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Madhya Pradesh High Court · body

2017 DIGILAW 718 (MP)

Kamaljeet Tripathi v. State of M. P.

2017-05-24

S.A.DHARMADHIKARI

body2017
ORDER 1. The petitioner is aggrieved by the order dated 10.12.2007 (Annexure P-1) whereby the services of the petitioner have been terminated without enquiry and without following the principles of natural justice. 2. The petitioner is working on the post of Samvida Shala Shikshak Varg II at the Middle School, Kalyanpura, District Datia M.P. The respondents/State with the intention to appoint the Samvida Shala Shikshak Varg II had framed the rules known as M.P. Panchayat Samvida Shala Shikshak (Appointment and Service Conditions) Rules, 2001 in exercise of the power conferred under sections 70(2) and 95(1) and 95(3) of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. In pursuant to the said rules the Janpad Panchayat, Datia had issued an advertisement for appointment of Samvida Shala Shikshak Varg II and after following the procedure, the petitioner was appointed on the post of Samvida Shala Shikshak Varg II on 11.11.2003. After appointment, the petitioner was discharging the duties sincerely and honestly. At the instant of local residents, who wanted to get the appointment of the person of their choice, made a false complaint and an ex parte enquiry was conducted by one of the employee of the Sarv Shikshak Abhiyan. On 17.9.2007 a show cause notice was issued by the District Education Officer calling explanation as to why a penalty of stoppage of three increments with cumulative effect could not be imposed on the petitioner. The petitioner denied the allegation by filing the reply. The Chief Executive Officer without considering the reply imposed the penalty of three days work without salary. The copy of the order was never supplied but was executed. Thereafter again a second show cause notice was issued on 25.10.2007. The petitioner filed the reply to the show cause stating that since penalty of three days' work without salary had already been imposed, therefore, the matter had come to an end but the same was reopened at the instance/directions issued by the Director, Sarv Shiksha Abhiyan and penalty of termination has been issued without issuing any show cause notice. That being so, the order terminating the services without issuing any show cause or conducting any enquiry was illegal. 3. No reply has been filed by the respondents No.1 to 5. 4. That being so, the order terminating the services without issuing any show cause or conducting any enquiry was illegal. 3. No reply has been filed by the respondents No.1 to 5. 4. Respondent No.6 has filed the reply and has submitted that the appointment of the petitioner is covered by the M.P. Panchayat Samvida Shala Shikshak (Appointment and Service Conditions) Rules, 2001. In these Rules, procedure has been prescribed for the appointment and as per rule 8 the disciplinary control over the contract teachers will be with Zila Panchayat and Janpad Panchayat. An appeal has been provided under rule 9 against the order of termination. Without availing then alternative remedy of appeal, the present petition has been filed directly before this Court which is legally not maintainable. It is further mentioned that the termination is rightly passed on the basis of the report given by the authority after surprise checking on the spot. The petitioner was appointed on the contract basis, therefore, she had no legal right to retain the post. In the appointment letter a condition is mentioned that the services can be terminated at any time, if found unsatisfactory. 5. Learned counsel for the petitioner had contended that since punishment of three days work without salary having been imposed, second show cause notice could not have been issued. Secondly, it is contended that there is no application of mind. The enquiry was not conducted and the order of termination has been passed behind the back of the petitioner which amounts to violation of principles of natural justice. It is further contended that the petitioner has been terminated on the direction issued by the Director Sarv Shikshak Abhiyan which could have been done. The learned counsel for the petitioner has relied on the judgment of the apex Court, reported in (2011)5 SCC435, Joint Action Committee of Airline Pilots' Association of India (ALPAI) and others v. Director General of Civil Aviation and others to contend that if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. He has also placed reliance on the judgments, reported in 2002(1) JLJ 417 = 2002(5) MPHT 477 (Sanjiv Kumar Patel v. Janpad Panchayat Karanjiya and another [ AIR 1998 SC 3261 ], (Basudeo Tiwary v. Sido Kanhu University and others) and [ 2014(2) MPLJ 76 ], (Deepak Nagle v. State of M.P.) in support of his contentions. 6. The question in the instant case is whether the termination of the petitioner's services was proper or not. It is argued by the learned counsel for the petitioner that the appointment of the petitioner is legal and has been made after following the due procedure. Merely on the ground that the petitioner has committed certain misconducts and that too without considering the reply filed to the show cause notice, the respondents could not have terminated the services of the petitioner. Once the petitioner has been appointed, the right has been created in his favour and his appointment could be cancelled only after giving reasonable opportunity to the petitioner. Admittedly, no enquiry was conducted before passing the order of termination. The respondents ought to have conducted the enquiry and, thereafter, cancelled the appointment but without following the principles of natural justice and the facts and circumstances of the present case, the termination cannot be justified. The Supreme Court in the case of Shrawan Kumar Jha and others v. State of Bihar and others [( AIR 1991 SC 309 ), has held that cancellation of appointment was without following the principles of natural justice is not maintainable. 7. In the instant case also the respondents have cancelled the appointment without giving any opportunity of hearing to her in gross violation of principles of natural justice. That being so, the order impugned cannot be sustained. The petitioner who has a right to hold the post in view of the appointment, could not be dealt with in such a manner without issuing any show cause notice and without conducting any enquiry. 8. I am, therefore, of the considered view that in the instant case the order of the termination of the services of the petitioner is in violation of the principles of natural justice which cannot be allowed. Accordingly, the petition is allowed. The impugned order Annexure P-1 dated 10.12.2007 terminating the services of the petitioner is quashed and set aside. 8. I am, therefore, of the considered view that in the instant case the order of the termination of the services of the petitioner is in violation of the principles of natural justice which cannot be allowed. Accordingly, the petition is allowed. The impugned order Annexure P-1 dated 10.12.2007 terminating the services of the petitioner is quashed and set aside. This Court on 4.2.2008 has stayed the order of termination and according to the counsel for the petitioner, the petitioner is still working. The respondents are at liberty to proceed against the the petitioner in accordance with law, if so advised.