Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1404 (MP)

VIJAY SINGH YADAV v. STATE OF MP

2009-12-24

PRAKASH SHRIVASTAVA

body2009
Judgment Prakash Shrivastava, J. ( 1. ) THIS writ petition has been filed by the petitioner challenging the order dated 23.04.99, by which the services of the petitioner were terminated on the ground that his services were no longer required. ( 2. ) The brief facts are that the petitioner was appointed as salesman by order dated 01.04.93, by the Collector, Dhar, temporarily for the retail sale of the country liquor in the country and foreign liquor shop run by Government departmentally. The appointment of the petitioner was continued by giving him subsequent appointments for period of 89 days and he was allowed to work subsequently in that capacity. A criminal case was registered against the petitioner under Section 34 of the Excise Act on 15.04.99. Thereafter, the order dated 23.04.99 was passed terminating the services of the petitioner. Aggrieved with the same, the petitioner has approached this court by way of the present writ petition. ( 3. ) Learned counsel appearing for the petitioner submitted that the reply filed by the respondents indicates that the termination order of the petitioner was founded on the misconduct alleged in the reply, therefore, by lifting the veil, it can be seen that the termination order was stigmatic in nature. He further submitted that the persons appointed later in point of time have been retained, therefore, the termination of the petitioner cannot be sustained. ( 4. ) Learned counsel appearing for the respondents supported the order of termination and opposing the writ petition submitted that there was delay in filing the writ petition and that the petitioner was given an opportunity of hearing before passing the order of termination, therefore, no interference is required. ( 5. ) I have heard the learned counsel for the parties and perused the record. ( 6. ) So far as the objection of the respondents in respect of the delay in filing the writ petition is concerned, it is noticed that this writ petition has been received on transfer from the Tribunal. The impugned order is dated 23.04.99. The petitioner had filed the original application before the Tribunal on 04.09.2000, along with application for condonation of delay under Section 21 (3) of the Administrative Tribunals Act, 1985, and the Tribunal by order dated 12.09.2000 had allowed the application and condoned the delay. The impugned order is dated 23.04.99. The petitioner had filed the original application before the Tribunal on 04.09.2000, along with application for condonation of delay under Section 21 (3) of the Administrative Tribunals Act, 1985, and the Tribunal by order dated 12.09.2000 had allowed the application and condoned the delay. Even otherwise, on transfer, it has been registered as writ petition and for writ petition, there is no prescribed period of limitation. The petitioner has approached the court within a reasonable time. The matter was entertained in 2000 itself, therefore, at this stage, the writ petition cannot be dismissed on the ground of delay. ( 7. ) On merit the impugned order of termination is an order of termination simpliciter. The services of the petitioner have been terminated by stating that his services are no longer required. In the reply, the respondents have stated that the petitioner had committed serious irregularities and violated the conditions of appointment, therefore, his services were terminated. The respondents have also referred to the criminal case No. 455/99, dated 15.04.99, which was pending against the petitioner. Thus, the issue, which arises for consideration is whether in view of the stand taken by respondents in the return, the impugned order is stigmatic in nature?. ( 8. ) For examining the stigmatic nature of termination order, the court is required to see if the allegation made against employee was the "motive" for passing the order of termination or it was the "foundation" for the order terminating him. It will be a case of motive if the master, after gathering some prima facie facts, does not wish to go into their truth but decides merely not to continue a dubious employee but it will be a case of foundation if he conducts an enquiry only for the purposes of proof the misconduct. Employee is not hurt, if an enquiry was not held and no finding was arrived at and the employer was not inclined to conduct an enquiry, but at the same time, he did not want to continue the employee against whom there were complaints, such a case would only be a case of motive and the termination order would not be bad on the ground of being stigmatic or punitive. In such a case, the allegations would be motive and not foundation for passing the order and simple order of termination would be valid. ( 9. In such a case, the allegations would be motive and not foundation for passing the order and simple order of termination would be valid. ( 9. ) The aforesaid aforesaid preposition of law is supported by the judgment of the Supreme Court in the matter of Radhey Shaym Gupta Vs. U.R State Agro Industries Corporation Ltd. and Another reported in [1999] 2 SCC 21 wherein the Supreme Court has held that the termination of services of a temporary servant on the basis of an assessment that his work is not satisfactory is not punitive since in such a case assessment is not done with the object of finding out any misconduct on the part of the officer, but it was done only with a view to decide if he is to be retained in service. Even if the preliminary enquiry was held or regular departmental enquiry was initiated and dropped and thereafter simple order of termination is passed such an order is not punitive because no finding is recorded against him. Such an order is not based or founded upon misconduct. ( 10. ) Similarly in the matter of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre For Basic Science, Calcutta and Others reported in [1999] 3 SCC 60, the Supreme Court has held that if findings are arrived at in an enquiry as to misconduct behind the back of the officer or without a regular departmental enquiry, simple order of termination is to be treated as "founded" on the allegation and will be bad. However, if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and order would not be bad. ( 11. ) In the matter of State of Punjab and another Vs Sukh Raj Bhadur reported in AIR 1968 SC 1089 and in the matter of A.G. Benjamin Vs. Union of India reported in 1967 1 LLJ 718 (SC), though the departmental enquiry was initiated but it was later on dropped and order of termination simpliciter was passed, the Supreme Court upheld such an order of termination. In the matter of The State of Orissa and Another Vs. Union of India reported in 1967 1 LLJ 718 (SC), though the departmental enquiry was initiated but it was later on dropped and order of termination simpliciter was passed, the Supreme Court upheld such an order of termination. In the matter of The State of Orissa and Another Vs. Ram Narayan Das reported in AIR 1961 SC 377, the termination on the ground of unsatisfactory performance was not found to be stigmatic in nature. ( 12. ) Applying the aforesaid position of law in the facts of the present case, it is noticed that impugned order of termination does not contain any reason for termination except mentioning that the services of the petitioner were no longer required. The order of termination is not based upon the findings arrived at by the respondents in any ex parte enquiry, but it is based upon the allegations of irregularities and violating the conditions of appointment. It is undisputed that before passing the order of termination a criminal case was registered against petitioner under Section 34 of the Excise Act, therefore, if the respondents have passed the order of termination simpliciter considering these circumstances, then, such an order cannot be said to be an order founded on such allegation, but such allegations are only motive for passing the order of termination, therefore, by lifting the veil, it can not be held that the order of termination was stigmatic in nature. ( 13. ) Learned counsel appearing for the petitioner has placed reliance upon the judgment of the Supreme Court in the matter of Shrawan Kumar Jha and Others Vs. State of Bihar and Others reported in AIR 1991 S.C 309 , but the said judgment does not help the petitioner, since it was a case of cancellation of appointment and the counsel for the petitioner also could not point out that the petitioners in the said judgment were temporary employees. Reliance of the Counsel for the petitioner on the judgment of the Supreme Court in the matter of Delhi Transport Corporation Vs. D.T.C Mazdoor Congress and Others reported in AIR 1991 S.C 101 is also misplaced, since that is a case where Supreme Court has examined the right of the employer to terminate services of permanent employee without holding enquiry, whereas in the present petitioner was only a temporary employee. ( 14. D.T.C Mazdoor Congress and Others reported in AIR 1991 S.C 101 is also misplaced, since that is a case where Supreme Court has examined the right of the employer to terminate services of permanent employee without holding enquiry, whereas in the present petitioner was only a temporary employee. ( 14. ) Learned counsel for the petitioner has also submitted that the termination of the petitioner cannot be sustained because his juniors have been retained. In support of his submission learned counsel for the petitioner has placed reliance upon paragraph 35 of the judgment of the Supreme Court in the matter of Jarnail Singh and Others Vs State of Punjab and Others reported in (1986) 3 SCC 277 . The said judgment does not help the petitioner, since the case of the petitioner stands on different footing. The petitioner has been terminated after giving an opportunity of hearing and even after lifting the veil, it is not found that the termination order in the case of the petitioner was stigmatic or punitive. The petitioner being a temporary employee had otherwise no right to claim continuance on the post on which he was appointed, therefore, considering the circumstances of the present case, no relief can be granted to the petitioner only on the ground that one person allegedly appointed for 89 days by order dated 15.07.96 has been allowed to continue. ( 15. ) It is also worth noting that the respondents had issued the show cause notice dated 12.04.99 to the petitioner pointing out the irregularities committed by him in the performance of his duty and, therefore, before passing the order of termination simpliciter, the petitioner was duly informed about the lapse on his part and given an opportunity. ( 16. ) It is worth noting that the appointment of the petitioner was not permanent in nature. He was given the appointment for the period of 89 days though he was allowed to continue thereafter. The appointment order indicates that in terms of the appointment order no right had accrued to the petitioner to continue on the post on which he was appointed. He was given the appointment for the period of 89 days though he was allowed to continue thereafter. The appointment order indicates that in terms of the appointment order no right had accrued to the petitioner to continue on the post on which he was appointed. In the case of appointment on temporary basis, a servant who is so appointed does not acquire any substantive right to the post and even if the order is silent it is an implied term of such an appointment that it may be terminated at any time without notice and in such a case, it is not necessary to follow the formalities contemplated by Article 311 of of the Constitution and such as appointee has no right of hearing before termination. Same is the view taken by the Supreme Court in the matter of Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd Vs. Devendra Kumar Jain and others reported in (1995) 1 SCC 638 . ( 17. ) The respondents have also taken the stand in the reply that the appointment of the petitioner can at the most be held to be an appointment as contingency paid employee. His appointment was not against the regular post, therefore, the MP. Civil Services (General Condition of Services) Rules, 1961, will not be applicable to the petitioner in view of the definition of post given under the said Rules, therefore, no enquiry under the said rules could be held. ( 18. ) It is also worth noting that admittedly, the petitioner was appointed as salesmen in the country liquor shop since the State Government had under taken a scheme for running various country and foreign liquor shops in certain Districts of Madhya Pradesh, departmentally without auctioning the rights thereof to trade the foreign liquor in favour of private contractor. The reply shows that w.e.f. financial year 2001-2002, the departmentally operated liquor shops have been auctioned to private contractors, therefore, in the change circumstances also no relief can be granted to the petitioner. ( 19. ) Even otherwise, the order dated 23.03.01 indicates that only those salesmen, who were appointed in the liquor shop prior to 31.12.88 have been kept in service and those who were appointed thereafter have not been kept in service, therefore, in terms of the said circular also the petitioner has not right to continue in service. ( 20. ( 19. ) Even otherwise, the order dated 23.03.01 indicates that only those salesmen, who were appointed in the liquor shop prior to 31.12.88 have been kept in service and those who were appointed thereafter have not been kept in service, therefore, in terms of the said circular also the petitioner has not right to continue in service. ( 20. ) In view of the aforesaid analysis, I find no reason to interfere in the impugned termination order dated 23.04.99. There is no force in the writ petition and the petition is accordingly, dismissed. No orders as to costs.