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Madhya Pradesh High Court · body

2025 DIGILAW 106 (MP)

Kavita Sahu v. State Of M. P.

2025-02-11

DWARKA DHISH BANSAL

body2025
ORDER : DWARKA DHISH BANSAL, J. 1. This writ petition has been preferred by the petitioner for quashing the order of termination dated 17.09.2024 (Annexure P/1) issued by respondent 2-Chief Medical and Health Officer, District Chhindwara. 2. Learned counsel for the petitioner submits that initially the petitioner was appointed on the post of Asha Sahayogi vide order dated 05.03.2014 (Annexure P-4) issued by respondent 3 and thereafter, the petitioner was given charge of Asha Paryavekshak (Supervisor) and she was performing her duties on the post without any complaint. He submits that suddenly, the petitioner was served with a show cause notice dated 14.08.2024 (Annexure P-2) proposing disciplinary action against her with the further direction to submit reply within a period of 3 days. Immediately, thereafter the petitioner submitted reply on 15.08.2024 (Annexure P-3), but thereafter without giving any opportunity of hearing, the respondent 2 has, vide order dated 17.09.2024 (Annexure P-1), terminated services of the petitioner. Taking this Court to the guidelines/order dated 05.06.2018 (Annexure P-7) of the State Government, learned counsel for the petitioner submits that services of the petitioner could not have been terminated without giving due opportunity of hearing. With these submissions, he submits that in absence of due opportunity of hearing, impugned order of termination of services of the petitioner, is not sustainable and is liable to be quashed. In support of his submissions, learned counsel for the petitioner placed reliance on the decisions in the case of Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another, (1999) 2 SCC 21 and Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal, 2001 (3) MPLJ 616 . 3. Per contra, learned counsel for the respondents/State supports the impugned order dated 17.09.2024 (Annexure P-1) and prays for dismissal of writ petition with the further submissions that before passing the order of termination, petitioner was given due opportunity of hearing by issuance of show cause notice dated 14.08.2024 (Annexure P-2) and that the petitioner is having alternative remedy of appeal. Taking this Court to the guidelines (Annexure R-2) issued in respect of appointment and termination of Asha Paryavekshak, learned counsel for the respondents submits that the petitioner has rightly been removed from the post after giving due opportunity of hearing as provided in the guidelines (Annexure R-2). Relevant extract of which, is quoted as under :- 4. Heard learned counsel for the parties and perused the record. Relevant extract of which, is quoted as under :- 4. Heard learned counsel for the parties and perused the record. 5. Undisputedly, the petitioner was appointed on the post of Asha Sahayogi (Karyakarta) vide order dated 05.03.2014 (Annexure P-4) and on the date of passing of order of termination dated 17.09.2024, she was holding the post of Asha Paryavekshak. In the order, it is mentioned that the petitioner did not perform her duties required under the policy. It is apparent from the order that in the village, death of Smt. Seema Marskole took place, which has been made main basis for termination of the petitioner including other charges of negligence and dereliction of duties. 6. In support of the contentions made in writ petition, the petitioner has filed a copy of panchnama signed by deceased (who was alive on the date of panchnama), her husband Shri Ram Sharan Marskole as well as her father/mother-in-law and other villagers, which shows that the petitioner was performing her duties diligently and in return, veracity of this panchnama has not been disputed by the respondents/State. By another panchnama (Annexure P-6), the villagers including Sarpanch and Secretary of the Gram Panchayat, Gwarimal, have also shown full satisfaction about good working of the petitioner in the village and this has also not been disputed by the respondents/State in the return. 7. Apparently, the petitioner was served with the show cause notice on 14.08.2024 (Annexure P-2), who filed reply on the next date i.e. 15.08.2024 and thereafter, without making further enquiry as provided in the order/circular dated 05.06.2018 (Annexure P-7) containing guidelines regarding termination of contractual employees, the respondent 2 has passed impugned order dated 17.09.2024 (Annexure P- 1). Relevant extract of the order/circular dtd.05.06.2018 (Annexure P-7) is quoted as under: 8. It is pertinent to mention here that order/circular dated 05.06.2018 (Annexure P-7) containing guidelines regarding termination of contractual employees has already been replaced by order/circular no. C-5-2/2018/1/3, Bhopal dtd. 22.07.2023. Relevant extract of which, is as under : 9. In the case of Radhey Shyam Gupta (supra) Hon’ble Supreme Court has held as under :- “35. It is pertinent to mention here that order/circular dated 05.06.2018 (Annexure P-7) containing guidelines regarding termination of contractual employees has already been replaced by order/circular no. C-5-2/2018/1/3, Bhopal dtd. 22.07.2023. Relevant extract of which, is as under : 9. In the case of Radhey Shyam Gupta (supra) Hon’ble Supreme Court has held as under :- “35. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases.” 10. In the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal, 2001 (3) MPLJ 616 a coordinate Bench of this Court had relied upon the aforesaid judgment of Hon’ble Supreme Court in the case of Radhey Shyam Gupta (supra) as well as in the case of Chandra Prakash Shahi vs. State of U.P. and others, (2000) 5 SCC 152 and held that if the order of termination passed against the petitioner is stigmatic, then it cannot be regarded as a termination simpliciter and in such circumstances, before passing such order of termination, the delinquent employee deserves to be given due opportunity of hearing. 11. In the present case, show cause notice was given in respect of limited charge(s) but the order of termination dtd.17.09.2024 (Annexure P/1) shows that the petitioner has been terminated for the charges in addition to the charges mentioned in the show cause notice. 11. In the present case, show cause notice was given in respect of limited charge(s) but the order of termination dtd.17.09.2024 (Annexure P/1) shows that the petitioner has been terminated for the charges in addition to the charges mentioned in the show cause notice. From the order dtd.17.09.2024, it is clear that after issuance of show cause notice, a team was constituted for enquiry in respect of death/matra-mratyu, who behind the back of petitioner, made enquiry and submitted its report, which has been made basis for termination of the petitioner. Report dtd.10.09.2024 annexed with Note Sheet dtd.13.09.2024 (Annexure R/1) depicts that while making enquiry into the charges, the petitioner was not called for explaining the charges and even she was not given opportunity to explain those additional charges on the basis of which, the petitioner has been terminated. 12. With a view to understand better, relevant extracts of show cause notice (Annexure P/2) and that of order (Annexure P/1) , are quoted as under respectively :- Relevant extract of show cause notice (Annexure P/2): Relevant extract of termination order (Annexure P/1): 13. In the light of aforesaid decision in the case of Radhey Shyam Gupta (supra) as well as in the light of clauses 9.2, 9.3 and 9.7 of the guidelines issued on 22.07.2023 by State Govt., if the officer/team was of the opinion that charges leveled in the complaint against the petitioner, were serious in nature, then enquiry was to be ordered and thereafter the petitioner ought to have been given due opportunity of hearing. In the present case, neither the order of termination (Annexure P/1) nor the enquiry report (Annexure R/1), mentions that after filing of reply by the petitioner, she was given further opportunity of hearing. 14. In view of the aforesaid and especially in view of the provisions regarding opportunity of hearing contained in circular dated 05.06.2018 as well as in the policy/guidelines (Annexure R-2), it is clear that except issuance of show cause notice, the petitioner was not given any opportunity of hearing in any enquiry before passing the order of termination, which was mandatory in view of the principles of natural justice. Accordingly, the order of termination passed against the petitioner being stigmatic, cannot be regarded as a termination simpliciter. 15. Accordingly, the order of termination passed against the petitioner being stigmatic, cannot be regarded as a termination simpliciter. 15. In the present case, the petitioner has, without availing alternative remedy of appeal, directly approached to this Court, but as has been argued and also found by this Court, the respondents before passing order of termination, have not followed the principles of natural justice, therefore, the availability of an alternative remedy, does not bar the petitioner to seek justice when fundamental fairness is violated. 16. As a result thereof, by setting aside the impugned order dated 17.09.2024 (Annexure P-1), the writ petition stands allowed and disposed off. 17. Needless to emphasize, the petitioner shall reap all the consequent benefits including her reinstatement in service forthwith. 18. Misc. application(s), pending if any, shall stand closed.