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Madhya Pradesh High Court · body

2010 DIGILAW 247 (MP)

RAKESH CHANDRA KEIN v. STATE OF MP.

2010-03-03

S.C.SHARMA

body2010
Judgment S.C.Sharma, J. ( 1. ) The petitioner before this Court has filed this petition challenging the order dated 12.06.2009 (Annexure P/1) passed by District Project Director, District Education Centre, Behind, by which his services have been put to an end. ( 2. ) The contention of the petitioner is that he was appointed as Assistant Engineer in Rajeev Gandhi Shiksha Misson vide order dated 05.03.1999 on contractual basis for a period of one year. The petitioner has further stated that the tenure was extended from time to time and on 12.06.2009 without granting any opportunity of hearing to the petitioner a stigmatic order was passed for discontinuing the services of the petitioner. He prayed for quashing of the aforesaid order. ( 3. ) Learned counsel for the petitioner has relied upon judgments delivered by this Court in the case of Umesh Kumar Trivedi Vs. State Committee, Rajiv Gandhi Prathmik Shiksha Mission and others, 2002 (2) M.P.L.J. 391 , Rahul Tripathi Vs. Rajeev Gandhi Shiksha Misson, Bhopal, 2001(3) M.P.L.J., 616 and Jitendra Vs. State of M.P. and others, 2008(4)M.P.L.J., 670. His contention is that even though the petitioner was serving on contractual basis, the respondents could not have been terminated the petitioner from service without granting any opportunity of hearing especially in view of the fact that the impugned order is stigmatic in nature. ( 4. ) Reply has been filed on behalf of the respondents and the stand of the State is that the petitioner was appointed purely on contractual basis on a fixed salary of Rs.5,500/- per month. The tenure of the petitioner was extended from time time. The respondents have also stated that as per the terms and conditions of the appointment order, the impugned order has been passed for discontinuing the services of the petitioner by giving him a months notice. The respondents have also stated that the petitioner has committed gross irregularities and as the petitioner was a contractual employee, no notice nor any fact finding enquiry is necessary in the present case. Respondents have relied upon the judgment delivered by the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi, 2006(4) SCC 1 . ( 5. ) Heard the learned counsel for the parties at length and with the consent of the parties, the matter has been finally heard and disposed of at motion stage. ( 6. Respondents have relied upon the judgment delivered by the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi, 2006(4) SCC 1 . ( 5. ) Heard the learned counsel for the parties at length and with the consent of the parties, the matter has been finally heard and disposed of at motion stage. ( 6. ) In the present case, the petitioner before this Court was appointed as Assistant Engineer in the services of the State Govt, under the Rajeev Gandhi Shiksha Mission by an order dated 05.03.1999. The initial appointment reflects that the appointment was for a period of one year. However, the same was extended from time to time. The order of termination dated 12.06.1999 reflects that the petitioner has committed large number of irregularities while serving as Assistant Engineer (contractual basis) and based upon the irregularities committed by the petitioner it was resolved by the District Project Director to discontinue the services of the petitioner. In the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal, this Court in paragraph 10 has held as under:- "10. The present factual matrix is to be tested on the aforesaid enunciation of law. To find out whether the order of termination is a termination simpliciter or punitive in nature it is apposite to refer to the order contained in Annexure P-18. The relevant portion of the same reads as under:- On a bare glance at the aforesaid order it becomes graphically clear that the petitioners appointment was extended from time to time but during his continuance serious allegations with regard to financial irregularities, were received. The order also reflects that the petitioner was asked to show cause in number of correspondences but the petitioner could not explain the charges levelled against him. It has also been mentioned in the order as the petitioner has committed financial irregularities and has not performed his duties with sincerity the work of the Mission has been affected and accordingly he has been removed. At this juncture, it is worthwhile to refer to the counter affidavit wherein it has been also mentioned that against the petitioner there were serious financial irregularities and he was asked to show cause but his reply was not found satisfactory. The return filed by the respondent No.3 also reflects the same. At this juncture, it is worthwhile to refer to the counter affidavit wherein it has been also mentioned that against the petitioner there were serious financial irregularities and he was asked to show cause but his reply was not found satisfactory. The return filed by the respondent No.3 also reflects the same. On a scrutiny of the entire factual scenario, there remains no scintilla of doubt that the order of termination passed against the petitioner is stigmatic and cannot be regarded as a termination simpliciter. The allegations incorporated in the order clearly establish that stigma has been cast and it will affect the future prospects of the petitioner. Accordingly, the case and it will affect the furture prospects of the petitioner. Accordingly, the order contained in Annexure P-1 8 deserves to be quashed and accordingly, I so do. Needless to emphasis the petitioner shall reap all the consequential benefits." ( 7. ) This Court in the case of Umesh Kumar Trivedi Vs. State Committee, Rajiv Gandhi Prathmik Shiksha Mission and others in paragraphs 9 and 10 has held as under:- "9. In the return, there are serious allegations levelled against the petitioner of making appointment in an illegal manner and not distributing the books. As a matter of fact, petitioner ought to have been required to show cause and a by-party enquiry should have been conducted into the allegations if the services of the petitioner were to be dispensed with on that basis. The misconduct alleged in the return was the "foundation" and not merely a "motive". Thus, it was necessary to have conducted an enquiry. In Jarnail Singh and others Vs. State of Punjab and others, AIR 1986 SC 1626 , the Supreme Court held that in such circumstances, it is imperative to conduct an enquiry even where the services are ad hoc in its nature. No enquiry was conducted and outrightly the petitioner was given march order, that too after rendering the services for about a period of five years. His services shall be deemed to be extended for want of specific order of extension and if termination was to be made, clause 4 containing the condition relating to termination should have been complied with. The impugned order Annexure P/2, thus, cannot withstand the judicial scrutiny. The same is liable to be quashed and is hereby quahsed. The petitioner is directed to be reinstated along with back wages. The impugned order Annexure P/2, thus, cannot withstand the judicial scrutiny. The same is liable to be quashed and is hereby quahsed. The petitioner is directed to be reinstated along with back wages. 10. Writ petition is allowed. Annexure P/2 is quashed. Reinstatement of the petitioner is directed along with back wages. Principle of "no work no pay" is not applicable as the petitioners removal has been found to be illegal and contrary to rules and without following the principles of natural justice." ( 8. ) A similar view has been expressed in the case of Jitendra Vs. State of M.P. and others, wherein, this Court in paragraphs 7 to 10 has held as under:- "7. After going through the impugned order; averments made in the petition; reply and rejoinder; it is clear that the respondents had issued a show-cause notice to the petitioner alleging the irregularities committed by him in purchasing various articles. Thereafter a three member Committee enquired and found illegalities and irregularities in the purchases. The decision of the Committee was on the basis of enquiry conducted behind the back of the petitioner. On the foundation of such report, the State Level Appointment Committee held the petitioners services to be unsatisfactory and took decision to terminate him from service. 8. True, it is that in the impugned order no allegation about unsatisfactory record or misconduct has been mentioned. However, a reference has been made in the said order of termination about the decision dated 14.6.2005 taken by the said State level Appointment Committee in an enquiry conducted behind the back of the petitioner. Having regard to this and the stand taken by the respondents to reply as referred to above it is graphically clear that foundation or the impugned order of termination is punitive in nature. On scrutiny of the entire factual scenario leading to the termination of the petitioners services, there remains no doubt that order of termination passed against the petitioner is stigmatic in nature and cannot be regarded as termination simpliciter. The foundation of impugned order is decision of the State Level Appointment Committee, which is based upon the enquiry report of the three Member Committee, which had conducted the enquiry behind the back of the petitioner. ( 9. ) In the case of Shamshersingh Vs. The foundation of impugned order is decision of the State Level Appointment Committee, which is based upon the enquiry report of the three Member Committee, which had conducted the enquiry behind the back of the petitioner. ( 9. ) In the case of Shamshersingh Vs. State of Punjab, AIR 1974 SC 423 , it has been held by the Supreme Court that form of the order is not conclusive and innocuously worded order can be passed on a foundation of grave charge. In the case of State of U.P. Vs. Ramchandra Trivedi, AIR 1976 SC 2547 , it was held by the Supreme Court, that the motive in passing an order of termination is not a relevant factor. What is determinative is the foundation on which it is based. It is foundation which makes the order punitive in nature. In the case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose, National Centre for Basic Sciences, Calcutta and others, AIR 1999 SC 983 , it has been held by the Supreme Court that the material which amounts stigma need not be mentioned in the order of termination of the probationer but might be contained in any document referred in the termination order or in its annexures. Obviously such a document could be asked for or called for by any future employer of the probationer. In such case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted. In the case of Radheshyam Gupta Vs. U.P. Industries Agro, (1999) 2 SCC 21 , the Supreme Court has held that where the termination is preceded by an enquiry and evidence is received and findings as to misconduct or a definitive nature are arrived at behind back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice in as much as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. In somewhat identical situation, learned Single Judge of this Court in the case of Rahul Tripathi Vs. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. In somewhat identical situation, learned Single Judge of this Court in the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Kendra, 2001(3) MPLJ 616 , has quashed the termination order and held that petitioner shall reap all the consequential benefits. ( 10. ) Having regard to the aforesaid legal position there remains no iota of doubt that the impugned termination order dated 18-6-2005 (Annexure P-9). though, innocuously worded but is founded upon the enquiry conducted behind the back of the petitioner about the alleged misconduct. In the circumstances, the same deserves to be and is hereby quashed. As a result, the petitioner shall be entitled for reinstatement will all consequential benefits". 9. In the present case, to find out whether the order of termination is a termination simpliciter or punitive in nature it is apposite to refer to the order contained in Annexure P-1. The aforesaid order reads as under:- ###C:\Program Files\Regentdatatech\Images\judgement_1107_ilr(mp)_2010_1107002ILR(MP)2010.jpg###C:\Program Files\Regentdatatech\Images\judgement_1107_ilr(mp)_2010_1107003ILR(MP)2010.jpg### 10. Keeping in view the aforesaid judgments delivered by this Court in an identical cases, as the order is certainly punitive and stigmatic in nature, the writ petition deserves to be allowed. The impugned order dated 12.06.2009 is hereby quashed. The respondents are directed to reinstate the petitioner forthwith and the petitioner shall entitle for all consequential benefits. No order as to costs. Petition allowed.