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Madhya Pradesh High Court · body

2012 DIGILAW 1185 (MP)

Makhan Lal Ahirwar v. State of M. P.

2012-11-20

RAJENDRA MENON

body2012
ORDER 1. Challenging the order dated 15.2.2012 by which contract appointment of the petitioner is terminated (Annexure P/4), petitioner has filed this writ petition. 2. Petitioner was appointed as a Sub-Engineer on contract basis after due selection vide order Annexure P/1 dated 6.11.2006. As per the terms and conditions of appointment Clause 15 of the appointment order contemplates that if service of the petitioner which is on contract basis is to be terminated on allegations which constitute misconduct or which are serious in nature, the same can be done only after granting due opportunity of hearing to the petitioner. Grievance of the petitioner in this writ petition is that by the impugned order which is stigmatic in nature the contract is terminated on allegations which amounts to misconduct and as the proper enquiry or opportunity of hearing is not granted, the same is unsustainable. 3. Shri N.S. Ruprah, learned counsel for the petitioner invited my attention to Clause 15 of the appointment order Annexure P/1, the conditions stipulated therein as indicated herein above and submitted that while petitioner was working, a show cause notice Annexure P/2 was issued to him on 22.3.2010. In this show cause notice the allegations were with regard to improper recording of measurement in the MB Book and thereby causing embezzlement. It is stated by Shri Ruprah that vide his reply dated 20.4.2010 petitioner explained the position and gave his defense. However, treating his reply to be admission and by holding that no reply had been submitted impugned action is taken. Similarly a second show cause notice dated 12.5.2011 was issued to the petitioner. To this also petitioner submitted the reply on 18.7.2011. Thereafter, a third show cause notice Annexure P/3 was issued to which also petitioner submitted a reply but without taking note of the reply of the petitioner and merely on the ground that petitioner has not given his justification or reply to the show cause notices, impugned action is taken. Contending that the action is taken without hearing the petitioner, without considering his reply to the show cause notice, the same is stigmatic in nature and therefore, could be done only after proper enquiry is conducted. Contending that the action is taken without hearing the petitioner, without considering his reply to the show cause notice, the same is stigmatic in nature and therefore, could be done only after proper enquiry is conducted. Shri Ruprah prays for interference into the matter and in support of his aforesaid contention to the effect that even for terminating the contract employment if the termination is for allegations which amounsts to misconduct then opportunity of hearing should be granted, he invites my attention to a judgment rendered by this Court in the case of Mission Director, RCH/NRHM Vs. Ranjit Jain and another - 2011 MPLSR 361 and two other judgments on similar grounds in the matter of termination of contract employees, they are : Rakesh Chandra Kein Vs. State of M.P. & Others - ILR (2010) MP Page 1107 and Jitendra Vs. State of M.P. & Others - 2008(4) MPLJ 670 . Thereafter, Shri Ruprah took me through the allegations leveled in the show cause notice, MB book submitted by the petitioner and other material adduced and submitted that without adverting to consider his explanation and without conducting a proper departmental enquiry a stigmatic order is passed casting usurpation on the petitioner that also without giving him proper opportunity of hearing. Referring to the receipt about acknowledgment of measurement book submitted by the petitioner filed as Annexure P/3C, the ducuments and other material supplied by the petitioner in his reply Annexure P/3(A) and P/3(B), Shri Ruprah submitted that as action is taken in the matter for terminating the services of the petitioner on allegations which constitute misconduct, proper opportunity of hearing and enquiry should have been conducted and the same having not been undertaken, the action is unsustainable. 4. Respondents have refuted the aforesaid and it is stated that as petitioner was only a contract employee and as the contract appointment is terminated in accordance to the terms and conditions of appointment, there is no illegality in the matter. That apart, it is stated by the respondents that even before terminating the services of the petitioner as a show cause notice is issued, there is no illegality and therefore, the grievance of the petitioner is baseless. That apart, it is stated by the respondents that even before terminating the services of the petitioner as a show cause notice is issued, there is no illegality and therefore, the grievance of the petitioner is baseless. Finally, it was argued that under the scheme in which petitioner is appointed, a provision for appeal is contemplated as is evident from Annexure R/1 and as the appeal is maintainable, petition directly this Court, is not proper. Accordingly, on the aforesaid contentions, learned counsel for the State Shri Rajesh Tiwari prays for dismissal of the writ petition. 5. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that even though petitioner is appointed on contract basis but Clause 15 of the order of appointment Annexure P/1 clearly contemplates that if the contract appointment is to be terminated on allegations of misconduct or on other allegations of offences then a proper opportunity of hearing has to be granted before terminating the contract appointment. Even otherwise the Division Bench of this Court in the case of Ranjit Jain (supra) after taking note of various judgments of Supreme Court and after considering the provisions of Article 21 of the Constitution has held that even for terminating a contract appointment on the grounds of misconduct opportunity of hearing and passing a speaking order is a requirement of law and if the same is not done, the action is illegal. Similar is the view taken by learned Single Judges of this Court in the case of Jitendra (supra) and Rakesh Chandra Kein (supra). That being so, the principle of law on the question is well settled and the law contemplates that even for terminating the services of a contract employee, if the termination is on allegations of misconduct then an opportunity of hearing has to be granted and if the action is taken without grant of any such opportunity, the action impugned stands vitiated. In this case, apart from the aforesaid legal principle, even the terms and conditions of the contract i,e, Clause 15 of Annexure P/1 warrants grant of opportunity of hearing if the termination is for allegations. 6. In this case if the impugned order Annexure P/4 is taken note of it would be seen that the contract appointment of the petitioner is terminated on various allegations which have been levelled against him. 6. In this case if the impugned order Annexure P/4 is taken note of it would be seen that the contract appointment of the petitioner is terminated on various allegations which have been levelled against him. These allegations do amounts to misconduct and it is only stated in the termination order Annexure P/4 that petitioner has not replied to the show cause notice and therefore, the impugned action is taken. This assertion made in the impugned order seems to be incorrect. Because available on record are various documents namely the reply dated 20.8.2010 submitted by the petitioner in response to the first show cause notice dated 22.3.2010. This reply is submitted to the Chief Executive Officer, Janpad Panchayat, Chhatarpur who has forwarded it in original to the competent authority. Similarly in response to the second show cause notice dated 12.5.2011 it seems that petitioner had submitted a reply on 18.7.2011 but on the ground that this reply is submitted belatedly it was not taken note of. That apart, petitioner has filed various responses and documents to show that he has submitted the Measurement Book and given various explanation so also detailed report dated 6.3.2012 which is available at page 26 of the paper book. All these documents do show that in response to the show cause notice issued, petitioner has submitted certain documents like measurment book and given his explanation. Inspite of the same by simply holding that petitioner has not submitted any reply, impugned action is taken. It is a case where the termination of the petitioner is brought about without giving him proper opportunity of explanation and defense and without considering the submissions made by him. The order impugned apart from being defective on the aforesaid grounds suffers from another infirmity in as much as the explanation and documents and measurement book submitted by the petitioner are not taken note of and a non-speaking order in passed. That being so, it is a case where the contract appointment of the petitioner is terminated without granting him proper opportunity of hearing and without considering his explanation and therefore, in view of law laid down in the cases relied upon by Shri N.S. Ruprah, termination is unsustainable. That being so, it is a case where the contract appointment of the petitioner is terminated without granting him proper opportunity of hearing and without considering his explanation and therefore, in view of law laid down in the cases relied upon by Shri N.S. Ruprah, termination is unsustainable. Even though respondents has said that petitioner has a remedy of appeal but considering the fact that the termination is in violation to the principles of natural justice, it is not appropriate to relegate the petitioner to take recourse to the remedy of appeal. 7. The Division Bench in the case of Ranjit Jain (supra) has held that if such a termination is quashed, liberty should be granted to the employer to proceed in accordance to law. 8. Keeping in view the aforesaid, this petition is allowed. Order impugned dated 15.2.2012 is quashed. Respondent are directed to reinstate the petitioner and grant him all consequential benefits of salary etc. but they are free to proceed in the matter in accordance to law by conducting a proper procedure for terminating the services after following such procedure. 9. With the aforesaid liberty to the respondents, this petition stands allowed and disposed of.