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Madhya Pradesh High Court · body

2021 DIGILAW 65 (MP)

Sanju Rawat v. State of Madhya Pradesh

2021-01-21

SANJAY DWIVEDI

body2021
ORDER : Sanjay Dwivedi, J. 1. This petition has been filed by the petitioner questioning the legality, validity and propriety of the orders dated 18.08.2017 (Annexure P/7) and 22.03.2018 (Annexure P/16) whereby the services of the petitioner have been terminated and the appeal preferred against the order of termination has also been dismissed. 2. The services of the petitioner have been terminated vide order dated 18.08.2017 (Annexure P/7) by the respondent No. 3 on the ground that she has committed a misconduct and as per Condition No. 31 of the contract executed between her and the employer, her services can be terminated. Thereafter, an appeal was preferred by the petitioner and vide order dated 22.03.2018 (Annexure P/16) the same was also dismissed by the appellate authority. 3. The challenge is made basically on the ground that the order dated 18.08.2017 terminating the services of the petitioner has been passed by an incompetent authority as the appointing authority of the petitioner is Chief Executive Officer and only he can terminate the services of the petitioner invoking the power provided under Condition No. 31 of the contract and secondly on the ground that the order is punitive in nature because the services of the petitioner have been terminated alleging misconduct against her as defined under Madhya Pradesh Civil Services (Conduct) Rules, 1965 (hereinafter referred to as 'Rules of 1965'). However, no enquiry has been conducted by the respondents to determine the misconduct of the petitioner and as such the impugned order has been issued in violation of principle of natural justice. 4. To resolve the controversy involved in the case, necessary facts of the case in nutshell are that the petitioner was initially appointed on the post of Accountant vide order dated 29.04.2008 in the respondent-department w.e.f. 12.05.2008 and worked till 30.04.2012. Thereafter, an advertisement was issued in the year 2012 for appointment on the post of Assistant State Project Manager (Finance). The petitioner being a qualified person applied for the said post and finally she was appointed on the said post and accordingly the order of appointment was issued in her favour on 18.09.2012 (Annexure P/2). A contract was also executed between the petitioner and respondents containing the conditions of service of the petitioner. The petitioner being a qualified person applied for the said post and finally she was appointed on the said post and accordingly the order of appointment was issued in her favour on 18.09.2012 (Annexure P/2). A contract was also executed between the petitioner and respondents containing the conditions of service of the petitioner. As per the petitioner, she had performed the duties with full devotion and time and again her work was appreciated by her superiors and letters of appreciation were also issued to her. 5. On 13.07.2017, a show cause notice was issued to the petitioner alleging therein that one Alok Mishra, who was working in the department on deputation, was repatriated to his parent department, but, even after his repatriation, salary was paid to him for the months of May and June, 2017 and the amount of salary was deposited in his bank account. The said financial irregularity was pointed out by the representative of the Finance Section to the petitioner and she was made aware of the same, but, despite assuring that the said mistake would be rectified, nothing was done by the petitioner, which indicates that the petitioner had deliberately favoured the said employee and paid salary to him for two months unnecessarily. As such the allegations of misappropriation of money and causing loss to the department were made against the petitioner. The petitioner was directed to submit her explanation as to why for such misconduct and financial irregularity, her contract appointment be not terminated and appropriate legal action be not taken against her. The petitioner submitted reply to the said show cause notice on 17.07.2017 (Annexure P/5) explaining therein as to how the said mistake was occurred and according to her it was only a bona fide mistake and she had no intention to favour any one and to put the department in loss. The petitioner has also clarified that whatever monetary loss was caused to the department due to such mistake, she had deposited the said amount accepting her responsibility. 6. However, the respondent No. 3 has passed an order on 18.08.2017 saying that the reply as submitted by the petitioner is not found satisfactory and as per the condition No. 31 of the contract the financial irregularity committed by her comes under the definition of misconduct. Therefore, her contract services have been terminated. 6. However, the respondent No. 3 has passed an order on 18.08.2017 saying that the reply as submitted by the petitioner is not found satisfactory and as per the condition No. 31 of the contract the financial irregularity committed by her comes under the definition of misconduct. Therefore, her contract services have been terminated. Thereafter, an appeal was preferred by the petitioner, but, the said appeal was also dismissed by the appellate authority vide order dated 22.03.2018 (Annexure P/16). 7. Reply has been filed by the respondent Nos. 2 and 3 stating therein that the petitioner has knowingly disbursed the salary of an employee namely Alok Mishra, whose services had already been repatriated to his parent department. It has also been stated by the respondents that despite bringing the said fact into the notice of the petitioner, she had again disbursed the salary of the said employee, which indicates that it was being done by the petitioner knowingly otherwise she could have rectified her mistake. The respondents, in their reply have submitted that the order of termination is valid and also supported the order passed by the appellate authority and have asked dismissal of the petition. 8. Learned counsel for the petitioner has attacked on the order of termination dated 18.08.2017 passed by the respondent No. 3 mainly on the grounds that the said order is illegal as the same has been passed by an incompetent authority. He has submitted that the appointment of the petitioner was made by the Chief Executive Officer and as per Condition No. 31 of the contract, no other authority subordinate to Chief Executive Officer can invoke the power provided under said Condition for terminating the services of the petitioner. He submits that the appointing authority of the petitioner is respondent No. 2 and, therefore, the impugned order dated 18.08.2017 is liable to be set aside. He has further submitted that merely alleging misconduct and issuing show cause notice is not sufficient but, to determine the misconduct specially under the circumstance when the petitioner has denied such irregularity and submitted that the same was a bona fide mistake on her part and even otherwise the respondents have not suffered any monetary loss because whatever monetary loss alleged to have been caused because of the conduct of the petitioner, the same has been deposited by her. Ergo, taking a unilateral decision holding the petitioner guilty of the misconduct is a clear example of violation of principle of natural justice and without any enquiry reaching the conclusion that she has committed misconduct is not proper. Shri Dixit also submits that the order of termination itself is punitive in nature, a proper enquiry had to be conducted by the respondents, but, nothing has been done. Therefore, the action of the respondents is not as per the law and as such the impugned orders based upon such allegations cannot be permitted to be sustained. 9. Learned counsel for the petitioner has placed reliance in the cases of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal and others- 2001 (3) MPHT 397 , M.C. Mittal, Vs. State of M.P. and another- 2004 (4) MPLJ 87 , K.K. Gupta vs. State of M.P. and others- 2013 (3) MPLJ 386 and Ashutosh Rasik Bihar Purohit vs. Indian Red Cross Society and others-2020(1) MPLJ 397. 10. Per contra, learned counsel for the respondent Nos. 2 and 3 has supported the stand taken by them in their reply and submitted that so far the issue regarding competence is concerned, the same does not have any substance for the reason that the petitioner was appointed vide order dated 29.04.2008 by the Project Coordinator and the Project Coordinator is not the subordinate authority to the Additional Chief Executive Officer. Accordingly the order of termination cannot be said to have been passed by an authority subordinate to the appointing authority. He further submits that the services of the petitioner have rightly been terminated because as per Condition No. 20 of the contract, her conduct comes under the definition of a misconduct as per the provision of Rules of 1965. He has relied upon Condition No. 26, which makes employer competent to terminate the services of a contract employee even without assigning any reason by giving him minimum seven days notice. He further submits that Condition No. 31 very categorically provides that if any employee is found involved in any type of misconduct then his services can be terminated. He has also relied upon a decision reported in 2006 (1) M.P. Weekly Notes 15-State of Haryana vs. Satyendra Singh Rathore and has also reproduced the relevant portion of the said judgment in the reply. 11. He has also relied upon a decision reported in 2006 (1) M.P. Weekly Notes 15-State of Haryana vs. Satyendra Singh Rathore and has also reproduced the relevant portion of the said judgment in the reply. 11. After hearing rival contention of the learned counsel for the parties and after perusal of record, I am of the opinion that the impugned order dated 18.08.2017 (Annexure P/7) cannot be said to be issued by a competent authority i.e. appointing authority, but, it has been issued by an authority subordinate to the appointing authority and, therefore, the said authority is incompetent to invoke the power provided under Condition No. 31 of the contract and terminate the services of the petitioner. Learned counsel for the respondents has though referred Annexure P/1 saying that the appointing authority of the petitioner is Project Coordinator, but the said contention has no substance for the reason that Annexure P/1 is an order of appointment of the petitioner on the post of Accountant-cum-cashier because initially she was appointed on the said post in the year 2008, but, later on, she was selected and appointed on the post of Assistant State Project Manager (Finance) because she had applied for the said post in response to an advertisement issued by the respondent-department and accordingly Annexure P/2 was issued appointing her on the said post. From perusal of the order Annexure P/2 it is clear that the said order appointing the petitioner on the post of Assistant State Project Manager (Finance) was issued by the Chief Executive Officer. It is also clear from the said order that the petitioner was given a fresh appointment on the recommendation of the Selection Committee constituted by the department. From the document dated 30th April, 2012/7th May 2012 it reveals that the experience certificate was issued by the respondent-department certifying that the petitioner had worked from 12th May, 2008 to 30th April, 2012 in the department as an Accountant. From the document dated 30th April, 2012/7th May 2012 it reveals that the experience certificate was issued by the respondent-department certifying that the petitioner had worked from 12th May, 2008 to 30th April, 2012 in the department as an Accountant. The impugned order terminating the services of the petitioner clearly reveals that the same was issued invoking Condition No. 31 of the contract, which reads as under:- ^^31- lafonk ij fu;qDr vf/kdkjh@deZpkjh ds dnkpkj ;k fdlh vkijkf/kd fØ;kdyki esa layXu gksus ij fu;qDr Ákf/kdkjh ,slh lafonk fu;qfDr lekIr dj ldsxkA** From perusal of the aforesaid Condition, it is clear that if a contract employee is found involved in any misconduct then only the appointing authority can terminate such contract service. As per Condition No. 20 of the contract, the conduct of an employee would be governed with the provision of Rules of 1965 and, therefore, the definition of misconduct as has been defined in Rule 3 of the Rules of 1965, the services of the petitioner have been terminated. 12. I have considered judgments and orders on which the learned counsel for the petitioner has placed reliance. In the case of M.C. Mittal (supra), the High Court has very clearly laid down that the order of removal or termination of services should not be passed by an officer below the rank of the appointing authority. Further in the case of K.K. Gupta (supra) the Court has held that because the charge sheet was issued by an authority holding the current charge of the post of disciplinary authority and not holding the said post substantively, therefore, he cannot discharge the statutory function. The Court has also observed that the termination cannot be made by any subordinate authority of the appointing authority. It can only be done by the appointing authority. As per Annexure P/2, the order of appointment of the petitioner on the post of Assistant State Project Manager (Finance) was issued by the respondent No. 2. Therefore, the services of the petitioner can only be terminated by the respondent No. 2 and not by any other subordinate authority. The impugned order clearly reveals that the services of petitioner, who was holding the post of Assistant State Project Manager (Finance), have been terminated by respondent No. 3, which is not the competent authority and as such the order is illegal and is not sustainable in the eyes of law. 13. The impugned order clearly reveals that the services of petitioner, who was holding the post of Assistant State Project Manager (Finance), have been terminated by respondent No. 3, which is not the competent authority and as such the order is illegal and is not sustainable in the eyes of law. 13. Learned counsel for the petitioner has also submitted that the High Court in the case of Rahul Tripathi (supra) has very clearly laid down that even in the case of contract appointment if an employee is terminated alleging financial irregularities after issuing a show cause notice to him and reply filed by him is not found satisfactory then an enquiry is required to be conducted because the order of termination is stigmatic and cannot be regarded as a termination simpliciter. Such an order of termination would affect the future prospect of the employee and, therefore, proper opportunity has to be provided to him to defend himself and for that a regular enquiry is required to be conducted. Similar is the position in the present case also regarding allegation of financial irregularity, giving show cause notice to the petitioner and reply filed by her not found satisfactory, but no enquiry was conducted. The order of termination is, therefore, a stigmatic and the same cannot be termed as an order of termination simpliciter. In case of future appointment, the new employer can call the respective record containing allegation of financial irregularity and take adverse view, in such a case the petitioner shall suffer with great prejudice. Therefore, for determination of misconduct, especially the allegation of financial irregularity, an enquiry has to be conducted and there should be a clear finding in that respect. Merely because reply to show cause notice is not found satisfactory, that too without assigning any reason, cannot be said to be a proper finding given by the authority without giving proper opportunity of hearing to the petitioner and such a finding is not sustainable in the eyes of law. 14. Learned counsel for the respondents has also submitted that since the financial irregularity committed by the petitioner was a misconduct, therefore, as per the provisions of Rules of 1965, the authority had no option, but to terminate the services of the petitioner. 15. 14. Learned counsel for the respondents has also submitted that since the financial irregularity committed by the petitioner was a misconduct, therefore, as per the provisions of Rules of 1965, the authority had no option, but to terminate the services of the petitioner. 15. From perusal of show cause notice issued to the petitioner and reply to the said show cause notice submitted by her, it is clear that the petitioner had denied the allegation mentioning that it was only a bona fide mistake on her part and there was no deliberate irregularity committed by her for giving favour to a particular person and even otherwise no financial loss was suffered by the respondent-department. Therefore, under such a circumstance, a regular departmental enquiry was required to be conducted to determine as to whether petitioner had willfully favoured the said Alok Mishra, unauthorizedly making payment of salary in his favour even when he was repatriated to his parent department and was not entitled for the same or the same was done due to some bona fide mistake. The Supreme Court on several occasions has observed that removal of an employee from service on the ground of misconduct without giving him proper opportunity to explain whether charges levelled against him are correct or not cannot be said to be a proper decision as the same carries civil consequences. This court in the case of Ashutosh (supra) has relied upon several judgments of Supreme Court, specially on the case of Dharmpal Satyapal Limited vs. Deputy Commissioner of Central Excise, Gauhati and others, (2015) 8 SCC 519 in which it has been observed as under:- "It, thus, cannot be denied that the principles of natural justice are grounded in procedural fairness which ensures taking of correct decisions and procedural fairness in fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass orders which have civil consequences, affecting the liberty or property of an individual but the statute may not contain a provision for prior hearing. But, what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any statutory provision or not. The opportunity to provide hearing before making any decision is considered to be a basic requirement in the court proceeding. Later on, this principle has been applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. If the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries." The Court has further relied in the case of Nisha Devi vs. State of H.P. and others, (2014) AIR SCW 1611 in which the Supreme Court has observed as under:- "5. Trite though it is, we may yet again reiterate that the principle of audi alteram partem admits of no exception, and demands to be adhered to in all circumstances. In other words, before arriving at any decision, which has serious implications and consequences to any person, such person must be heard in his defence. We find that the High Court did not notice the violation of infraction of this salutary principle of law. Accordingly, on this short ground, the impugned Judgments and Orders required to be set aside, and are so done. We find that the High Court did not notice the violation of infraction of this salutary principle of law. Accordingly, on this short ground, the impugned Judgments and Orders required to be set aside, and are so done. The matter is remanded back to the Divisional Commissioner for taking a fresh decision after giving due notice to the Appellant and affording her an opportunity of being heard. The Divisional Magistrate, Kullu, shall complete the proceedings expeditiously, and not later than six months from the date on which a copy of this Order is served on him." 16. Accordingly, in view of the discussion made hereinabove, the impugned order dated 18.08.2017 (Annexure P/7) is illegal on the ground that the same has been passed by an incompetent authority and further the petitioner was not given proper opportunity of hearing and as such the said action of respondents suffers from violation of principle of natural justice and, therefore, not sustainable in the eyes of law. Thus, the impugned order dated 18.08.2017 (Annexure P/7) passed by the respondent No. 3 and the order dated 22.03.2018 (Annexure P/16) passed by the appellate authority are hereby set aside. Since the impugned order has been issued by an incompetent authority, therefore, any subsequent proceeding based upon the same also goes for the reason that when the foundation is defective and same goes, any structure based upon the same would also go. Accordingly, the respondents are directed to reinstate the petitioner in service without any back wages for the reason that the petitioner's services were on contract basis and since after termination she was not performing the duties, therefore, she is not entitled to get the back wages. The respondents are at liberty that if they are still of the opinion that action is required to be taken against the petitioner then they may do so in accordance with law following the principle of natural justice giving proper opportunity of hearing to the petitioner. 17. With the aforesaid, this petition is allowed and disposed of. However, in the facts and circumstances of the case, no order as to cost. Parties shall bear their own cost.