RAHUL S/o AMOLAKCHAND JAIN v. STATE OF MADHYA PRADESH
2022-04-21
VIJAY KUMAR SHUKLA
body2022
DigiLaw.ai
ORDER : – In the instant petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 5-3-2020, by which the contractual services of the petitioner have been put to an end on account of violation of clause 11.2 of the Human Resources Manual (in short H. R. Manual). The said order is challenged mainly on the ground that the action of the respondent No. 2 is in violation of the fundamental rights of the petitioner guaranteed under Article 14 and 16 of the Constitution of India. 2. The facts of the case is that the petitioner was initially appointed on 24-12-2005. In the year 2014, the petitioner was assigned the work of District Community Mobilizer at Khargone. The petitioner was caught red-handed in the office premises. The Lokayukt Department has issued a letter to the respondent to transfer the petitioner to some other place. Thereafter, the petitioner was transferred to Umaria by the respondents. Subsequently, the petitioner was served with a show cause notice. The petitioner had given reply to the said show cause notice. By the impugned order dated 5-3-2018, the services of the petitioner has been terminated in view of clause 11.2 of the H.R. Manual. 3. Learned counsel for the petitioner submitted that the aforesaid order is stigmatic in nature and therefore, the order of termination could not have been passed without holding any inquiry in the matter. It is also submitted that the petitioner has been discriminated as the employees facing the cases by Lokayukt have only been transferred and they have not been terminated by the respondent No. 2. Thus, the order is discriminatory in nature. 4. It is further submitted that vide Annexure P/9, the stand of the department was that the petitioner was not involved in the commission of the offence. 5. In support of his submission, learned counsel for the petitioner placed reliance in the order dated 2-8-2017 passed by the co-ordinate bench of this Court in the case of Ramcharan vs. State of Madhya Pradesh and ors. passed in W. P. No. 16572/2014 and other judgments. He has also placed reliance on the order dated 8-3-2018 passed by the Division bench in W. A. No. 1166/2017 Malkhan Singh Malviya vs. State of M. P., and order dated 15-11-2021 passed in R. P. No. 493/2020, Panchayat and Rural Development Department vs. Nigar Sultan Khan. 6.
passed in W. P. No. 16572/2014 and other judgments. He has also placed reliance on the order dated 8-3-2018 passed by the Division bench in W. A. No. 1166/2017 Malkhan Singh Malviya vs. State of M. P., and order dated 15-11-2021 passed in R. P. No. 493/2020, Panchayat and Rural Development Department vs. Nigar Sultan Khan. 6. Learned counsel for the respondent No. 2 supported the impugned order and also raised preliminary objections regarding maintainability of the present petition. It is submitted that the principal of natural justice has been followed. The show cause notice was issued to the petitioner and thereafter the impugned order has been passed in light of the Clause 11.2 of the H.R. Manual. 7. No other points have been pressed by the learned counsel for the parties. 8. Learned counsel for the respondent No. 2 raised the preliminary objections regarding maintainability of the petition on the ground that the petitioner was a contractual employee and therefore, the present petition was not maintainable in view of the law laid down by the Apex Court in the case of State Bank of India and ors. vs. S. N. Goyal, reported in (2008) 8 SCC 92 . He referred para No. 7 of the said judgment which reads as under : – “7. The appellant, in its appeal, contended that the trial Court, having found that the enquiry was fair and proper and the finding of guilt was justified, ought not to have set aside the order imposing penalty. The two appeals were heard and disposed of by the Additional District Judge, Jind by a common judgment dated 20-7-2002. The first Appellate Court upheld the decree of the trial Court but in addition held that the respondent was entitled to full back wages with interest thereon at 9% per annum. Consequently, the first appellate Court dismissed the appeal by the appellant and allowed in part the appeal of the respondent.” 9. He also relied on the judgment passed by the co-ordinate bench of this Court in the case of Shivratri Barmiya vs. State of Madhya Pradesh passed in W. P. No. 15502/2016, which has been followed by the Division Bench in the case of Akram Jafir and ors. vs. State of Madhya Pradesh and ors., reported in 2021 SCC online MP 684.
vs. State of Madhya Pradesh and ors., reported in 2021 SCC online MP 684. The Division Bench considered the judgment passed by the Apex Court in the case of S. N. Goyal (supra) and also the judgment passed by the Single Bench in the case of Rajendra Prasad Bakoriya. In the aforesaid judgments, it has been held that where the appointment of the employee is made on contractual basis, in the case of termination of such employee, the remedy of the employee is to challenge show cause notice for wrongful dismissal or for breach of contract. The writ petition cannot be entertained. It is submitted that the petitioner was a contractual employee and his contractual service were governed by the terms of the contract and human resource manual. 10. The respondent No. 2 further stated that upon receiving about the information by the Lokayukt police and registration of FIR No. 36/2020 against the petitioner under offence of section 7 of the Prevention of Corruption Act, 1988 when the Lokayukt police had caught the petitioner red-handed, the respondents issued a show cause notice under Clause 11.2 of the H. R. Manual. On 13-2-2020, the petitioner filed the reply to the said notice which was forwarded through respondent No. 5 to the competent authority. The competent authority duly considered it and rejected the same by passing a reasoned order terminating the services of the petitioner as per the governing clause 11.2 of the H. R. Manual. 11. I have heard learned counsel for the parties at length. 12. To appreciate the rival contentions of the parties, it would be apposite to consider Clause 11.2 of the H.R. Manual, which is reproduced as under : – 13. Upon perusal of the termination order, it is manifest that the said order has been passed after giving show cause notice to the petitioner and considering the reply of the petitioner. The order has been passed keeping in view the clause 11.2 of the H. R. Manual. The petitioner was caught red-handed in the office premises and factum of taking bribe in the recorder was confirmed. It has also been submitted that there is no discrimination of the petitioner from the other employees of the department. The petitioner was caught red-handed in the office premises and the aforesaid action has tarnished the image of National Health Commission.
The petitioner was caught red-handed in the office premises and factum of taking bribe in the recorder was confirmed. It has also been submitted that there is no discrimination of the petitioner from the other employees of the department. The petitioner was caught red-handed in the office premises and the aforesaid action has tarnished the image of National Health Commission. It has also been submitted that there is no concept of negative equality. 14. In support of his submission, learned counsel for the respondent referred the judgment passed by the Apex Court in the case of South Eastern Coalfields Ltd. vs. Prem Kumar Sharma and ors., reported in (2007) 14 SCC 508 and also the judgment passed by the Apex Court in the case of State of Odisha and anr. vs. Anup Kumar Senapati and anr., reported in (2019) 19 SCC 626 , wherein it has been held that the concept of equality as envisaged under Article 14 of the Constitution of India is a positive concept, it cannot be enforced in negative manner. When any authority is shown to commit any illegality or irregularity in favour of an individual or a group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly, wrong judgment passed in favour of one individual does not entitle others to claim similar benefit. 15. The judgment pressed into service by the learned counsel for the petitioner would not render any assistance to his submissions because in the present case, the order of termination is based on the ground of registration of a criminal case at the instance of Lokayukt where the petitioner has been caught red-handed in the office premises and the factum of taking bribe in the recorder was confirmed. 16. In view of the aforesaid discussion, I do not find any illegality in the order of termination. The order impugned has been passed in view of the clause 11.2 of the H. R. Manual after giving opportunity of filing of reply to the petitioner. 17. Accordingly, the present writ petition stands dismissed. 18. No order as to costs.