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2013 DIGILAW 896 (MP)

Mohd. Shakeel v. State of M. P.

2013-08-01

R.S.JHA

body2013
ORDER : R.S. Jha, J. The petitioner has filed this petition praying for setting aside order dated 18.4.2013 and to direct the respondents to retain the petitioner in service with all consequential benefits. It is submitted by the learned counsel for the petitioner that the petitioner was initially engaged as a Sub Engineer (Civil) for 89 days by order dated 20.9.1994 which period was extended from time to time. Subsequently, by order dated 18.4.1995 the petitioner was disengaged and removed from service being aggrieved by which he had approached the Labour Court by filing Case No. 41/M.P.I.R./96 and by order dated 29.7.1997 passed by the Labour Court, Shahdol, the petitioner was directed to be reinstated. 2. It is submitted that thereafter the case of the petitioner for regularization was favourably forwarded by the respondent Council with a request to create a post of Sub Engineer in Nagar Panchayat Chandiya so that the petitioner could be regularized on the said post. However, during the pendency of the matter before the State, the Council passed a resolution on 5.8.2006 removing the petitioner on the insistence of Ward Member of Ward No. 15. 3. The petitioner, being aggrieved by the said resolution, had approached the Collector and the Collector by order dated 30.7.2007 quashed the resolution of the Panchayat and directed the Nagar Panchayat concerned to take action against the petitioner in accordance with law after giving him an opportunity of hearing. 4. The Nagar Panchayat, Chandiya being aggrieved, had filed W.P. No. 12771/2007(S) before this Court seeking to assail the order passed by the Collector dated 30.7.2007. The said petition was dismissed by order dated 28.4.2011 by making the following observations:- On account of dismissal of this petition, interim order passed in this case, shall ceases its effect and the Nagar Panchayat is free to pass order to take back the respondent no. 3 or to take action in accordance with law. In the facts parties are directed to bear their own costs. 5. Pursuant to the order passed by this Court, the respondent Municipal Corporation/Municipality constituted a committee of 5 Ward Members for considering the case of the petitioner for removal. The Committee submitted its report on 18.4.2013 pursuant to which the order dated 25.4.2013 has been passed and the petitioner's services have been dispensed with. 6. 5. Pursuant to the order passed by this Court, the respondent Municipal Corporation/Municipality constituted a committee of 5 Ward Members for considering the case of the petitioner for removal. The Committee submitted its report on 18.4.2013 pursuant to which the order dated 25.4.2013 has been passed and the petitioner's services have been dispensed with. 6. The petitioner, being aggrieved by the action of the Nagar Panchayat, had filed Contempt Petition No. 1745/2011 which was dismissed by order dated 3.7.2013 in the following terms:- Alleging willful disobedience of order dated 28.4.2011 passed in W.P. No. 12771/2007(S) present contempt petition has been filed seeking action against respondents. W.P. No. 12771/2007 was decided in following terms: In that view of the matter I am of the considered opinion that the order passed by the Collector do not warrant any interference in the facts of this case. On account of dismissal of this petition, interim order passed in this case, shall ceases its effect and the Nagar Panchayat is free to pass order to take back the respondent no. 3 or to take action in accordance with law. Responding to the notice issued respondents state that the case of the petitioner was considered by constituting a Committee which in turn gave an opportunity of hearing to the petitioner. Thereafter a report was submitted on 18.4.2013; on the basis whereof, by order dated 25.4.2013 the petitioner's services have been dispensed with. Taking into consideration the direction issued in W.P. No. 12771/2007(S) and that the same has been acted upon, no case is made out of willful disobedience as would warrant any action against respondents. In view whereof, proceedings are dropped. Rule NISI discharged. 7. The petitioner has now filed the present petition assailing orders dated 18.4.2013 and 25.4.2013. The learned counsel for the petitioner submits that the impugned action of the Nagar Panchayat is malafide as the petitioner has been removed only at the behest of the Ward Member of Ward No. 15 and on account of the fact that the petitioner has filed a petition seeking his regularization and assailing the regularization of one Brijnandan Mishra W.P.S. No. 2247/2004 and W.P. No. 629/2000 which are pending before this Court claiming regularization. It is submitted that the action has been taken only to favour one Shri Brijnandan Mishra, Sub Engineer who has infact been regularized and transferred to another Nagar Panchayat during the pendency of the petition. It is further stated that the respondent authorities have only made a show of giving an opportunity of hearing to the petitioner whereas they have not done so and have reaffirmed the resolution passed by the Nagar Panchayat dated 5.8.2006 which infact had been quashed by the Collector and the order of the Collector had been upheld by this Court and on the aforesaid basis, it is contended that the impugned orders be quashed. 8. Having heard the learned counsel for the petitioner, it is observed that the petitioner was engaged on daily wage basis as a Sub Engineer; that he was disengaged in the year 1995 but was reinstated in the year 1997. It is also clear that the resolution of the Council dated 5.8.2006 proposing to remove him, had been set aside by the Collector and the order of the Collector has also been upheld by this Court. It is also abundantly clear from a perusal of the order passed by this Court in W.P. No. 12771/2007 that the Court, while dismissing the petition filed by the Nagar Panchayat, has stated that the respondent Nagar Panchayat is free to pass orders and to take back the petitioner or to take action against him in accordance with law. 9. It is also apparent that pursuant to the order passed by this Court, the Nagar Panchayat constituted a committee of 5 Ward Members namely; Shri Rajendra Soni, Vice President, Shri Ramswaroop Kushwaha, Sunil Kumar Gupta, Dinesh Kumar Agrawal and Smt. Mamta Kushwaha. From a perusal of Annexure P-16, the report of the Committee dated 18.4.2013, it is further clear that the committee took up the matter and examined the records and files and thereafter gave due opportunity of hearing to all concerned by issuing notices on 4.1.2013 pursuant to which replies were filed. The committee has also taken into consideration that during the period of the petitioner's service with the Nagar Panchayat, the petitioner was given several notices on 1.8.2005, 8.8.2005, 13.9.2005, 12.4.2006, 20.4.2006, 8.6.2006 and 22.6.2006 inspite of which he did not show any improvement nor did he care to give reply to the said notices. The committee has also taken into consideration that during the period of the petitioner's service with the Nagar Panchayat, the petitioner was given several notices on 1.8.2005, 8.8.2005, 13.9.2005, 12.4.2006, 20.4.2006, 8.6.2006 and 22.6.2006 inspite of which he did not show any improvement nor did he care to give reply to the said notices. The committee has also taken note of the fact that the aforesaid notices issued to the petitioner mostly related to financial irregularities. 10. It is further clear from a perusal of Annexure P-16 dated 18.4.2013 that after examining the entire record and giving the petitioner due and adequate opportunity of hearing and considering the record of his past service, the committee has recommended removal of the petitioner. 11. Though it is asserted by the learned counsel for the petitioner that no notices were ever issued to the petitioner, there is nothing on record to establish the same. It is pertinent to note, at this stage, that the petitioner is a daily wager and his case has been considered and an enquiry has been conducted only on account of the observations made by this Court in W.P. No. 12771/2007(S). 12. In view of the aforesaid circumstances, I am of the considered opinion that no fault can be found with the proceedings dated 18.4.2013 or the consequential impugned order dated 25.4.2013 dispensing with the petitioner's service as a daily waged Sub Engineer. I am also of the considered opinion that the petitioner has also been given notice and sufficient opportunity of hearing and for presenting his case and, therefore, though not necessary or required, the principles of natural justice have been complied with by the respondents. It is also observed that in view of the decision of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 , the petitioner has no statutory or fundamental right to claim regularization. In view of the aforesaid, the petition filed by the petitioner being meritless is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to the costs.