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2023 DIGILAW 591 (MP)

Shashikant Tiwari v. State of M. P.

2023-06-12

SANJAY DWIVEDI

body2023
ORDER 1. The petitioner has filed this petition under Article 226 of the Constitution of India questioning the legality, validity and propriety of order dated 6.2.2023 (Annexure-P/3) whereby his services have been terminated by respondent No.3 on the ground that an offence vide Crime No.204/2022 under sections 7(A), 13(1)B, 13(2) of the Prevention of Corruption Act, 1988 is registered against the petitioner. 2. Learned counsel for the petitioner is challenging the impugned order mainly on the ground that though the petitioner is a contractual employee, but merely on the basis of registration of an offence, his services cannot be terminated. He submits that unless the petitioner is held guilty, the action taken by the respondents terminating his services is not proper. He has placed reliance upon a judgment of Gujrat High Court passed on 8.2.2022 in R/Special Civil Application No.22681 of 2019 (Minakshiben Laxmanbhai Paraliya Vs. State of Gujrat) in which the Gujrat High Court has observed that the order of termination cannot be made only on the basis of registration of an offence and since that is referred in the impugned order, therefore, it can be considered to be stigmatic order in view of the several judgments of the Supreme Court as well as of the High Courts that before passing any stigmatic order, an enquiry is necessary and as such, the order impugned deserves to be set aside. 3. However, I am not convinced with the submission made by the counsel for the petitioner for the reason that the order of appointment dated 10.4.2017 (Annexure-P/1) contained terms and conditions of appointment in which condition No.8 is important, which reads as under: ^^8- fu;qDr lafonk deZpkjh dk pfj= lR;kiu 'kkldh; lsodksa dks ykxw fu;eksa ;k vuqns'kksa ds vk/kkj ij fd;k tkosxkA pfj= rFkk 'kS{kf.kd ;ksX;rk ,oa Áek.ki=ksa ds vlR; gksus ds laca/k esa fdlh Áfrdwy fu"d"kZ dh n'kk esa fu;qfDr Ákfèkdkjh }kjk lafonk fu;qfDr] fcuk dksbZ dkj.k crk;s rRdky jn~n dj nh tkosxhA fu;qfDr lafonk deZpkjh dks dnkpkj ;k fdlh vkijkf/kd fØ;kdyki esa layXu gksus ij fu;qfDr Ákf/kdkjh ,slh lafonk fu;qfDr lekIr dj ldsaxsA** (Emphasis supplied) 4. The aforesaid condition is very specific and if such situation arises, the right to terminate the contract is vested with the employer and as per the impugned order, the authority has referred the details of the offence registered and also the reasons for terminating the services of the petitioner. 5. The aforesaid condition is very specific and if such situation arises, the right to terminate the contract is vested with the employer and as per the impugned order, the authority has referred the details of the offence registered and also the reasons for terminating the services of the petitioner. 5. Had it been a case that the reason of termination of contract is foreign to the terms and conditions of appointment or the facts not known to other or is also not known to the employee casting stigma then only the order can be considered to be stigmatic order and the situation would have been different. In the case in hand, the situation is altogether different. It is not a case that the petitioner’s contract appointment is being terminated on a wrong premise. Although, it is a case in which the involvement of the petitioner in the alleged offence which otherwise comes within the purview of moral turpitude then termination of contract was the consequence of registration of offence as per terms and conditions of appointment. Thus, in my opinion, since the reason assigned for termination of contract was factually correct and not denied by the petitioner, therefore, the order impugned cannot be said to be punitive and in such circumstances, regular enquiry is not necessary. 6. During the course of arguments and even in the averments made in the petition, nowhere it is stated that the alleged offence was not registered against the petitioner and therefore, if enquiry is conducted the petitioner could have changed the situation. Undisputably, the order impugned does not contain any incorrect fact, in my opinion, granting an opportunity or conducting an enquiry would be nothing but a futile exercise. Every order containing adverse fact does not consider to be stigmatic or punitive. The Supreme Court in a case reported in (2002) 1 SCC 520 (Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another) relying upon a case of Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 has observed as under:- “10. Every order containing adverse fact does not consider to be stigmatic or punitive. The Supreme Court in a case reported in (2002) 1 SCC 520 (Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another) relying upon a case of Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 has observed as under:- “10. Since ‘Dhingra is the Magna Carta of the Indian civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple, practical formula applicable to termination of probation of freshers and of the services of temporary employees”, we have thought it best to refer to the facts of Dhindra case to understand what exactly was meant when the Court said: (AIR p.49, para 82) “It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.”” 7. The Supreme Court in case of Pavanendra Narayan Verma (supra) has further observed as under:- “21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irresp4ective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.” 8. Thus, in view of the existing factual position in the case in hand, since the termination is based upon registration of offence which was one of the conditions of the order of appointment, the right of the employer has been exercised by them and, therefore, the impugned order is not stigmatic. 9. The petition being without any substance, is hereby dismissed.