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2011 DIGILAW 685 (JHR)

Binod Ram v. State of Jharkhand

2011-07-15

POONAM SRIVASTAVA

body2011
ORDER Mrs. Poonam Srtvastava, J. 1. Since all these five writ petitions involve a common question for decision by this Court, they are being decided by a common judgment. 2. Prayer in these writ petitions is for quashing the order dated 4.8.2010 in W.P. (S) Nos. 6404 of 2010. 2399 of 2011. 3516 of 2011, 3590 of 2011, passed by Deputy Secretary, Department of Home, Government of Jharkhand, Ranchi. and the order dated 13.10.2010 passed by the Deputy Secretary, Co-operative Department, Government of Jharkhand, terminating the petitioners while they were still on probation and continuing with their training after their selection for the services of the Deputy Collector and Assistant Registrar, Cooperative Society respectively conducted by the J.P.S.C. 3. Grievance of all the petitioners is that they appeared in the competitive exam conducted by the J.P.S.C. The petitioners qualified in the Preliminary Test (P.T.) and also in the final written examination, and thereafter they appeared for Interview and finally they were selected. Final result was published after their Medical Examination. The petitioners were sent for training for a period of two years. Their probation period was almost on the verge of completion. The termination order was passed by the respondents without assigning any reason and also without issuance of notice. 4. I have heard Mr. Amit Sinha assisted by Mrs. Neeta Krishna, Advocate appearing for the petitioners in all the writ petitions. 5. The first submission is that in similar matters, bearing W.P. (S) No. 6167 of 2010 along with W.P. (S) Nos. 6672, 5885 and 4332 of 2010, four similarly situated candidates, who were also terminated by identical orders dated 10.8.2010, had challenged the said order before this Court in the aforesaid writ petitions. The said writ petition was allowed vide order dated 8.7.2011 and the order of termination was quashed. Learned counsel has placed the order in support of his contention that while allowing the writ petitions, this Court held that since no enquiry was conducted, neither any show cause was issued, the impugned order of termination was without affording a reasonable opportunity of hearing and thus, opposed to the principles of Audi Alteram Partem and also without following the procedure of law. 6. The submission is that the case of all the petitioners stand on equal footing and, therefore, the termination order is rendered opposed to the principles of natural justice. 6. The submission is that the case of all the petitioners stand on equal footing and, therefore, the termination order is rendered opposed to the principles of natural justice. Learned counsel has further argued and placed reliance on a decision in the case of Union of India and Ors. v. Mahaveer C. Singhvi reported in (2010) 8 SCC 220. This decision relates to the termination of an Officer, who was appointed after being selected by the U.P.S.C. and was undergoing training for Indian Foreign Service, but during the period of probation, he was issued an order of termination. The emphasis is on paragraphs 22 and 23 of the said decision which are quoted below :-- 22. The High Court by the impugned judgment dated 29.9.2008, accordingly quashed the Order of discharge of the respondent from the Indian Foreign Service dated 13.6.2002, along with the orders passed by the Tribunal on 4.9.2003 dismissing the respondent's OA No. 2038 of 2002 and on 14.11.2003 rejecting the respondent's Review Application No. 323 of 2003, with a direction to reinstate the respondent in the Indian Foreign Service cadre of the 1999 batch, along with all consequential benefits, including consequential seniority, within a month from the date of the order. 23. In allowing the writ petition filed by the respondent, the High Court referred to relied on the decision of this Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. (1999) 2 SCC 21 , wherein this Court had held that in cases where termination is preceded by an enquiry, evidence is received and findings as to misconduct of a definite nature are arrived at behind the back of the officer and where on the basis of such a report the termination is issued, such an order would be violative of the principles of natural justice. 7. The Delhi High Court in its judgment had quashed the order of discharge from the Indian Foreign Service and had also passed the order for his reinstatement, rejecting the contention raised on behalf of the Union of India. The High Court while passing the order has placed reliance on several decisions of the Apex Court, Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. (1999) 2 SCC 21 and Samsher Singh v. State of Punjab (1974) 2 SCC 8311 as well as in the case of Anoop Jaiswal v. Government of India and Anr. The High Court while passing the order has placed reliance on several decisions of the Apex Court, Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. (1999) 2 SCC 21 and Samsher Singh v. State of Punjab (1974) 2 SCC 8311 as well as in the case of Anoop Jaiswal v. Government of India and Anr. (1984) 2 SCC 369 . The Apex Court while dismissing the SLP on behalf of the Union of India upheld the decision of the High Court in totality and declined to interfere. Counsel appearing on behalf of the State has vehemently argued and tried to place certain materials on record to substantiate that the decision of the respondent is well founded and there are materials to support the contention and suspicion of the Government that malpractice was adhered to and certain other means were adopted to achieve the purpose and got selected in the examination. The allegations have been levelled for the first time in the counter-affidavit and it is contended on behalf of the State that these petitioners are an accused in the criminal case which was registered after these bunglings came to light. The allegation in the FIR is that the accused indulged in manipulation and interpolation in the marks as well as in the examination sheets. This was thoroughly scrutinised after receipt of complaint and, therefore, evidently, their selection is anything but on merit. The petitioners influenced certain officers of the Public Service Commission as well, who are also accused along with the petitioners. The objections on behalf of the State is that the petitioners are not entitled to be reinstated in service despite the fact that an order in an identical writ petition being W.P.(S) No. 6262 of 2010 setting aside the termination order. Counsel appearing on behalf of the State has vehemently opposed the directions for petitioners' reinstatement though he has admitted that the termination order was passed in violation of Article 311 (2) of the Constitution of India. 8. Counsel appearing on behalf of the State has vehemently opposed the directions for petitioners' reinstatement though he has admitted that the termination order was passed in violation of Article 311 (2) of the Constitution of India. 8. After hearing respective counsel at length and going through the decisions, it is apparent that the petitioners, who had submitted to the process of selection by appearing in the Preliminary Test (P.T.) as well as in the final examination and also in the Interview, were declared as selected candidates and they had undergone approximately two years of training but just before few days of their completion of probation period, they have been served with the termination order and, therefore, the order is liable not only to be quashed, but the petitioners are also entitled for their reinstatement, as the order of termination is clearly violative of Article 311(2) of the Constitution of India. The Constitution postulates that no person can be subjected to any action at the instance of the Government without affording an opportunity to such Government employee and also without apprising him of the grounds and reasons for which he is being subjected to punishment, which has been done in the instant case. Probationers like a temporan/ servant are also entitled to certain protection and their services cannot be terminated in a punitive manner without complying with the principles laid down in the Constitution upheld by the various High Courts as well as Apex Court. 9. It is also brought to my notice that an FIR was lodged instituting criminal proceedings, investigation is still going on and till date not completed. I am of the view, investigation will culminate only after submission of a police report under Section 173, Criminal Procedure Code, therefore, it is not known as to how long the criminal proceeding will continue, therefore, the petitioners should not be deprived of their claim. Since proceedings are continuing, it will reach its possible conclusion and a final decision will be arrived at by the concerned authority. 10. In the facts and circumstances, I am of the considered view that the petitioners who have completed their probation period or about to complete their probation period, are entitled to be permitted to join on the posts on which they were working, till they are duly served with a show cause notice and given an opportunity of hearing. 11. 10. In the facts and circumstances, I am of the considered view that the petitioners who have completed their probation period or about to complete their probation period, are entitled to be permitted to join on the posts on which they were working, till they are duly served with a show cause notice and given an opportunity of hearing. 11. It is made clear that the joining of these petitioners will be subject to the final decision in the enquiry proceeding, in the event the Government decides to hold an enquiry. 12. With the aforesaid observations/ directions, these writ petitions stand allowed. Petition allowed.