Anuj Shuckla v. Bihar Industrial Area Development Authority (BIADA)
2025-02-10
ARVIND SINGH CHANDEL
body2025
DigiLaw.ai
Arvind Singh Chandel, J.—This petition has been preferred by the petitioner seeking the following reliefs:— “(i) For quashing the Order/Memo No 6778/Estt dated 20.10.2023 issued by Executive Director (Operations), BIADA (Annexure P/13), Patna whereby the petitioner has been dismissed from service by the Bihar Industrial Area Development Authority (hereinafter referred to as BIADA) on 20.10.2023, in most arbitrary manner without compliance of the principles of natural justice and in complete violation of Articles 14, 16 and 21 of the Constitution of India, equity and against all the canons of justice. (ii) For quashing the Order dated 04.09.2024 passed in Appeal Case No 3 of 2023 communicated to the petitioner vide Memo No 4603 dated 09.09.2024 (Annexure P/16) by the Respondent No 2, whereby and where under the Appeal filed by the Petitioner has been dismissed in a mechanical, arbitrary, pick and choose manner, whereas the similarly situated coterminus contractual employees have been reinstated considering the fact that the termination of the Petitioner is termination stigmatic and without compliance of the principles of natural justice, service jurisprudence and in teeth of the service procedure laid down by the decision of the Cabinet contained in Memo No 12534 dated 17.09.2018 (High Level Committee) illegal, arbitrary decision has been taken, which has no legs to stand in the eyes of law. (iii) For the issuance of the direction in the nature of mandamus allowing Restituo in integru to his post with all consequential benefits. (iv) For any other relief or reliefs for which the petitioner be found entitled in the eye of law.” 2. Facts of the case are that the petitioner was appointed on the post of Executive Engineer vide letter dated 29.10.2009 (Annexure P/1) on contractual basis and an agreement in terms of Regulation 1.2.1 in Part II of the Bihar Industrial Area Development Authority (Financial, Service and Technical) Regulations), 2007 (for brevity, 2007 Regulations) was also entered into on 02.11.2009. Subsequently, his services were extended time to time. Lastly, his services were extended in January, 2022. After completion of continuous service for 14 years, on the basis of certain allegations, show cause notice (Annexure P/5) dated 16.09.2023 was issued to the petitioner which has been duly replied by the petitioner vide Annexure P/5A dated 22.09.2023.
Subsequently, his services were extended time to time. Lastly, his services were extended in January, 2022. After completion of continuous service for 14 years, on the basis of certain allegations, show cause notice (Annexure P/5) dated 16.09.2023 was issued to the petitioner which has been duly replied by the petitioner vide Annexure P/5A dated 22.09.2023. Thereafter, invoking the provisions, as contained in Clause 1.5 (b) (iv) of 2007 Regulations, vide order dated 20.10.2023 (Annexure P/13), services of the petitioner have been terminated which has been assailed by him before the Appellate Authority. The Appellate Authority also rejected the appeal preferred by the petitioner vide its order dated 04.09.2024 (Annexure P/16). Hence, this petition has been preferred by the petitioner. 3. Learned counsel for the petitioner would submit that though the appointment of the petitioner was contractual but on the basis of recommendation by the High Level Committee, the Government of Bihar issued Memo No 12534 dated 17.09.2018. The decision of the State Government contained in Memo No 12534 dated 17.09.2018 manifestly mentions about Bihar Industrial Area Development Authority (for brevity, BIADA) under the aegis of the Department of Industry in Table No 19 mentioned in Apendix A and BIADA was directed to implement Clauses 1, 3, 4, 5, 7 and 10 of the recommendation of the High Level Committee. Clause 1 of the Recommendation of High Level Committee states that the appointment and the services of the contractual workers shall be considered to be permanent and shall come to an end either on the day such posts/positions are in force or till such posts are made permanent in nature. Therefore, the petitioner is entitled to continue in his services till attaining the age of 60 years. Learned counsel further submits that though the petitioner was contractual employee but order of termination is a stigmatic order and, therefore, a full fledged enquiry, according to the Rules, was required but the Department has not done so and the Authority mechanically passed the impugned order of termination without considering the reply of show cause submitted by the petitioner. The Appellate Authority also did not consider the grounds of appeal raised by him and rejected the appeal in most arbitrary manner. Therefore, both the impugned orders are liable to be set aside. 4.
The Appellate Authority also did not consider the grounds of appeal raised by him and rejected the appeal in most arbitrary manner. Therefore, both the impugned orders are liable to be set aside. 4. In support of his contention, learned counsel for the petitioner has placed reliance on the decision in the case of Dr Vijaykumaran CPV vs. Central University of Kerala & Others (2020) 12 Supreme Court Cases 426 and Roop Singh Negi vs. Punjab National Bank and Others (2009) 2 Supreme Court Cases 570. 5. Learned senior counsel for the respondents opposes the argument raised by the learned counsel for the petitioner and submits that the reply of show cause submitted by the petitioner was duly considered by the respondent-authority and upon careful scrutiny of the facts and reply submitted by the petitioner, the order of termination was passed. Relying on the judgment passed by a Division Bench of this Court in the case of Bhogendra Lal vs. The State of Bihar & Others (LPA No 925 of 2023), the learned senior counsel submits that since the appointment of the petitioner was contractual in nature, therefore, a full fledged departmental enquiry is not required. 6. I have heard learned counsel appearing for both the parties and perused the entire material available on record. 7. Undisputedly, the petitioner herein was appointed on contractual basis in the year, 2009 and was getting extension of his services till 2022. From bare perusal of the impugned order of termination (Annexure 13), it transpires that the Authority arrived on the conclusion that all the charges levelled against the petitioner are proved and it was found that the petitioner committed misconduct, as contained in Clauses 2.7 (i) (iii) (xii) of the 2007 Regulations and invoking Clause 1.5 (b) (iv) of the 2007 Regulations, services of the petitioner have been terminated. Show cause notice (Annexure P/5) issued to the petitioner further shows that there were eight allegations levelled against him regarding irregularities committed by him including disobedience of the superior officers. Thus, it is quite clear that an allegation of misconduct was made against the petitioner and on the ground of misconduct, as contained in Clause 2.7 (i) (iii) (xii) of the 2007 Regulations, petitioner has been terminated mentioning the fact that misconduct has been proved against him.
Thus, it is quite clear that an allegation of misconduct was made against the petitioner and on the ground of misconduct, as contained in Clause 2.7 (i) (iii) (xii) of the 2007 Regulations, petitioner has been terminated mentioning the fact that misconduct has been proved against him. Thus, the order of termination clearly shows that it has been passed making certain stigma against the petitioner regarding his misconduct. 8. Dealing with the issue, the Supreme Court, in the case of Dr Vijaykumaran CPV (supra) observed and held in paragraphs 8, 10, 11 and 13 as under:— “8. It is well-established position that the material which amounts to stigma need not be contained in the order of termination of the probationer, but might be contained in “any document referred to in the termination order”. Such reference may inevitably affect the future prospects of the incumbent and if so, the order must be construed as ex facie stigmatic order of termination. … … … 10. In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences, the Court observed thus: (SCC p 528, para 21) “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. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.” 11. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules. … … … 13. …, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as pe the service rules. … … ...” 9.
… … … 13. …, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as pe the service rules. … … ...” 9. In the light of above observation made by the Supreme Court, on examination of the facts of this case in hand, it is clear that a stigmatic order of termination has been passed against the petitioner and, therefore, a full fledged departmental enquiry was required. 10. Perusal of the order further shows that reply of show cause submitted by the petitioner has not been considered by the Authority at all. In his reply to the show cause, the petitioner replied each and every allegations levelled against him but the Authority did not bother to mention any of the grounds taken by him in his reply. It would be appropriate to reproduce the concluding part of the impugned order here which reads thus:— ^^mi;qZDRk xfBr vkjksiksa ij i=kad 5991 fnukad 16-09-23 }kjk Jh 'kqDyk ls Li"Vhdj.k dh ekax djrs gq, viuk i{k j[kus dk volj iznku fd;k x;kA Jh 'kqDyk }kjk Li"Vhdj.k fnukad 22-09-23 izLrqr fd;k x;k ijarq Jh 'kqDyk }kjk lefiZr Li"Vhdj.k izkfèkdkj }kjk vlarks"ktud ik;k x;kA Jh 'kqDyk vius fo:) xfBr vkjksiksa dks [kf.Mr djus esa foQYk gq, gSaA vr% vfHkys[kh; lk{;ksa ds vkèkkj ij Jh 'kqDyk ds fo:) xfBr vkjksi lgh fl) gksrs gSaA** 11. Considering the submissions of learned counsel for the parties and the material available on record, as discussed above, I find that as the impugned order has been passed by the Authority is a stigmatic order, therefore, as observed by the Supreme Court in the case of Dr Vijaykumaran CPV (supra), a full fledged departmental enquiry was required but in this case, it was not done. Further, the petitioner has not been provided any proper opportunity of hearing in this case. The Authority, without recording statement of any witness and without considering the reply of show cause submitted by the petitioner, arrived on the conclusion that the charges levelled against him are proved. The Appellate Authority also did not consider this aspect.
Further, the petitioner has not been provided any proper opportunity of hearing in this case. The Authority, without recording statement of any witness and without considering the reply of show cause submitted by the petitioner, arrived on the conclusion that the charges levelled against him are proved. The Appellate Authority also did not consider this aspect. Hence, both the orders dated 20.10.2023 passed by the Executive Director (Annexure P/13) and the order dated 04.09.2024 passed by the Chairman which has been communicated to the petitioner vide Annexure P/16 are liable to be quashed. 12. Accordingly, the writ petition is allowed. 13. The impugned orders dated 20.10.2023 and 04.09.2024 are quashed. 14. Respondents are directed to reinstate the services of the petitioner forthwith. 15. The petitioner is entitled to get all applicable consequential benefits.