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Madhya Pradesh High Court · body

2017 DIGILAW 282 (MP)

Shashi Dixit v. State of M. P.

2017-02-22

SUJOY PAUL

body2017
JUDGMENT : Sujoy Paul, J. 1. This writ petition filed under Article 226 of the Constitution of India, takes exception to the orders dated 08.07.2010 (Annexure-P/1), 06.12.2012 (Annexure-P/2) and the inquiry report dated 29.05.2010 (Annexure-P/4). 2. Briefly stated, the case of the petitioner is that she was working as a Home Guard at Rewa. A complaint was allegedly preferred against her by one Mr. N.R. Pachori, District Commandant. Thereafter, an inquiry was conducted behind her back and inquiry report dated 29.05.2010 was prepared. In the said inquiry, the petitioner was held to be guilty. The inquiry was conducted by Ms. Sangita D. Kumar, the then Divisional Commandant Rewa, Division Rewa. The said inquiry report was also placed before a three members committee consisting of said Divisional Commandant, Rewa Division Rewa, District Commandant, Home Guard Rewa and ASI, Home Gurad Rewa. The committee accepted the recommendation and terminated the petitioner w.e.f. From 26.08.2010. 3. The impugned order is called in question on twin grounds. Firstly, the inquiry was conducted behind back of the petitioner and no opportunity of any nature has been given to the petitioner. Secondly, it is submitted that the person who has conducted the inquiry (Divisional Commandant) could not have acted as a disciplinary/punishing authority. 4. Mr. Singh, learned counsel for the petitioner apprised the Court that earlier W.P. No.10753/2010 was filed by the petitioner against the inquiry report and an interim order was passed on 18.08.2010. However, by that time since termination order dated 08.07.2010 was already issued, the petition was withdrawn with the liberty to challenge the termination order before the appropriate Forum. The petition was permitted to be withdrawn on 25.02.2011. 5. Mr. Yadav, leaned G.A. submits that the petitioner was working with Home Guard, which as per its nature is a voluntary organization. The rules applicable to the civil post holders or regular employees of State Government are not applicable. The petitioner's conduct was not found to be proper and satisfactory. Thus, by communication dated 09.03.2009, it was decided to apprise and warn the petitioner. Subject to giving that warning and subject to her proper conduct, she was given extension of three years. Attention was drawn on letter dated 08.04.2009 (Annexure-R/2). It is submitted that since petitioner's conduct was not proper, after holding inquiry, the decision was rightly taken by the competent authority. Subject to giving that warning and subject to her proper conduct, she was given extension of three years. Attention was drawn on letter dated 08.04.2009 (Annexure-R/2). It is submitted that since petitioner's conduct was not proper, after holding inquiry, the decision was rightly taken by the competent authority. It is submitted that service conditions of the petitioner are governed as per the circular dated 20.02.2003 (Annexure-R/3). It is further submitted that the decision is taken by the Additional Commissioner who is a competent authority as per Clause 6(i) of the said instructions. Mr. Yadav, leaned G.A. further submits that the petitioner withdrew her earlier petition and only liberty which was prayed for was to submit a departmental representation There was no statutory remedy of appeal available to the petitioner against the termination order. Hence, even if Annexure-P/2 is passed rejecting her representation against the termination order, this petition cannot be entertained against the termination order. 6. No other point has been pressed by the learned counsel for the parties. 7. I have heard the parties at length and pursued the record. 8. No statutory rule or statutory provision is brought to the notice of this Court which deals with service conditions of an employee. Reliance is placed on executive instructions dated 20.2.2003 (Annexure R/3). Relevant clause which deals with termination of an employee reads as under: ^^lsokeqfDr lEcU/kh funsZ'k%& 1- ;fn dksbZ Lo;alsoh gksexkMZ xaHkhj vuq'kklughurk fn[kkrkk gS vFkok lafnX/k xfrfof/k;ksa esa fyIr ik;k tkrk gS vFkok fjQzs'kj dkslZ ds nkSjku vukf/kd`r :i ls vuqifLFkr jgrk gS vFkok 12 ekg ;k vf/kd vof/k ls cqykus ds ckn Hkh fM;wVh esa ugha vkrk gS] rks ,sls Loa;lsoh gksexkMZ ds lEcU/k esa ftyk lsukuh foLr`r fjiksVZ lEcfU/kr lEHkkxh; lsukuh dks HkstsxsaA lEHkkxh; lsukuh fu.kZ; ysus gsrq l{ke gksaxsA** The enabling provision aforesaid is silent about giving opportunity of hearing before termination of service. The termination order clearly shows that it is based on alleged misconduct of the petitioner and such order, in my view, casts stigma on the petitioner. Thus, spinal issue is whether before passing such an order terminating the services of the petitioner, the principles of natural justice were required to be followed. 9. In the present case, admittedly, some inquiry was conducted behind the back of the petitioner and on the basis of such inquiry report, the impugned orders were passed. Thus, spinal issue is whether before passing such an order terminating the services of the petitioner, the principles of natural justice were required to be followed. 9. In the present case, admittedly, some inquiry was conducted behind the back of the petitioner and on the basis of such inquiry report, the impugned orders were passed. In the opinion of this Court, unless the principles of natural justice are expressly or by necessary implication are excluded, the same has to be read into the provision. This Court considered this aspect in extenso in 2013 (2) MPLJ 419 . The relevant portion reads as under: "21. On the basis of the development of law and its interpretation aforesaid shows that the principles of natural justice are implicit in quasi judicial as well as administrative action. The same view was taken by the Supreme Court by following Swadeshi Cotton Mills (supra) in Mangilal (supra), the Apex Court opined as under in Para 10:- 10. Even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely affected by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form of procedure should ever be permitted to exclude the presentation of a litigant's defence or stand. Even in the absence of a provisions in procedural laws, power inheres in every tribunal/Court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principles. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. (See Swadeshi Cotton Mills v. Union of India.) Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves. The principles of natural justice have many facets. Two of them are: notice of the case to be met, and opportunity to explain. (Emphasis Supplied) 22. The legal position stated above makes it clear that whether impugned order is outcome of a quasi judicial act or an administrative act in both the situations, principles of natural justice and fair play in action were the requirement of law. In other words, the impugned order could have been passed only after following the principles of natural justice and fair play in action. Fairness is an integral part of good administration. In my considered opinion, it has serious consequences on the petitioners and this order certainly falls within the amit of "civil consequences". The requirement of principles of natural justice and fair play was to examine, deal with, consider and discuss the reply filed by the petitioner. In absence thereof, the impugned order runs contrary to principles of natural justice and fair play in action. 23. This is settled in law that principles of natural justice does not supplant the law but supplements the law. Its application may be excluded either expressly or by necessary implication Dr. Umrao Singh Chaudhary v. State of M.P. Another, (1994) 4 SCC 328 . In Mohinder Singh Gill (supra), it is held by the Supreme Court that it is not permissible to interpret any statutory instrument so as to exclude natural justice. Unless the language of the instrument leaves no option to the Court. It is further observed that natural justice is so integral to the good government that the onus is on him who urges exclusion to make out why." (Emphasis Supplied) 10. Unless the language of the instrument leaves no option to the Court. It is further observed that natural justice is so integral to the good government that the onus is on him who urges exclusion to make out why." (Emphasis Supplied) 10. So far as the objection regarding maintainability of this petition is concerned, I do not find any substance in the said contention. Indisputably, in the first round, there is no adjudication on merits. The petition was permitted to be withdrawn with the liberty to challenge the inquiry report. The petitioner assailed the termination order by preferring a departmental representation. The said representation was rejected by the order of Director General, Home Guard, Head Quater, Bhopal. This order dated 12.06.2012 (Annexure-P/2), has gives a fresh cause of action to the petitioner. I am unable to hold that this petition is not maintainable. 11. In the light of aforesaid legal position, it is clear that the respondents have terminated the services of the petitioner without following the principles of natural justice. Resultantly, I deem it proper to set aside the impugned orders dated 6.12.2012 and 29.5.2010 Annexure P/2 and Annexure P/4, respectively. The respondents shall provide adequate opportunity to the petitioner and then pass a fresh order in accordance with law. However, in the peculiar facts and circumstances of this case, it is directed that the entire exercise be completed within four months from the date of production of copy of this order. Although this Court has set aside the impugned orders, the question of petitioner's reinstatement will depend upon the outcome of fresh exercise which is directed to be undertaken in the present order. The respondents shall take a fresh decision and decide the question of punishment/reinstatement etc. 12. With the aforesaid observation, the petition is allowed.