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2022 DIGILAW 1021 (MP)

Ashok Mahajan v. State of Madhya Pradesh

2022-08-16

SATYENDRA KUMAR SINGH, SUBODH ABHYANKAR

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JUDGMENT Subodh Abhyankar, J. - This appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyalayaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 has been preferred by the appellant (writ petitioner in Writ Petition No.7885/2020) against the order passed by the Writ Court in Writ Petition No.7885/2020 on 12.01.2021 (Annexure A/1) whereby the writ petition filed under Article 226 of the Constitution of India has been disposed of with a liberty to the appellant to approach the Appellate Authority. 2. In brief, the facts of the case are that the appellant / writ petitioner was posted as Sub Engineer (Contract) since last around ten years at Sondhwa, District Alirajpur (MP). Admittedly, the appointment of the petitioner was contractual in nature, which was executed by the parties on 14.10.2010 and after three years of his services in District Barwani, he was transferred from District Barwani to District Alirajpur in the year 2013; and since then, he was discharging his duties in Alirajpur. As the petitioner's work was found to be satisfactory, his contract was also extended from time to time. 3. The case of the petitioner is that due to some labour problem, he was required to take off from the duty and did not join from 01.03.2020 to 15.03.2020 regarding which information was also given to the Authorities and thereafter from 25.03.2020, he was unable to join his duties, on account of Lock Down in the country. On 12.05.2020, the impugned order dated 12.05.2020 was served on the petitioner that his services have been terminated on account of his absence from work without obtaining leave from the Competent Authority. 4. The learned Writ Court has dismissed the petition on the ground of availability of alternative remedy, which is also mentioned in the order dated 31.12.2016, wherein an Arbitrator has been appointed to settle the dispute between the Panchayat & Rural Development Department and its contractual employee. 5. Learned counsel for the appellant has submitted that in the present case, the pleadings were already complete, but without adverting to the same, the petitioner is relegated to file an appeal before the Arbitrator. 6. It is submitted that it is a settled law that if an order is stigmatic and has been passed without affording any opportunity of hearing, then the employee can directly file a petition in the High Court, without resorting to the remedy available under the law. 7. 6. It is submitted that it is a settled law that if an order is stigmatic and has been passed without affording any opportunity of hearing, then the employee can directly file a petition in the High Court, without resorting to the remedy available under the law. 7. In support of his contention, Shri Manoj Manav, learned counsel for the petitioner has also placed reliance upon a decision of the Supreme Court in the case of Hirday Narain v. Income Tax Officer, Bareli reported as AIR 1971 SC 33 . He has also placed reliance on the following decision: - (1) Satyam Cineplexes Limited v. State of Madhya Pradesh & others reported in 2021 (2) MPLJ 293 ; (2) Alok Kumar Choubey v. State of Madhya Pradesh & others reported in 2021 (1) MPLJ 348 ; (3) Gopal Chourasiya v. State of Madhya Pradesh through its Secretary & others Division Bench decision dated 08.12.2020 in Writ Petition No.7135/2019 (Jabalpur); (4) Malkhan Singh Malviya v. State of Madhya Pradesh reported in ILR (2018) MP 660 (DB); and (5) Sohan Singh and others v. State of Madhya Pradesh & others reported in 2008 (3) MPHT 97 (DB). Counsel has also relied upon a decision of a Coordinate Bench of this Court rendered by Shri Dipak Misra, as his Lordship then was, in the case of Rahul Tripathi v. Rajeev Gandhi Shiksha Mission, Bhopal reported in 2001 (3) MPLJ 616 . 8. Learned counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out, as no error has been committed by the learned Writ Court in passing the impugned order. 9. Heard learned counsel for the parties and perused the record. 10. From the record, it is found that the Writ Court has relied upon a circular issued by the State Government on 31.12.2016 which has also been reproduced in the impugned order. 9. Heard learned counsel for the parties and perused the record. 10. From the record, it is found that the Writ Court has relied upon a circular issued by the State Government on 31.12.2016 which has also been reproduced in the impugned order. The aforesaid circular reads, as under: - e/;izns'k 'kklu iapk;r ,oa xzkeh.k fodkl foHkkx Hkksiky fnukad 31-12-2016 @@vkns'k@@ dzekad@15675@22@fo@LFkk-@2016&foHkkxh vkns'k dz247@22@fo@LFkk-@15fnukad 06-01-2016 }kjk lfpo] iapk;r ,oa xzkeh.k fodkl foHkkx ds fofHkUu ;kstukvksa@dk;Zdzeksa esa lafonk ij fu;qDr vf/kdkfj;ksa@deZpkfj;ksa ds fy, vkfcZVªsVj fu;qDr fd;k x;k FkkA mDr vkns'k ,rn~ }kjk fujLr fd;k tkrk gSA 2@ foHkkxh; ifji= dz- 16981@22@fo&@LFkk-@15 fnukad 01-12-2015 }kjk iapk;r ,oa xzkeh.k fodkl foHkkx ds varxZr fofHkUu ;kstukvksa@dk;Zdzeksa laxBuksa@ifj"k n esa lafonk ij fu;qDr vf/kdkfj;ksa@deZpkfj;ksa ds fy;s funsZ'k@'krsZ tkjh dh xbZ gSA lafonk gsrq tkjh funsZ'k@'krZs dh dafMdk 14 esa fuEukuqlkj 'krZ nf'kZr gS %& ^^lafonk vof/k ds nkSjku ;fn fdlh izdkj dk dksbZ fookn nksuksa i{kksa ds e/; mRiUu gksrk gS rks fookn dh fLFkfr esa vafre fu.kZ; ,d ek= vkfcZVªsVj] lfpo] iapk;r ,oa xzkeh.k fodkl foHkkx dk gksxk] tks nksuk sa i{kksa dks ekU;@ca/kudkjh gksxk rFkk bl fookn ds fujkdj.k dk {ks=kf/kdkj Hkksiky gksxkA fdlh Hkh i{k dks ,sls fookn ds fujkdj.k ds fy;s U;k;ky; ckf/kr jgsxkÞA 3@ ifji= esa nf'kZr mDr dafMdk 14 dks foyk sfir djrs gq, uohu dafMdk fuEukuqlkj izfrLFkkfir dh tkrh gS%& ¼1½ foHkkx rFkk mlds vkuq'kkafxd laxBuksa ds eq[;ky; ¼Hkksiky½ esa lafonk ij inLFk vf/kdkfj;ksa@deZpkfj;ksa dh lafonk vof/k ds nkSjku ;fn fdlh izdkj dk dksbZ fookn nksuksa i{kksa ds e/; mRiUu gksrk gS rks fookn dh fLFkfr esa vafre fu.kZ; ^^fodkl vk;qDrÞ dk gksxk] tks nksuks i{kksa dks ekU;@ca/kudkjh gksxk rFkk bl fookn ds fujkdj.k dk {ks=kf/kdkj Hkksiky gksxkA 2½ foHkkx ds varxZr ftyk iapk;r@tuin iapk;r@vU; LFkkuksa esa lafonk ij inLFk vf/kdkfj;ksa@deZpkfj;ksa dh lafonk vof/k ds nkSjku ;fn fdlh izdkj dk dksbZ fookn nksuks i{kksa ds e/; mRiUu gksrk gS rks fookn dh fLFkfr esa vafre fu.kZ; lacaf/kr ^^laHkkxk;qDrÞ dk gksxk] tks nksuks i{kksa dks ekU;@ca/kudkjh gksxkA laHkkxk;qDr dks iznRr ;g vf/kdkj vij laHkkxk;qDRk dks ugha fn;k tk ldsxkA 3½ Hkfo"; esa lafonk vf/kdkfj;ksa@deZpkfj;ksa dks lafonk lekfIr vkns'k tkjh gksus ds fnukad ls 45 fnol ds vanj vihy izLrqr djuk vfuok;Z gksxkA 4@ ;g vkns'k rRdky izHkko'khy gksxkA ¼jk/ks';ke tqykfu;k½ vij eq[; lfpo e/;izns'k 'kklu iapk;r ,oa xzkeh.k fodkl foHkkx In the aforesaid circular, Arbitrators have been appointed at various levels to settle the dispute between the parties arising out of the contract. 11. It is true that availability of alternative remedy is no bar in entertaining the writ petition, in case of violation of principles of natural justice, but the impugned order reveals that it is not a case that the Department has proceeded against the petitioner without even giving any intimation to him, in just every other paragraph of the impugned order, it is mentioned that the petitioner was served with various show cause notice on various occasions. In such circumstances, if an adverse order is passed against the petitioner, it cannot be said that he was not given any opportunity of hearing. Otherwise also, the proceedings before the Arbitrator cannot be said to be not efficacious in any manner, as the Arbitrator would also be required to decide the dispute, as per the settled law. 12. In such circumstances, the findings recorded in para 6 of the impugned order by the Writ Court in dismissing the petition with a liberty to the petitioner to prefer an appeal against the order of termination before the Commissioner, as per the aforesaid circular, cannot be faulted with. 13. The decisions upon which the counsel for the appellant has placed reliance are of no avail to the appellant. 14. Accordingly, Writ Appeal No.127/2021 stands dismissed with a liberty reserved to the appellant, as already observed in the impugned order by the Writ Court. 15. It is made clear that the Appellate Authority shall decide the petitioner's appeal, in accordance with law, by passing a reasoned and speaking order, without being influenced by any observation made by this Court or by the Writ Court while dismissing the petitioner's appeal and petition respectively. All the other pending interlocutory applications, if any, shall stand disposed of.