Dola Mukherjee vs The State Of Jharkhand
2023 Latest Caselaw 470 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                W.P.(S) No. 3298 of 2020

              Dola Mukherjee, aged about 45 years, D/o- Shashank Kumar
              Mukherjee and W/o- Debojit Chakraborty, R/o- MADA Colony near
              Pump House, Hirapur, Dhanbad, PO-Dhanbad, P.S. Hirapur, District
              Dhanbad (Jharkhand)                           ...      ...   Petitioner
                                       Versus
              1. The State of Jharkhand, through the Chief Secretary, Government
                 of Jharkhand, Ranchi
              2. Principal Secretary, Human Resources Department, Government of
                 Jharkhand, Ranchi,
              3. The Secretary, School Education and Literacy Department,
                 Government of Jharkhand, Ranchi
              4. The State Project Director, Jharkhand Education Project Council at
                 Shyamli Colony, Doranda, Ranchi
              5. Deputy Commissioner, Bokaro
              6. District Education Officer cum District Programme Officer,
                 Bokaro
              7. Additional District Programme Officer, Giridih, P.O. & P.S.
                 Bokaro, District Bokaro (Jharkhand).
              8. Block Education Expansion Officer, Chandankiyari, Bokaro,
                 District- Bokaro                    ...        ...      Respondents
                                       ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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              For the Petitioner              : Mr. R.N. Sahay, Senior Advocate
                                              : Ms. Rishika Kaushik, Advocate
              For the Respondent-State        : Ms. Sunita Kumari,
                                              : A.C. to Sr. S.C. II
              For the Resp. Nos.- 4 & 6       : Mr. Krishna Murari, Advocate
                                              : Mr. Raj Vardhan, Advocate
                                              ---
09/27.01.2023        Heard Mr. R.N. Sahay, learned senior counsel appearing on

behalf of the petitioner along with Ms. Rishika Kaushik, Advocate.

2. Heard Mr. Krishna Murari, learned counsel appearing on behalf of the respondent Nos. 4 and 6.

3. Heard Ms. Sunita Kumari, learned counsel appearing on behalf of the respondent-State.

4. This writ petition has been filed for the following reliefs:-

"The petitioner has prayed to quash and set aside the Office order vide Memo No. 25/Court Case/17-18/40/259 dated 15.07.2020 (Annexure-20) whereby the District Education Officer cum District Programme Officer, Bokaro (Respondent No. 6) has terminated the services of the petitioner on the recommendation of a two member Committee and further on the allegations that her services are not in the interest of the students, however these allegations are beyond the scope of the Show Cause Notice and therefore suffers from gross violation of the principles of Natural Justice as the petitioner was not heard on the ground(s) on which she was terminated by the Respondent. Neither the petitioner was provided any opportunity of

hearing by the said Committee on such allegations on which the recommendation was based upon, nor the said recommendation of termination had been provided/communicated to the petitioner. Thus the entire action of the Respondents is mere an eye wash of the Order(s) passed by this Hon'ble Court in WPS/5303/2018 and W.P. (S) No. 174/2019 in its true Letter and Spirit.

AND Further be pleased to stay the operation of Office Order vide Memo No. 25/Court Case/17-18/40/259 dated 15.07.2020 (Annexure-

20) issued by District Education Officer-cum-District Programme Officer, Bokaro."

Arguments of the Petitioner.

5. It is not in dispute that the petitioner had moved this court earlier in W.P. (S) No. 5303 of 2018 along with one Smt. Kiran Bhogta. The petitioner in the earlier round of litigation had prayed for quashing the memo dated 16.08.2018 issued by District Superintendent of Education, whereby the services of the petitioners were terminated from Kasturba Gandhi Girls Residential school, Chandankiyari. As per the order, the specific grievance of the petitioner was that the said order was passed without serving any notice or show cause or opportunity of hearing to the petitioner.

6. The earlier writ petition filed by the present petitioner being W.P. (S) No. 5303 of 2018 was disposed of in terms of order dated 07.02.2019 passed in W.P. (S) No. 174 of 2019.

7. The said writ petition being W.P. (S) No. 174 of 2019 was filed by another person, namely, Bibha Kumari, and in that case also, impugned order dated 16.08.2018 was challenged. The said order was set aside on ground of violation of principles of natural justice as in the said case also, before passing the termination order, the petitioner of the said case was neither heard nor she was noticed. In the said case filed by Bibha Kumari, the matter was remitted back to Additional District Programme Officer, Bokaro, who was directed to issue notice to the petitioner and after giving an opportunity of hearing was directed to, independently, without being influenced by any order, pass appropriate reasoned order in respect of the said petitioner and the entire process was directed to be completed within 12 weeks from the date of receipt/production of a copy of the order.

8. Consequently, a show cause notice was issued to the petitioner in compliance of the order passed by this court vide Notice dated 26.11.2019 (Annexure-14).

9. In the meantime, the petitioner had filed one Civil Review Application being Civil Review No. 123 of 2019 seeking review of the order passed by this court in W.P. (S) No. 5303 of 2018. The said civil review petition remained pending before this court and in response to the show cause notice dated 26.11.2019 and also subsequent notices to respond to the allegation, the petitioner, instead of responding to the allegations on merit, informed the authority about pendency of the civil review application and consequently no response on the merit of the allegation made in the show cause notice dated 26.11.2019 was filed. Ultimately the impugned order dated 15.07.2020 (Annexure-20) was passed and the civil review application was withdrawn on 07.09.2020 (Annexure-10) with an observation that liberty was reserved with the petitioner to challenge the order if at all aggrieved.

10. Learned counsel for the petitioner has submitted that the impugned order is perverse and non-speaking. He has also submitted that the impugned order is stigmatic as it has been passed by holding that the petitioner was being removed in the interest of the students although no such allegation was made in the show cause notice.

11. He has also submitted that the impugned order reflects that the matter was placed before some committee, but neither the committee report has been furnished to the petitioner nor the petitioner was granted any opportunity of hearing to respond to the committee report. The learned counsel has also referred to the judgment passed by the Hon'ble Supreme Court in the case of Managing Director, ECIL Hyderabad versus B. Karunakar reported in (1993) 4 SCC 727 paragraph 13 to 19, to submit that the enquiry report is to be given to the delinquent person and in absence of supply of enquiry report, the order of punishment cannot be sustained in the eyes of law as it amounts to gross violation of principles of natural justice. Learned counsel submits that the two-member committee report has admittedly not been served upon the petitioner.

12. The learned counsel has further submitted that in the counter affidavit, the respondents have stated that there is loss of confidence in the petitioner. He has referred to the judgment passed by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another versus Chief Election Commissioner, New Delhi and others reported in (1978) 1 SCC 405, to submit that the reasons mentioned in the impugned order cannot be supplemented by counter affidavit. The learned counsel has also referred to the judgment passed by the Hon'ble Supreme Court reported in (1987) 1SCC 146 (Kamal Kishore Lakshman versus Management of M/s PAN American World Airways Inc.), para 7,8 and 9, to submit that allegation of loss of confidence amounts to stigma.

13. Learned counsel has submitted that in view of the aforesaid facts and circumstances, the impugned order of termination cannot be sustained in the eyes of law and accordingly the same be set aside. Arguments of the Respondent.

14. The learned counsel appearing on behalf of respondent Nos. 4 and 6, while opposing the prayer of the petitioner, has submitted that once the order of this court was passed to grant an opportunity of hearing to the petitioner by issuing a show cause and a time frame was also granted, there was no occasion for the respondents to wait for the ultimate outcome of the civil review petition. The learned counsel submits that pursuant to the order passed by this court, a detailed show cause was issued making very serious allegation against the petitioner and the petitioner did not respond to the said show cause on merit and simply stated that the civil review petition was pending, therefore, the impugned order does not call for any interference by this court. The learned counsel submits that the petitioner having not availed the opportunity granted by the order passed by this court cannot complain of violation of principles of natural justice.

15. The learned counsel has further submitted that the appointment of the petitioner was purely contractual in nature. He also submits that appointment letter is at Annexure-1 and the terms of appointment is at Annexure-A to the counter affidavit. He submits that the petitioner is governed by the terms and conditions of employment and violation of the terms and conditions of employment were specifically referred to

in the show cause notice. The petitioner having not responded, has been rightly removed from service.

16. The learned counsel further submits that so far as the committee report is concerned, the same has been annexed as Annexure-C to the counter affidavit which only deliberated upon the fact that the petitioner had not responded to any of the allegations mentioned in the show cause notice and had simply mentioned about the pendency of the civil review application. The learned counsel submits that the committee report has no bearing in the matter, rather, the petitioner has not been prejudiced by non-furnishing a copy of the committee report as the petitioner did not respond to the show cause notice on merits.

17. The learned counsel has relied upon the judgment reported in (2020) 3 JBCJ 1 (Para 24) to submit that the fact mentioned in the show cause notice and not denied, need not be proved. The learned counsel further relied upon the judgement passed by the Hon'ble Supreme Court reported in (2019) 6 SCC 250 para 6 to 10 to submit that terms of appointment being purely contractual, petitioner could have been dispensed with even without notice as per the terms of employment. He has also referred to judgment passed by the Hon'ble Supreme Court reported in (2008) 8 SCC 92 paragraph 17 to submit that there is a distinction between public employment governed by statutory rules and contractual employment governed by contract. He has also submitted that in case of termination of contractual appointment, there cannot be an order of re-instatement by the writ court.

Rejoinder arguments of the petitioner.

18. In response, learned counsel for the petitioner has submitted that the argument of the respondents regarding their power to discontinue the employment even without notice is not tenable in view of the fact that the petitioner has been removed on the basis of allegations and therefore all facets of compliance with the principles of natural justice was required to be followed.

Findings of this Court.

19. After hearing the learned counsel for the parties, this Court finds that it is not in dispute that the petitioner was appointed as Language teacher in Kasturba Gandhi Balika Vidyalaya (hereinafter referred to as 'school') vide letter no.2201 dated 31.03.2011, which was communicated to the petitioner vide letter dated 26.04.2011 (Annexure - 1). Upon perusal of the said letter of appointment, it has been clearly mentioned therein that the appointment of the petitioner was contractual. The terms and conditions of the engagement of the petitioner has been annexed as annexure-A to the counter Affidavit .

20. It is further not in dispute that the services of the petitioner were terminated vide order dated 16.08.2018 (Annexure - 2). From perusal of the said order, it appears that along with the petitioner, two other teachers of Kasturba Gandhi Balika Vidyalaya were terminated. The petitioner was from Kasturba Gandhi Balika Vidyalaya at Nawadih. The other two persons were Kiran Bhokta from Kasturba Gandhi Balika Vidyalaya, Petarwar and Vibha Kumari from Kasturba Gandhi Balika Vidyalaya, Jaridih.

21. The aforesaid Ms. Vibha Kumari had filed writ petition before this Court being W.P.(S). No.174 of 2019 challenging the order of termination issued by District Superintendent of Education-cum- District Programme Officer, Bokaro and the specific case was that before passing termination order, neither she was heard nor she was noticed and consequently, it was an admitted position that there has been violation of principles of natural justice. As a consequence, thereof, in the case of Vibha Kumari, the order of termination dated 16.08.2018 was set aside and all the consequential orders were also set aside. The matter was remitted back to the Additional District Programme Officer, Bokaro and after issuing notice to the said petitioner and after giving an opportunity of hearing, was directed to independently, without being influenced by any order, pass appropriate reasoned order with respect to the said petitioner. It was also directed to complete the entire process within a period of 12

weeks from the date of receipt of copy of the order. The said writ petition was disposed of vide order dated 07.02.2019 (Annexure - 9).

22. It further appears that the petitioner along with Kiran Bhokta had filed another writ petition before this Court being W.P.(S). No.5303 of 2018 (Annexure - 8) and again a plea was raised that the services of the petitioners were terminated from Kasturba Gandhi Girls Residential School, Chandankiyari without serving any notice or show cause or opportunity of hearing to the petitioners. It was submitted by the learned counsel for the petitioners in W.P.(S). No.5303 of 2018 that similarly situated person had moved this Court in W.P.(S). No.174 of 2019, which was disposed of on 07.02.2019 and it was submitted that in view of the said order, the order impugned was not tenable in the eyes of law and it was prayed that the writ petition may be disposed of in terms of the order passed in W.P.(S). No.174 of 2019. It is important to note that in the writ petition being W.P.(S). No.5303 of 2018, no counter-affidavit as such was filed. Para 5 and 6 of the aforesaid order is quoted as under:

"5. I have gone through order dated 07.02.2019, passed in W.P.(S) No. 174 of 2019 and find force in submission of learned counsel for the petitioners. The petitioners herein are also aggrieved by the same impugned Memo No.23/KGBV/01//13/PV/1054 Bokaro dated 16.08.2018 which has already been quashed by a co-ordinate Bench of this Court in W.P.(S) No. 174 of 2019.

6. As a sequel of aforesaid discussion, this writ petition stands disposed of with a direction to the respondents to grant the similar benefits to the present writ petitioners also in terms of order dated 07.02.2019 passed in W.P.(S) No.174/2019."

23. After the order dated 15.10.2019 passed in W.P.(S). No.5303 of 2018, in the light of the direction passed by this Court the petitioner was served a show cause notice dated 26.11.2019. The following allegations were made:

(i) Vide office order dated 26.07.2018, the petitioner was granted an opportunity by way of last chance to join at Kasturba Gandhi Balika Vidyalaya, Chandankiyari and in order to save her service, she gave her joining on 28.07.2018. Thereafter on 30.07.2018, she left the place of posting without any intimation to the controlling authority and by stating that she was not well.

(ii) Thereafter, she joined on 08.08.2018 at 11 a.m. in Kasturba Gandhi Balika Vidyalaya, Chandankiyari and in the joining letter, it was mentioned that she was fit.

(iii) After giving joining, on 10.08.2018, she was made the Incharge of the school in the capacity of warden vide office order dated 10.08.2018. Upon receiving such order, the petitioner rang up the District Superintendent of Education and denied to accept the charge of warden and also stated that he could do whatever he wanted to do. Thereafter, in the evening at 5.12 p.m., she informed ADPO that "she was seriously ill and if she would remain in the school she will die" and thereafter, she left the school.

(iv) The cook Panchmi Devi, had given a letter dated 10.08.2018 at 8 a.m. that one student had come to the petitioner and Vibha Kumari to give information about sickness of another student and upon this, the petitioner and Vibha Kumar started fighting and thereafter, the guard was informed about the fight.

(v) The fifth allegation was that in view of the aforesaid, the petitioner and Vibha Kumari were running away from their responsibilities and were indifferent to their duties.

(vi) The petitioner was appointed to take care of the residential girls' school, but the petitioner did not co- operate for the same. It was stated that in the agreement of appointment, it was mentioned that the petitioner would be staying in the school premises and that she would be abiding by the various directions and further that she could be discontinued at any time. It was also mentioned that on account of non-compliance to any of the conditions of contract, her services can be terminated at any time.

The petitioner was asked to furnish her response pointwise on 03.12.2019 (Annexure - 14).

24. Pursuant to the aforesaid show cause notice, the petitioner filed her attendance on 03.12.2019 (Annexure - 15) and also filed her

explanation vide another letter dated 03.12.2019 (Annexure - 15) wherein, she had referred to her letter of transfer dated 16.07.2018 and that she had joined pursuant to such transfer on 26.07.2018 and that she has filed a civil review petition before the High Court which was pending. The petitioner did not respond to any of the allegations which were levelled against her in show cause notice dated 26.11.2019.

25. Thereafter, the petitioner was issued another letter dated 03.02.2020 (Annexure - 16), wherein the date of hearing was fixed on 06.02.2020. However, the petitioner could not appear on 06.02.2020 and filed a response on 07.02.2020 explaining the reason for her non- appearance. Thereafter, she was issued another letter dated 13.06.2020 (Annexure - 18) fixing the date of hearing as 19.06.2020, to which, she filed a response on 19.06.2020 and mentioned that a civil review petition was pending before High Court and filed her attendance. Ultimately, the impugned order dated 15.07.2020 (Annexure - 20) was passed, wherein it was mentioned that on 09.07.2020, the District Working Committee had unanimously decided to terminate the contractual appointment of the petitioner and another person, namely Kiran Bhokta, in the interest of the students. It has also been decided that was no salary would be payable to the petitioner from 16.08.2018 on the basis of "no work no pay" and consequently, interalia, the services of the petitioner was terminated.

26. From the records of this case, it appears that the earlier order of termination of the petitioner was set aside on the ground that no opportunity of hearing / show cause was issued prior to passing the order of termination and direction was issued to the respondent - authority to comply with the principles of natural justice and pass appropriate order within a period of 12 weeks. The petitioner was consequently issued a fresh show cause notice, but the petitioner instead of properly responding to the allegations made in the show cause notice, has been intimating the authority that a civil review petition is pending. Pendency of the civil review petition could not have been a ground to seek time particularly when a time line was prescribed by this court in the writ order and later on, the civil review petition was withdrawn. No arguments have been advanced by the

learned senior counsel for the petitioner to satisfy this court as to point on which the civil review petition was filed and what was the reason for the petitioner to await the order to be passed in the civil review petition. This court is of the considered view that that the petitioner opted not to respond to the allegations made in the show cause notice and repeated notices issued to her for that purpose , at her own peril and the allegations levelled against the petitioner remained uncontroverted and ultimately the impugned order has been passed. Petitioner having chosen not to respond to the allegations on merits in spite of opportunity granted to the petitioner through the show cause notice cannot complain of any violation of principles of natural justice and fair play.

27. So far as non-service of the two-member committee report, which had deliberated upon the case of the petitioner, is concerned, the same has been brought on record by the respondents through the counter affidavit. The report dated 19.06.2020 has prepared a comparative chart regarding the allegations and explanation furnished by the petitioner; mentioned that no explanation was given by the petitioner to the allegations and recorded that the petitioner has violated the terms of the contract by not adhering to the directions issued to the petitioner from time to time and recommended for termination of the contract of the petitioner. This court is of the considered view that no prejudice has been caused to the petitioner by non-service of the two member committee report when the petitioner did not respond and chose not to respond to any of the allegations levelled against her in the show cause notice which clearly mentioned about violation of terms and conditions of the contract of employment. This court is of the considered view that it would have made no difference if the committee report was provided to the petitioner. The committee report was not the report of any enquiry officer. It was merely a deliberation of the committee with regards to the allegations levelled against the petitioner and her response to such allegations and the consequences of no response to the allegations from the side of the petitioner. Otherwise also even in the judgement relied upon by the petitioner i.e. Managing Director, ECIL Hyderabad versus B. Karunakar reported in (1993) 4 SCC 727 paragraph 31, it has been

clearly observed that if the court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings, the court/tribunal should not interfere with the order of punishment. In view of the aforesaid facts and circumstances of this case, this court is of the considered view that non supply of the committee report would have made no difference at all as the petitioner did not choose to respond to the allegations levelled against her in the show cause notice.

28. This court is also of the considered view that the employment of the petitioner was contractual employment governed by contract and upon violation of the terms of the contract, the respondents were within their right to terminate the contract. In the present case, the contract has been terminated after giving due opportunity to the petitioner in which the petitioner did not choose to deny the allegations leveled against her. There is no doubt that the reasons mentioned in the impugned order cannot be supplemented by counter affidavit. The learned counsel for the petitioner has referred to the counter affidavit and has stated that as per counter affidavit , loss of confidence has been alleged which is stigmatic although there is no such reason in the impugned order of termination. This court is of the considered view that the impugned order is a well-reasoned order and even if, the loss of confidence as alleged in the counter affidavit is ignored, the same will make no difference. The impugned order reflects violation of terms and conditions of contract of employment and on account of such violation, the petitioner has been terminated taking into account the interest of the children of the residential school. This court is also of the considered view that the termination of the contract of employment of the petitioner in the interest of the students cannot be said to be beyond the show cause notice issued to the petitioner. The show cause notice specifically mentioned about violation of terms and conditions of the contract of employment and having violated the same, the impugned order has been passed taking into account the interest of the students of the residential girl's school.

29. As a cumulative effect of the aforesaid findings, this court finds no merits in this writ petition, which is hereby dismissed.

30. Interim order, if any, is vacated.

31. Pending Interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.) Binit/Pankaj