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Madhya Pradesh High Court · body

2020 DIGILAW 1266 (MP)

Yogesh Pathak v. State of M. P.

2020-12-10

S.A.DHARMADHIKARI

body2020
ORDER 1. In pursuance of the directions issued by the apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government. 2. Heard finally with the consent of both the parties. 3. Invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has prayed for issuance of writ in the nature of certiorari for quashment of order dated 3.8.2015 (Annexure P/2) whereby, the services of the petitioner have been terminated and also order dated 24.11.2015 (Annexure P/1) whereby the appeal filed by the petitioner has been dismissed confirming the order dated 3.8/2015 (Annexure P/2). 4. The brief facts leading to filing of this petition are that the petitioner was selected on the post of Constable in the year 2013 and after selection, the petitioner was sent for training. Character verification of the petitioner was conducted. However, to the utter surprise of the petitioner, order dated 3.8.2015 was issued stating therein that the work of petitioner during the period of probation indicates that he is not fit in the force, therefore, invoking provisions of Regulation 59 of M.P. Police Regulations, the services of the petitioner have been terminated. Appeal was also dismissed vide order dated 24.11.2015 without assigning any reason and passed non- speaking order which is not sustainable in the eyes of law. 5. Learned counsel for the petitioner submitted that respondents did not consider the fact before passing the impugned order that the petitioner has given his joining at the training centre and after giving his joining, he received the message from his home that his mother has suffered a stroke and thereafter, he informed to In-charge of training centre and come back to Mathura and at Mathura, he suffered an accident wherein some damage was caused to his backbone due to which he remained on bed from 12.6.2015 to 12.8.2015 which has resulted in absent of the petitioner. Thereafter, on 12.8.2015, the petitioner has given his joining at the training centre but he was not permitted to join the training. 6. Thereafter, on 12.8.2015, the petitioner has given his joining at the training centre but he was not permitted to join the training. 6. Learned counsel for the petitioner further submitted that vide impugned order dated 3.8.2015 (Annexure P/2), no reason has been assigned for terminating his services but reason assigned was that during probationary period, the petitioner was negligent in discharging his duties and it is not possible for him to become a good police officer which amounts to stigma. Before terminating the services, a show -cause notice ought to have been issued and a proper inquiry ought to have been conducted. The said action on part of the respondents clearly violates the right as envisaged under Article 311 of Constitution of India, thus, the impugned order deserves to be set-aside. 7. In support of his contention, learned counsel for the petitioner has placed reliance on the judgment of Apex Court in the case of D.K. Yadav v. J.M.A. Industries Ltd. [ (1993)3 SCC 259 ] in which it has been held that termination of service results in deprivation of right to livelihood, therefore, termination without holding any domestic inquiry violates the provisions of Articles 14 and 21 of Constitution of India. 8. Learned counsel for the petitioner has further placed reliance on the judgment of apex Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. Of Medical Sciences & Anr. [ (2002)1 SCC 520 ] in which Hon'ble apex Court held that one of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. In para 29 of judgment it is held that Generally speaking when a probationers appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. In para 29 of judgment it is held that Generally speaking when a probationers appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationers appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. 9. Learned counsel for the petitioner further submitted that respondents while passing the impugned order dated 03/08/2015 (Annexure P/2) mentioned that ßifjoh{kk/khu vof/k esa mldh dk;Ziz.kkyh ds ns[krs gq, mldk lUrks"kizn iqfyl vf/kdkjh cuuk vlaHkkfor gSAÞ which amounts to an stigma on the service career of the petitioner and he would not be in a position to seek appointment elsewhere. 10. The allegations incorporated in the order clearly establish that stigma has been cast and the same will affect the future prospects of the petitioner. 11. On the other hand, learned counsel for the respondents opposed the prayer and submitted that petitioner being a probationer has been terminated according to terms and conditions of the appointment order itself. Services of the petitioner were far from being satisfactory, he was removed from service and there was no necessity to conduct inquiry as he was on probation. In essence, learned counsel for the respondents/State submitted that order is termination of services of the petitioner in simplicitor. 12. Heard learned counsel for the parties. 13. The present factual matrix is to be tested on the aforesaid enunciation of law. To find out whether the order of termination is a termination simplicitor or punitive in nature it is apposite to refer to the order contained in Annexure P/2. The relevant portion of the same reads as under:- Þokfguh esa inLFk uovkj0 802 ;ksxs'k ikBd iq= Jh lrh'kpUnz ikBd] fnukad 17-2-14 dks uovkj0 ¼thMh½ ds in ij HkrhZ gqvk gSA ifjoh{kk/khu vof/k esa mldh dk;Ziz.kkyh ds ns[krs gq;s mldk lUrks"kizn iqfyl vf/kdkjh cuuk vlaHkkfor gSA iqfyl jsX;wys'ku ds iSjk 59 esa fn, x, izko/kkukuqlkj uovkj0 802 ;ksxs'k ikBd dh vkt fnukad 3-8-2015 iwokZUg ls lsok lekIr dh tkrh gSA^^ 14. On bare perusal of impugned order as well as order dated 8.2.2016 annexed with the return as Annexure R/1 reflects that main cause of termination is absence from duty without any information/notice to the Authorities. No show-cause notice or any inquiry was conducted before terminating the services of the petitioner. On scrutiny of the entire factual scenario, there remains no scintilla of doubt that order of termination passed against the petitioner is stigmatic in nature and cannot be regarded as termination simplicitor. Allegations incorporated in the order clearly establish that stigma has been cast and the same will affect future prospects of the petitioner, accordingly, orders dated 3.8.2015 (Annexure P/2) and 24.11.2015 (Annexure P/1) are hereby quashed. 15. Needless to emphasize, the petitioner shall be entitled to all consequential benefits. Accordingly, this petition stands allowed. However, respondents would be at liberty to proceed against the petitioner in accordance with law, if so advised. No order as to cost. Prashant Kaurav for petitioner; Ajay Raghuvanshi, Panel Lawyer for respondents/State.