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Madhya Pradesh High Court · body

2020 DIGILAW 49 (MP)

NIKHAT KHAN v. STATE OF M. P.

2020-01-08

S.A.DHARMADHIKARI

body2020
ORDER : – In this petition, under Article 226 of the Constitution of India, petitioner has assailed the order dated 15-10-2014 passed by respondent No. 2 whereby services of the petitioner have been terminated. 2. Brief facts leading to filing of this case are that petitioner was initially appointed in the year 1985 as Copy/section Writer. Since the date of her initial appointment, petitioner is performing her duties with sincerity and utmost devotion. It is submitted that the appointment was made after following due procedure and as per norms of the State Government. Looking to the length of services, State Government had considered similarly situated employees for absorption in the regular cadre. As the case of the petitioner was not considered for absorption at par with similarly situated employees, petitioner had approached this Court by filing W. P. (S) No. 2604/2004, which was allowed with the direction to give appointment on regular basis on the post of LDC vide order dated 15-10-2004. However, the order was never complied with by the respondents. On 6-9-2014, to utter surprise of the petitioner, a news item was flashed in newspaper Patrika in relation to acceptance of illegal gratification by the petitioner for supplying copy of Khasra. Thereafter, on 18-9-2014, a news was again flashed wherein names of certain corrupt employees including the petitioner were mentioned, who were subjected to withholding of two increments. On the basis of aforesaid newspaper report, respondent No. 3 appointed an Inquiry Officer who conducted preliminary enquiry. It is submitted that the enquiry was conducted without any foundation, material or evidence on record and the Inquiry Officer held that petitioner had taken Rs. 200/- from respondent No. 4. On the basis of the aforesaid, the impugned order terminating the services of the petitioner has been passed. 3. Learned counsel for the petitioner contended that neither show-cause notice nor charge-sheet was issued to the petitioner. No regular enquiry was conducted and only on the basis of ceremonial inquiry, the impugned order has been passed. Moreover, the order is stigmatic which has been passed without giving slightest opportunity of hearing to the petitioner. The petitioner could not have been terminated without following principles of natural justice. The petitioner further contented that the impugned action on the part of the respondents is absolutely in violation of Articles 14 and 16 of the Constitution of India. Moreover, the order is stigmatic which has been passed without giving slightest opportunity of hearing to the petitioner. The petitioner could not have been terminated without following principles of natural justice. The petitioner further contented that the impugned action on the part of the respondents is absolutely in violation of Articles 14 and 16 of the Constitution of India. As such, the impugned order deserves to be set aside. To buttress his submissions, learned counsel has placed reliance on decision of this Court in the cases of Umesh Kumar Trivedi vs. State Committee, Rajiv Gandhi Prathmik Shiksha Mission, 2002(2) M.P.L.J. 391 and Rahul Tripathi vs. Rajeev Gandhi Shiksha Mission, 2001(3) MPHT 397 . 4. On behalf of respondent Nos. 1 to 3 it is submitted that petitioner is a temporary employee and no right had accrued to her. The enquiry was got concluded by the Collector, Gwalior from the Joint Collector and the Joint Collector has submitted his report. After receiving the enquiry report, impugned order has rightly been passed. 5. Heard, learned counsel for the parties. 6. On perusal of the record, it is seen that neither show cause notice nor charge-sheet was issued to the petitioner. This Court in the case of Deepak Nagle vs. State of M. P. and others, reported in 2014(2) M.P.H.T. 531 in paragraphs 4 and 5 held as under : – “4. Learned counsel for the petitioner submitted that services of the petitioner, who was a contractual employee have been terminated by a non-speaking order without affording him proper opportunity of hearing. It was further submitted that the investigation was carried out behind the back of the petitioner. In support of his submission learned counsel for the petitioner has placed reliance on the order dated 20th November, 2012 passed in the case of Makhan Lal Ahirwar vs. State of M. P., W. P. No. 5098/2012. On the other hand, learned Panel Lawyer has submitted that the opportunity of hearing was afforded to the petitioner and since the reply submitted by the petitioner was not found satisfactory, therefore, his services were dispensed with. 5. I have considered the respective submissions made by the learned counsel for the parties and have perused the record. The petitioner was appointed on contract basis. 5. I have considered the respective submissions made by the 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 vs. 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 emphasizing the need for assigning reasons, it was held that giving of reasons minimizing the chances of arbitrariness and hence, it is an essential requirement of the Rule of Law. In Secretary, and Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik 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 (supra). 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. 8. Accordingly, the writ petition is disposed of.” 7. 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. 8. Accordingly, the writ petition is disposed of.” 7. In the light of the aforesaid, this Court is of the considered opinion that the order which is stigmatic in nature could not have been passed, without affording opportunity of hearing to the petitioner, which amounts to violation of principles of natural justice. Resultantly, the writ petition is allowed. The impugned order dated 15-10-2014 (Annexure P/1) is hereby set aside. Respondents are directed to reinstate the petitioner, though she would not be entitled to any backwages on the principle of No work No Pay.