entitled for any back wages. The parties are directed to bear' their own costs.