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2024 DIGILAW 761 (MP)

Kailash Hada v. State of Madhya Pradesh

2024-12-06

VIJAY KUMAR SHUKLA

body2024
ORDER : VIJAY KUMAR SHUKLA, J. The present petition is filed under Article 226 of the Constitution of India challenging the order dated 21.12.2022 passed by respondent no.4, by which the petitioner's service as Gram Rojgar Sahayak has been terminated and the order dated 31.01.2023 dismissing the first appeal by respondent no.3 and also order dated 16.04.2024 whereby the second appeal has been dismissed by the respondent no.2. 2. The facts of the case are that the petitioner was appointed as Gram Rojgar Sahayak on 07.03.2013 on contract basis. A complaint was made in which it was stated that the petitioner was demanding money for releasing the installments of Pradhan Mantri Avas Yojna and the audio CD purported to be a conversation between the petitioner and villagers was also filed alongwith the complaint. The respondent no.5 issued a show cause notice to the petitioner alleging that he demanded money for releasing the installments of money from the beneficiaries and the petitioner was asked to submit the reply. A copy of the show cause notice dated 22.09.2022 has been placed on record as Annexure P/7. In pursuant to the said notice, the petitioner submitted a reply before the respondent no.5 denying the aforesaid allegations. Alongwith his reply, he filed statement of the villagers Bahadur, Kehring and Basantibai stating that there was no such demand. 3. The respondent no.5 after affording opportunity of hearing to the petitioner and considering the allegations in the complaint and audio CD, found that the petitioner in inebriate condition was abusing the beneficiaries and was demanding money and terminated the services of the petitioner as per clause 15 of the the Mahatma Gandhi National Rural Employement Guarantee Act ( MGNREGA ) Scheme, which was also one of the conditions of the appointment order. 4. Being aggrieved by the said order, the petitioner preferred first appeal before the Commissioner, Ujjain Division Ujjain. The Appellate Authority also considered the matter in detail and held that the complaint was proved from the record and the audio CD. The petitioner in inebriate condition was abusing the beneficiaries and was demanding money for disbursement of the installments. The said order was passed after considering the complaint, reply, audio CD and after affording opportunity of personal hearing to the petitioner. 5. The petitioner in inebriate condition was abusing the beneficiaries and was demanding money for disbursement of the installments. The said order was passed after considering the complaint, reply, audio CD and after affording opportunity of personal hearing to the petitioner. 5. Being aggrieved by the said order, another appeal was preferred before the respondent no.2, which has also been dismissed by a speaking and reasoned order. 6. Learned counsel for the petitioner argued that as per the condition no.15 of the instruction/policy of appointments of Gram Rojgar Sahayak and also the condition no.15 of the appointment, the services of the Gram Rojgar Sahayak can only be terminated after holding an inquiry as provided under Rule 14 of MP Civil Service (Classification, Control and Appeal) Rules, 1966 (hereinafter referred as "Rules, 66). 7. Learned counsel for the respondent/state supported the impugned order and submitted that the order of termination of the petitioner has been passed after giving reasonable opportunity to defend as show cause notice was issued and the petitioner filed reply and adduced evidence and thereafter before terminating the services another show cause notice was issued and the petitioner appeared in person and submitted his case. The services of the petitioner have been terminated as per clause 15 of the instruction Annexure P/14 and also as per the condition no.15 of the appointment order. The allegation against the petitioner is serious in nature and amounts to misconduct. 8. After hearing learned counsel for the parties, the question raised for consideration whether the petitioner has been afforded reasonable opportunity before termination or not as envisaged under clause 15 of the instructions Annexure P/14 and appointment order. In order to appreciate the rival submissions, it is apposite to refer clause 15 of the instructions for appointment Annexure P/14 issued by the respondent:- ^^lafonk ij fu;qDr O;fDr ds dnkpkj ;k fdlh vijkf/kd fdz;kdyki es lafyIr fd;s tkus ij fu;qfDr izk/khdkjh ls lquokbZ dk ;qfDr ;qDr volj nsus ds i'pkr~ ,slh lafonk fu;qfDr lekIr dj ldsxkA^^ 9. Admittedly, the petitioner was appointed on contract basis and his services are governed by the instruction issued by the respondent no.2 filed vide Annexure P/14. As per the clause 15 of the said instructions, a person who is appointed on a contract basis, if gets involved in misconduct or criminal case, the appointing authority can terminate his services after giving him reasonable opportunity. 10. As per the clause 15 of the said instructions, a person who is appointed on a contract basis, if gets involved in misconduct or criminal case, the appointing authority can terminate his services after giving him reasonable opportunity. 10. Upon perusal of the impugned order, records and reply of the state, it is clear that the petitioner was served with a show cause notice specifying the allegation against him that a complaint has been received stating that he was demanding money for disbursement of the installment from the beneficiaries and alongwith that said complaint, the petitioner filed a reply and also adduced evidence and was afforded opportunity of personal hearing, thereafter, the order has been passed. 11. The judgment passed by the Division Bench in the case of Mithun Chouhan was passed referring the judgments in the case of Rahul Tripathi Vs Rajeev Gandhi Shiksha Mission, Bhopal and Ors reported in 2001 (3) MPLJ 616 and Jitendra Vs. State of MP and Ors. reported in 2008 (4) MPLJ 670 and also the case of Malkhan Singh Malviya Vs. State of MP. reported in ILR (2018) MP 660 that the order of termination of a Gram Rojgar Sahayak appointed on contract basis cannot be terminated by a stigmatic order without holding an inquiry. The relevant para of the Division Bench order is reproduced as under:- "6. The learned Single Judge relying upon the Division Bench Judgements passed in the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal & Others reported in 2001(3) MPLJ 616 and Jitendra Vs. State of M.P. & Others reported in 2008(4) MPLJ 670 has rightly held that the order of termination is stigmatic in nature as the same entails serious consequences on future prospects of respondent and therefore, the same ought to have been passed after holding an inquiry. This Court is further supported in its view by the judgment passed by Division Bench of this Court in the case of Malkhan Singh Malviya Vs. State of M.P. reported in ILR(2018) MP 660. Under such circumstances, learned Single Judge has rightly allowed the writ petition directing the appellants/State to reinstate the respondent in services with 50% backwages." 12. The judgment relied by the learned counsel for the petitioner in the case of Sumitra (supra) is a case where no inquiry was held before passing the termination of service of Gram Rojgar Sahayak. Under such circumstances, learned Single Judge has rightly allowed the writ petition directing the appellants/State to reinstate the respondent in services with 50% backwages." 12. The judgment relied by the learned counsel for the petitioner in the case of Sumitra (supra) is a case where no inquiry was held before passing the termination of service of Gram Rojgar Sahayak. In the said case, the judgment passed in WP No.24802/2019 has been considered in para no.9, which is reproduced as under :- "9] Heard. Having considered the rival submissions, on perusal of the documents filed on record, as also the order passed by this Court in W.P. No.24802/2019, this Court finds that so far as the stigmatic order without holding any inquiry is concerned, this Court has taken note of the same and has held as under:- “Upon perusal of the impugned order of termination, it is axiomatic that the impugned order has been issued on the allegation of gross negligence in discharging of duties in verification work. The petitioner was a contractual employee and his services has been terminated by stigmatic order without holding any inquiry in the matter. The Apex Court in the case of Jitendra V/s. State of M.P. & Others 2008 (4) MPLJ 670 and also the judgment passed by a coordinate bench of this Court in the case of Rahul Tripathi vs. Rajeev Gandhi Shiksha Mission, Bhopal [ 2001 (3) M.P.L.J. 616 ] wherein it has been held that if the order of termination is stigmatic, it cannot be regarded as termination simpliciter and, therefore, the same cannot be passed without holding inquiry. He has also placed reliance on the order dated 10.05.2019 passed by the Division Bench in Writ Appeal No. 402/2019 (The Mission Director, National Health Mission, Bhopal vs. Mukesh Yadav and Ors.). He also referred the judgment passed by the D.B. in the case of Mission Director, RCH/RCH/NRHM vs. Ranjit Jain & Anr. [ 2011(4) M.P.H.T. 266 ]. He also cited the orders passed by coordinate Bench dated 13.03.2019 passed in W.P. No.8682/2018 (Kishan Singh Dudwe vs. State of MP & Ors.) and also the order dated 04.07.2022 passed in WP No.19867/2021 (Madhav Awasya vs. State of MP & Ors) and order dated 25.04.2022 passed in WP No.23267/2019 (Omprakash Gurjar vs. Panchayat and Rural Development & Ors.). He also cited the orders passed by coordinate Bench dated 13.03.2019 passed in W.P. No.8682/2018 (Kishan Singh Dudwe vs. State of MP & Ors.) and also the order dated 04.07.2022 passed in WP No.19867/2021 (Madhav Awasya vs. State of MP & Ors) and order dated 25.04.2022 passed in WP No.23267/2019 (Omprakash Gurjar vs. Panchayat and Rural Development & Ors.). In the aforesaid cases, it has been held that in the cases of termination of service of contractual employee, the order of termination which is stigmatic in nature cannot be regarded as a termination simpliciter and, therefore, the services cannot be terminated without conducting regular inquiry. In view of the aforesaid itself, it is settled law that the services of contract employee and Gram Rojgar Sahayak cannot be terminated by stigmatic order without holding any inquiry. In view of the same, the petition is allowed and the petitioner is directed to be reinstated in service with 50% back wages. The liberty is granted to the respondents to take action against the petitioner, if desired so in accordance with the law.” 13. After considering the aforesaid judgments, the co-ordinate bench held in para no.10 as under:- "10] Taking note of the fact that the impugned order is also stigmatic in nature, in view of the aforesaid decision, as also the fact that the petitioner has reasonably explained her absence from the work due to nature of her disease, this Court is of the considered opinion that the respondents ought to have taken up at least some inquiry before passing the impugned order of termination." 14. The word "Regular Inquiry" used in the case of Sumitra (supra) by the Division Bench in the case of WA No.1443/2024 and ''reasonable opportunity'' in clause 15 of appointment rules/instructions Annexure P/14 cannot be construed to be 'departmental inquiry' under Rule 14 of the Rules, 66. The word "Regular Inquiry" used in the case of Sumitra (supra) by the Division Bench in the case of WA No.1443/2024 and ''reasonable opportunity'' in clause 15 of appointment rules/instructions Annexure P/14 cannot be construed to be 'departmental inquiry' under Rule 14 of the Rules, 66. The word government servant is defined under Rule 2(f) of the Rules, 66 which reads as under:- "(f) "Government servant" means a person who- (i) is a member of a Service or holds a civil post under the State, and includes any such person on foreign service or whose services are temporarily placed at the disposal of the Union Government, or any other State Government or a local or other authority; (ii) is a member of a service or holds a civil post under the Government of India or any other State Government and whose services are temporarily placed at the disposal of the State Government; (iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the State Government." 15. From the aforesaid provision, it is clear that the contractual employee is not covered by the Rules, 1966. 16. In view of the aforesaid, the submission of learned counsel for the petitioner that before terminating the services of contractual employee on the post of Gram Rojgar Sahayak a departmental inquiry under Rule 14 of MP (Classification, Control and Appeal) Rules, 1966 has to be conducted can not be accepted. The aforesaid rules do not apply to the post of Gram Rojgar Sahayak appointed on contract basis and his services are governed by the instructions of Annexure P/14 issued by respondent no.2. The Rule 14 of Rules, 66 applies to a government servant governed by the Rules, 66. 17. The other judgments referred by the learned counsel for the petitioner would not render any assistance to the facts of the present case. Those were the cases where the services of Gram Rojgar Sahayak was terminated without holding any inquiry and giving opportunity of hearing. 18. Thus, in the facts of the present case and in the light of the above interpretation, it is held that the order of termination of the petitioner was passed after giving him reasonable opportunity as required under Clause 15 of the Rules/instructions of appointment Annexure P/14. 19. 18. Thus, in the facts of the present case and in the light of the above interpretation, it is held that the order of termination of the petitioner was passed after giving him reasonable opportunity as required under Clause 15 of the Rules/instructions of appointment Annexure P/14. 19. In view of the aforesaid, this Court does not find any error in the impugned orders terminating the services of the petitioner and dismissing the appeals. 20. Accordingly, the present petition stands dismissed.