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Madhya Pradesh High Court · body

2020 DIGILAW 280 (MP)

Harshit Tiwari v. State of M. P.

2020-02-20

SANJAY DWIVEDI

body2020
ORDER 1. Pleadings are complete and the parties are agreed to argue the matter finally, accordingly, with their consent, it is heard finally. 2. This petition is under Article 226 of the Constitution of India questioning the validity, legality and propriety of the order dated 14.7.2017 (Annexure P/9) passed by respondent No. 3 and order dated 8.1.2018 (AnnexureP/12) passed by respondent No. 2. By the orders impugned, the services of the petitioner, who was working on the post of Assistant Engineer on contract basis, have not been extended w.e.f. 1.4.2017, which resulted into his termination. 3. The learned counsel for the petitioner has founded his challenge mainly on the ground that the respondents/authorities have passed the order in violation to the principle of natural justice, therefore, they are not sustainable in the eyes of law and, thus, quashment has been sought. 4. To resolve the controversy involved in the case, following facts in a nutshell are necessary to be taken note of : The Government of India sponsored a scheme, known as ‘Sarva Shiksha Abhiyan’ (for brevity ‘SSA’), with an object to strengthen the school education system uniformly and to ensure right to education to every child in the country. The State was the implementing agency and the said scheme is applicable in the education department. An advertisement was issued by respondent No. 2 on 20.9.2011, inviting applications for the post of Assistant Engineer. It was a competitive examination to fill up one post of Assistant Engineer and six posts of Sub-Engineers in District Education Centre, Rewa. The petitioner participated in the said selection process and secured first position in the merit list and was appointed w.e.f. 10.1.2012 as Assistant Engineer on contractual basis in District Education Centre, Rewa. He was performing his duties with all sincerity and to the satisfaction of his superior and as such, his yearly contract was renewed from time to time. The petitioner’s services were also appreciated and, in that regard, certificates have also been issued, which are made available on record by the petitioner. Under the scheme of SSA, the petitioner was mainly assigned the work of construction of school building, its supervision, mapping, etc. He was also assigned the work to ensure that the scholarships be delivered to the eligible and rightful candidates. Under the scheme of SSA, the petitioner was mainly assigned the work of construction of school building, its supervision, mapping, etc. He was also assigned the work to ensure that the scholarships be delivered to the eligible and rightful candidates. As per the petitioner, due to additional work assigned to him and Sub-Engineers, they could not concentrate on their main work, therefore, the work of SSA got suffered. The petitioner although apprised the officers about the additional work assigned to them, but his voice was ignored and to some extent got annoyed to respondents No. 3 and 4. The petitioner was also given some show cause notices and that were replied by the petitioner. However, the petitioner’s contract was renewed after assessing his work, as the same was found satisfactory and letters of appreciation have also been issued to him by the authority. Finally, a show cause notice was issued to the petitioner on 22.4.2017 (Annexure P/8) by respondent No. 4. As per the petitioner, orally he has satisfied the authority, i.e., respondent No. 4. It is stated by the petitioner that respondent No. 4 had no authority to issue any notice. Thereafter, an order has been issued on 14.7.2017 (Annexure P/9) by respondent No. 3, i.e., Collector, Rewa, taking cognizance of notice dated 22.4.2017 (Annexure P/8) and further that the said show cause was not replied by the petitioner, therefore, the services of the petitioner were not extended w.e.f. 1.4.2017 and as such, the same have been terminated. The reasons for terminating the services of the petitioner are shown in the show cause notice dated 22.4.2017. The petitioner thereafter preferred an appeal, but the appellate authority has rejected the same vide order dated 8.1.2018 (Annexure P/12) affirming the order passed by the Collector on 14.7.2017 (Annexure P/9). 5. The petitioner is criticizing the orders mainly on the ground that respondent No. 3 is not the competent authority to pass the order because as per instructions issued on 20.9.2011 (Annexure P/10), it is the District Level Committee which can extend or discontinue the contract services of the petitioner. It is also contended by the petitioner that the appellate authority has also passed the order behind his back. The order being stigmatic, therefore, proper opportunity of hearing was to be provided to the petitioner, but that was not done. It is also contended by the petitioner that the appellate authority has also passed the order behind his back. The order being stigmatic, therefore, proper opportunity of hearing was to be provided to the petitioner, but that was not done. Even, the petitioner has contended that the documents filed along with the memo of appeal have also not been considered by the appellate authority and, therefore, the order of the appellate authority is in violation of principle of natural justice and needs to be set aside. 6. The reply to the petition has been filed by the respondents stating therein that the petitioner was issued a show cause notice on 22.4.2017 (Annexure P/8) and considering the submissions made by the petitioner in his reply to the show cause notice, the order has been passed and his contractual services were terminated by giving reasons. It is also stated by the respondents that the appellate authority, after considering all material aspects so also the submissions made by the petitioner, has passed the order affirming the order of the Collector, Rewa. It is also stated by the respondents that the appellate authority has provided proper opportunity of hearing and considered all relevant issues and also assigned specific reasons showing lapses on the part of the petitioner and further as to why the services of the petitioner are not required in the department. 7. The petitioner has also filed rejoinder explaining therein that his services were discontinued w.e.f. 14.7.2017. It is stated by the petitioner that the progress of the work, which has been taken note of by the authority, is not fully related to the petitioner inasmuch as all those works have not been assigned to him and this fact was not taken note of by the authority. 8. During the course of arguments, the learned counsel for the petitioner has also pointed out that the appellate authority passed the order completely on a wrong premise and did not consider the reply to the show cause notice submitted by the petitioner; on the contrary, it is observed in the order impugned dated 8.1.2018 (Annexure P/12) that no reply to show cause was submitted by the petitioner. 9. 9. From the order of the appellate authority and conclusion drawn therein, it reveals that on 3.2.2017, show cause was issued to the petitioner, but the said notice was not replied and as such, he has violated the order issued by the State Level Committee. 10. I have perused the record and also considered the contentions of the learned counsel for the parties. 11. From a perusal of the order passed by the Collector, Rewa on 14.7.2017, it transpires that there was a reference of show cause notice dated 22.4.2017. The order further contained that no reply to show cause was submitted by the petitioner, therefore, his services have been terminated. Moreover, the appellate authority has referred the show cause notice dated 3.2.2017 and also observed that the said notice was not replied by the petitioner. 12. Inevitably, it is clear that the show cause notice considered by the Collector and the appellate authority were not similar but were distinct. Since the orders are being assailed by the petitioner mainly on the ground of non-compliance of the principle of natural justice and further that the petitioner has not been provided proper opportunity of hearing; in a matter of enquiry, the violation of principle of natural justice is not only a term used by the authority for following normal procedure, but the term ‘principle of natural justice’ has a great significance in the matter of disciplinary action and compliance of principle of natural justice has to be followed in strictosensu, otherwise the same would make the decision-making process defective. 13. In the order impugned dated 14.7.2017 passed by the Collector, Rewa, if show cause notices referred, i.e., dated 22.4.2017 and 4.5.2017 are seen, the show cause notice dated 22.4.2017 (Annexure P/8) was issued by the District Project Coordinator, i.e., respondent No. 4. In the reply submitted by the State, it is stated that the show cause notices issued and reply submitted thereto was considered by the Collector and thereafter the order has been passed, whereas from the statement made by the petitioner that the show cause notice was issued on 22.4.2017 by respondent No. 4 was without authority and it is also stated by the petitioner that the said authority was orally replied. From the order of appointment of the petitioner, it reflects that the District Project Coordinator, i.e., respondent No. 4 was not the competent authority to initiate any disciplinary proceeding against the petitioner. It is a settled principle of law, that if hearing is provided by a particular authority and order is passed by another, then said procedure does not fulfill the compliance of the principle of natural justice. 14. Here in this case, show cause notice was said to have been issued by respondent No. 4, who was orally satisfied by the petitioner, therefore, the order passed by another authority, i.e., Collector in reference of the show cause notice cannot be considered to be a proper compliance of principle of natural justice. Indeed, it is not a case of the respondents that the Collector before passing the order provided any opportunity of hearing to the petitioner, as such, in my opinion, the procedure adopted by the respondents for issuing the order dated 14.07.2017 is not in consonance with the requirement of principle of natural justice. 15. The Supreme Court in a case reported in AIR 1959 SC 308 (Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another), has observed as under : “31. The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.” Thus, in the light of the view taken by the Supreme Court and taking note of the facts of the present case, I have no hesitation to say that issuance of show cause notice by respondent No. 4 and order passed by respondent No. 3, cannot be said to be compliance of principle of natural justice. Accordingly, the basic order passed by the Collector, Rewa is not sustainable as the same is contrary to the basic requirement of law, i.e., principle of natural justice. 16. On adverting to the order of the appellate authority, it is gathered that the appellate authority has taken note of the show cause notice dated 3.2.2017, which is also available on record as Annexure P/8 and reply to the said show cause notice has been submitted by the petitioner on 25.2.2017, but from the order of the appellate authority, especially paragraph 7, it reflects that the petitioner was punished and his appeal was rejected considering the fact that show cause notice dated 3.2.2017 was not replied, whereas the reply of the said show cause notice is available on record and this fact has not been controverted by the respondents in their reply. Meaning thereby, the reply of the said show cause notice was not considered by the appellate authority and proceeded on presumption that show cause notice dated 3.2.2017 has not been replied by the petitioner and, therefore, appeal has been rejected. In such circumstances, there is no scintilla of doubt that even the appellate authority has not followed the principle of natural justice. The Collector, in its order, has considered some other show cause notice and has not taken note of the show cause notice which the appellate authority has considered. It is clear that the appellate authority has also not considered the material aspect and documents submitted by the petitioner and, therefore, the order passed by the appellate authority is also not sustainable in the eyes of law. 17. It is clear that the appellate authority has also not considered the material aspect and documents submitted by the petitioner and, therefore, the order passed by the appellate authority is also not sustainable in the eyes of law. 17. To reinforce his contention, the learned counsel for the petitioner has placed reliance upon a decision reported in 2014 SCC Online MP 424 (Ashish Kharev. The State of M. P. and others), in which, the Supreme Court relying upon a decision reported in 2001 (3) MPLJ 616 (Rahul Tripathi v. Rajeev Gandhi Shiksha Mission), has held that the order passed terminating the services without giving proper opportunity of hearing and especially without conducting an enquiry when facts are disputed, cannot be considered to be proper and, therefore, the order was set aside. 18. Furthermore, he has placed reliance on a decision reported in 2002 (2) MPLJ 391 (Umesh Kumar Trivedi v. State Committee, Rajiv Gandhi Prathmik Shiksha Mission and others), in which it is observed by the Court that even in case of contract employee if his appointment is renewed from time to time, cannot be removed from service and his services cannot be discontinued alleging some irregularities committed by him. As per the Court, the petitioner ought to have been required to reply the show cause and a bi-party enquiry which has been conducted before termination of his services. The relevant paragraph, in which the Court has observed sufficient compliance of principle of natural justice, is as follows : “9. In the return, there are serious allegations levelled against the petitioner of making appointment in an illegal manner and not distributing the books. As a matter of fact, petitioner ought to have been required to show cause and a bi-party enquiry should have been conducted into the allegations if the services of the petitioner were to be dispensed with on that basis. The misconduct alleged in the return was the “foundation” and not merely a “motive”. Thus, it was necessary to have conducted an enquiry. In Jarnail Singh and others v. State of Punjab and others ( AIR 1986 SC 1626 ), the Supreme Court held that in such circumstances, it is imperative to conduct an enquiry even where the services are ad hoc in its nature. Thus, it was necessary to have conducted an enquiry. In Jarnail Singh and others v. State of Punjab and others ( AIR 1986 SC 1626 ), the Supreme Court held that in such circumstances, it is imperative to conduct an enquiry even where the services are ad hoc in its nature. No enquiry was conducted and outrightly the petitioner was given march order, that too after rendering the services for about a period of five years. His services shall be deemed to be extended for want of specific order of extension and if termination was to be made, clause 4 containing the condition relating to termination should have been complied with. The impugned order Annexure P/2, thus, cannot withstand the judicial scrutiny. The same is liable to be quashed and is hereby quashed. The petitioner is directed to be reinstated along with back wages.” 19. The High Court further in case of Deepak Nagle v. State of M. P. reported in 2014 (3) MPLJ 188 , has observed as under : “5. I have considered the respective submissions made by learned counsel for the parties and have perused the record. The petitioner was appointed on contract basis. Clause 15 of the contract of appointment provides that in case the petitioner is found guilty of any misconduct or is involved in any criminal activities, the competent authority shall afford an opportunity of hearing to the petitioner and can terminate the appointment. Thus, it is evident that before terminating the services of an employee, who is employed on contract basis, an opportunity of hearing has to be afforded to the delinquent employee. 6. In S. N. Mukherjee v. Union of India [ (1990) 4 SCC 594 ], the Supreme Court has held that people must have confidence in the judicial or quasi-judicial authorities. While emphasising the need for assigning reason, it was held that giving of reasons minimising the chances of arbitrariness and hence, it is an essential requirement of the rule of law. In Secretary and Curator, Victoria Memorial Hall v. Howrah GanatantrikNagrik Samity and others [ (2010) 3 SCC 732 ], it has been held by the Supreme Court that reason is the heartbeat of every conclusion. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. In Secretary and Curator, Victoria Memorial Hall v. Howrah GanatantrikNagrik Samity and others [ (2010) 3 SCC 732 ], it has been held by the Supreme Court that reason is the heartbeat of every conclusion. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. It has further been held that recording of reasons is a principle of natural justice. It ensures transparency and fairness in decision making. Similar view has been expressed by a Bench of this Court in Makhan Lal Ahirwar v. State of M.P. (W. P. No. 5098/2012). 7. In the instant case, the inspection on the basis of which the show cause notice was issued to the petitioner was not carried out in the presence of the petitioner. Besides that, from perusal of the order of termination of the petitioner, it is evident that reply submitted by the petitioner has not been considered and no reasons have been recorded and merely conclusion has been recorded. The order of termination of the petitioner, which is stigmatic in nature has been passed in violation of principles of natural justice. The impugned orders, therefore, cannot be sustained in the eye of law. Accordingly, the orders dated 28.12.2012 and 22.1.2013 are hereby quashed. Needless to state, the respondents would be at liberty to take action against the petitioner, if so advised, in accordance with law.” 20. In view of the above and considering the existing facts as discussed hereinabove, it is clear that it is a case, in which, the authorities have terminated the services of the petitioner thereby not extended his contract appointment alleging irregularities, without providing him proper opportunity of hearing and even not considered the reply submitted by him. 21. In a matter of disciplinary action against the government servant, it cannot be treated as a casual exercise. The proceedings cannot be conducted with a closed mind. The officer initiating action should also be unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that government servant is treated fairly in proceeding which may culminate in imposition of punishment including dismissal/removal from service. 22. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that government servant is treated fairly in proceeding which may culminate in imposition of punishment including dismissal/removal from service. 22. Accordingly, in the firm opinion of this Court, the orders impugned dated 14.7.2017 (Annexure P/9) and 8.1.2018 (Annexure P/12) are not sustainable in the eyes of law and therefore they are hereby set aside. The respondents are directed to reinstate the petitioner in service forthwith. 23. Before parting with the case, a liberty is given to the respondents that if they still want to initiate disciplinary proceeding against the petitioner, the same can be done after following the principle of natural justice. 24. In the result, the petition is, accordingly, allowed.