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2024 DIGILAW 386 (JHR)

Ramakant Roy v. State of Jharkhand

2024-04-10

RAJESH SHANKAR

body2024
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 19.07.2021 (Annexure-11 to the writ petition) passed by the respondent No. 4 whereby the recommendation made in the meeting of the District Health Committee, Garhwa held under the Chairmanship of the respondent No. 3 on 17.06.2017 regarding termination of the petitioner’s contractual service, has been kept intact and his application with respect to the claim for payment of arrears of salary/honorarium as well as to reinstate him in his original place of posting, has been rejected. Further prayer has been made for issuance of direction upon the respondents to reinstate the petitioner in service as Block Programme Manager w.e.f. 20.11.2017 with full back wages and all consequential benefits. The petitioner has also prayed for payment of due honorarium for the period from 01.08.2015 to 12.04.2016. 2. The petitioner, who appears before this Court in person, submits that he was appointed on 30.04.2010 as Block Programme Manager under the National Rural Health Mission (NRHM). In the light of the order of the respondent No. 4 issued vide memo No. 1550 dated 30.07.2015, the In-Charge Medical Officer, Community Health Centre, Garhrwa-the respondent No. 5 issued letter No. 438 dated 31.07.2015 directing the petitioner not to do any work and not to mark his attendance in the attendance register/biometric system. However, the said order was subsequently revoked vide order as contained in memo No. 858 dated 13.04.2016 issued by the respondent No. 4 and the petitioner was directed to work on his post in the Community Health Centre, Garhwa as well as to work as Hospital Manager of Sadar Hospital, Garhwa in addition to his work. The petitioner was however not paid any honorarium/salary for the period from 01.08.2015 to 12.04.2016. 3. It is further submitted that a meeting of District Task Force was convened on 17.05.2017 under the Chairmanship of the respondent No. 3 and in the said meeting, the respondent No. 3 directed the respondent No. 4 to issue show cause notice to the petitioner asking explanation for non-updating of micro plan with respect to Mission Indradhanush (MI) and on non-submission of clear reply, to terminate him from his post. However, no such show cause notice was ever issued to him. 4. However, no such show cause notice was ever issued to him. 4. Subsequently, in the meeting of the District Health Committee, Garhwa held on 17.06.2017 under the Chairmanship of the respondent No. 3, it was decided vide Agenda No. 7 to send recommendation to the respondent No. 2 for the petitioner’s removal from contractual engagement. Thereafter, the recommendation for termination of the petitioner’s contractual service was sent for approval to the respondent No. 2 vide letter No. 2088 dated 19.08.2017 issued by the respondent No. 4. 5. Thereafter, the Administrative Officer, Jharkhand Rural Health Mission Committee, Namkum, Ranchi issued show cause notice to the petitioner vide letter No. 2723 dated 05.10.2017 which was replied by him on 10.10.2017, however, the respondent No. 2 approved the recommendation for terminating the petitioner’s contractual service vide Letter No. 9/R.C.H. 245/2014-3013 (R.C.H.) dated 07.11.2017 issued by the Administrative Officer, JRHMC, Department of Health, Medical Education and Family Welfare, Ranchi as well as an option was also given to transfer him to other Division so as to wait and watch his activity for 6 months. The respondent No. 4 however chose the option to terminate the petitioner’s contractual service on the post of Block Programme Manager, CHC, Sadar Garhwa w.e.f. 20.11.2017 vide order as contained in memo No. 2819 dated 16.11.2017. 6. The petitioner thereafter filed a writ petition being W.P. (S) No. 3973 of 2015 before this Court which was disposed of vide order dated 13.01.2021 quashing and setting aside the order as contained in memo No. 2819 dated 16.11.2017 and the matter was remanded to the respondent No. 4 to pass a fresh order after taking into consideration the reply dated 10.10.2017 submitted by the petitioner against the show cause notice dated 05.10.2017. The petitioner was also given liberty to file a detailed representation before the respondent No. 4 raising his grievance with regard to payment of honorarium. 7. Pursuant to the order dated 13.01.2021, the petitioner preferred representation dated 06.02.2021 before the respondent No. 4, who sought instruction in this regard from the respondent No. 2 vide letter No. 713 dated 06.07.2021. However, the respondent No. 4 passed the impugned order dated 19.07.2021 without any instruction given by the respondent No. 2 rejecting the petitioner’s request for reinstating him in service as well as for payment of arrears of salary by keeping the recommendation dated 17.06.2017 intact. 8. However, the respondent No. 4 passed the impugned order dated 19.07.2021 without any instruction given by the respondent No. 2 rejecting the petitioner’s request for reinstating him in service as well as for payment of arrears of salary by keeping the recommendation dated 17.06.2017 intact. 8. It is also submitted that the respondent No. 4 was not the competent authority to remove the petitioner from service. Hence, the decision taken by the said respondent without approval of the competent authority i.e. the respondent No. 2, cannot be sustained in law and the same is liable to be quashed. 9. Per-contra, learned counsel for the respondents submits that the respondent No. 4 had issued letter No. 428 dated 16.02.2017 to the petitioner calling upon him to submit explanation as to why he had neither supplied medicines and sent information regarding programme of National Deworming Day (N.D.D.) nor had extended training of the same in the three schools, namely, Kasturba School, Hansker, Little Flower School, Hansker and Jawahar Navodaya Vidyalaya, Annraj, Nawadih. The petitioner submitted his explanation on 17.02.2017 which was found unsatisfactory. The respondent No. 4 again issued letter No. 109 dated 08.04.2017 to the petitioner calling upon him to show cause as to why he had not submitted correct Micro Plan of JE Vaccination Programme scheduled to be held on 10.04.2017 in the District R.C.H. Office, Garhwa within stipulated time. The petitioner again submitted his explanation without proper channel which was found not satisfactory. 10. It is further submitted that some other complaints regarding his indiscipline and indecent acts were also received in the department. Hence, the respondent No. 4 vide memo No. 1021 dated 25.04.2017 again issued a letter to the petitioner calling upon him to submit his pointwise explanation (total eight points) with respect to all the allegations levelled against him. The petitioner submitted his explanation on 28.04.2017 through proper channel which was again not found satisfactory. Thereafter, the respondent No. 4 issued another letter as contained in memo No. 1136 dated 13.05.2017 calling upon the petitioner to submit his explanation pointwise on the same allegations mentioned in the letter dated 25.04.2017, however, he did not submit any explanation within the stipulated period. Hence, a reminder was issued to him by the respondent No. 4 vide memo No. 1255 dated 26.05.2017. Hence, a reminder was issued to him by the respondent No. 4 vide memo No. 1255 dated 26.05.2017. The petitioner then submitted reply to the said letter on 27.05.2017, however, the same was not a pointwise explanation as directed vide letter dated 13.05.2017. In the meantime, a meeting of the Governing Body of District Health Society was held on 17.06.2017 under the Chairmanship of the respondent No. 3 in which all show cause notices/explanations of the petitioner were examined. However, the same were found unsatisfactory as well as his conduct was found against the norms prescribed for the government servants. Hence, the Governing Body of District Health Society vide the proposal mentioned at Para-7 of the minutes of its meeting as contained in memo No. 51 dated 19.06.2017, recommended the respondent No. 2 for removal of the petitioner from contractual service of the government. Thereafter, the Administrative Officer of the Jharkhand Rural Health Mission Committee, Namkum, Ranchi issued show cause notice to the petitioner as to why his service be not terminated. The petitioner submitted his explanation to the said Administrative Officer on 10.10.2017, who ultimately sent letter dated 07.11.2017 to the respondent No. 4 informing that the recommendation made by the Governing Body of District Health Committee on 17.06.2017 regarding termination of the petitioner’s contract was confirmed after obtaining approval of the respondent No. 2. Thereafter, the respondent No. 4 issued the order of termination relating to the petitioner’s contractual service on the post of Block Programme Officer, CHC, Sadar Garhwa w.e.f. 20.11.2017 vide memo No. 2819 dated 16.11.2017. 11. It is also submitted that pursuant to the order passed in W.P. (S) No. 3973 of 2015, the petitioner filed representation on 06.02.2021. Thereafter, vide letter dated 03.03.2021, a copy of the reply submitted by the petitioner against the second show cause notice was asked to be sent which was made available by the petitioner through e-mail and after considering the same, his claim was rejected by the respondent No. 4 vide the impugned order dated 19.07.2021. 12. Heard the petitioner and learned counsel for the respondents as well as perused the relevant materials available on record. 12. Heard the petitioner and learned counsel for the respondents as well as perused the relevant materials available on record. Thrust of the argument of the petitioner is that the impugned order dated 19.07.2021 is a non-speaking one and the same has been passed in a mechanical manner without considering the reply dated 10.10.2017 submitted by him to the second show cause notice dated 05.10.2017 and hence the same is liable to be set aside on the ground of violation of the principles of natural justice. 13. Earlier the petitioner had preferred a writ petition being W.P. (S) No. 3973 of 2015 for quashing the order as contained in memo No. 2819 dated 16.11.2017 whereby the respondent No. 4 had terminated his contract and was removed from service w.e.f. 20.11.2017 as Block Programme Manager at Community Health Centre, Sadar-Garhwa. A co-ordinate Bench of this Court disposed of the said writ petition vide order dated 13.01.2021 with following direction and observation: “6. Having heard learned counsel for the parties and after going through the impugned order it clearly transpires that it is completely non-speaking and non-reasoned order and the respondent no. 4 has failed to consider any of the grounds taken by the petitioner in his show-cause reply dated 10.10.2017. 7. Consequently, the impugned order as contained in memo no. 2819 dated 16.11.2017 (Annexure-18) issued by respondent no. 4, is hereby, quashed and set aside and the matter is remitted back to the respondent no. 4; to pass a fresh order after taking into consideration the reply dated 10.10.2017 submitted by the petitioner to the second show-cause notice dated 5.10.2017. 8. It is made clear that the respondent no. 4 shall pass the fresh order within a period of four months from the date of receipt/production of a copy of this order and he would be at liberty to notice to the petitioner in arriving to the conclusion in passing the final order. 9. The petitioner is also at liberty to file a detailed representation before the respondent no. 4 making his grievance with regard to payment of honorarium which shall be verified from the relevant records of the case and if the petitioner will be found entitled; the same shall be paid to him within the aforesaid period.” 14. 9. The petitioner is also at liberty to file a detailed representation before the respondent no. 4 making his grievance with regard to payment of honorarium which shall be verified from the relevant records of the case and if the petitioner will be found entitled; the same shall be paid to him within the aforesaid period.” 14. On perusal of the impugned order dated 19.07.2021 passed by the respondent No. 4 in pursuance of the order dated 13.01.2021 passed in W.P. (S) No. 3973 of 2015, it would be evident that the said respondent, while taking decision on the petitioner’s representation dated 06.02.2021, has put much emphasis on the language used in the reply to the show cause notice submitted by him on 10.10.2017 and has not considered the merit of the petitioner’s response. It has been observed by the respondent No. 4 in the impugned order dated 19.07.2021 that the petitioner has raised question on the work of his higher officials, which is an act of disobedience. However, none of the explanations submitted by the petitioner has been considered by the respondent No. 4. 15. It is a well settled law that an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences, is duty-bound to act fairly, reasonably and impartially in consonance with the basic rules of natural justice including that the material sought to be used against the person concerned must be disclosed to him and he should be given an opportunity to explain his position. 16. In the case of Asha Sharma Vs. Chandigarh Administration, (2011) 10 SCC 86 , the Hon'ble Supreme Court has held as under: “14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.” 17. This Court of the view that since a co-ordinate Bench of this Court had remanded the matter to the respondent No. 4 with a direction to consider the petitioner’s reply dated 10.10.2017, he was duty bound to consider the merit of the petitioner’s response and was not supposed to go into the language used therein. Since certain allegations were levelled against the petitioner, he had the right to explain that he was not at fault and while doing so, if he had raised any question on the work of his higher officials, the respondent No. 4 should have examined the said allegations fairly and ought to have decided the matter by applying his independent mind which was the purpose of serving the show cause notice to the delinquent employee i.e. the petitioner, in absence of which the entire purpose of serving the show cause notice got frustrated. Though in the reply submitted by the petitioner, the language was not happily worded at some places, however, it cannot be said to be a case of gross insubordination. Thus, the impugned order dated 19.07.2021 has been passed by the respondent No. 4 in a mechanical manner with prejudged opinion without duly considering the reply to the show cause notice submitted by the petitioner. Hence, the said order cannot be sustained in law and is liable to be quashed on the ground of violation of the principles of natural justice. 18. Hence, the said order cannot be sustained in law and is liable to be quashed on the ground of violation of the principles of natural justice. 18. That apart, earlier on the recommendation of the Governing Body of the District Health Committee, Garhwa regarding termination of the petitioner’s contractual service, the respondent No. 4 had sought approval from the respondent No. 2 and only after getting the said approval, the impugned order of termination was passed by the respondent No. 4. After remand of the matter to the respondent No. 4 vide order dated 13.01.2021 passed in W.P. (S) No. 3973 of 2015, the respondent No. 4 though again sought instructions from the respondent No. 2 vide letter No. 713 dated 06.07.2021, however, without getting any such instruction from the respondent No. 2, the respondent No. 4 passed the impugned order of termination. Thus, I find substance in the argument of the petitioner that due procedure of law has also not been followed while passing the said order. 19. In view of the aforesaid discussions, the impugned order dated 19.07.2021 passed by the respondent No. 4 is hereby quashed. It is evident from the record that the authorities, particularly, the respondent No. 4 somehow wanted to punish the petitioner. As such, remanding the matter for deciding it afresh will be an empty formality as the petitioner will merely knock his head against the impenetrable wall of prejudged opinion. 20. Thus, the respondent Nos. 2 & 3 are directed to forthwith reinstate the petitioner in service and to allow him to re-join at the place from where he was terminated. However, the petitioner is not entitled to get any back wages on the principle of ‘No Work, No Pay’. 21. So far as the petitioner’s claim for payment of honorarium for the period from 01.08.2015 to 12.04.2016 is concerned, it has been asserted by him that though he was not allowed to mark his attendance during that period, he used to do the work assigned to him in the office. The said factual claim has not been disputed by the respondents in their counter affidavit/supplementary counter affidavit. As such, the respondent Nos. 3 & 4 are directed to pay the honorarium for the said period to the petitioner within four weeks from the date of receipt/production of a copy of this order. 22. The said factual claim has not been disputed by the respondents in their counter affidavit/supplementary counter affidavit. As such, the respondent Nos. 3 & 4 are directed to pay the honorarium for the said period to the petitioner within four weeks from the date of receipt/production of a copy of this order. 22. The present writ petition is, accordingly, disposed of with the aforesaid direction and observation.