Jharkhand High Court
Ravindra Kumar vs The State Of Jharkhand Through Its ... on 25 October, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3702 of 2021
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Ravindra Kumar, aged about 50 years, son of Jagannath
Roy, resident of Bhadwari, Nonihat, P.O. Bhadwari, P.S.
Hansdiha, District Dumka, Jharkhand.
....Petitioner
Versus
1. The State of Jharkhand through its Secretary, Health
Education and Family Welfare Department, having
its office at Project Bhawan, P.O. Dhurwa, P.S.
Dhurwa, District Ranchi;
2. The Additional Chief Secretary-cum-Chairman,
Jharkhand Rural Health Mission, having its office at
Namkum, P.O. Namkum, P.S. Namkum, District
Ranchi;
3. The Project Director, National Health Mission,
Jharkhand having its office at Namkum, P.O.
Namkum, P.S. Namkum, District Ranchi;
4. The Additional Project Director, National Health
Mission, Jharkhand having its office at Namkum,
P.O. Namkum, P.S. Namkum, District Ranchi;
5. Deputy Commissioner-cum-Chairman, District
Health Committee, Dumka having its office at
Dumka, P.O. Dumka and P.S. Dumka, District-
Dumka, Jharkhand;
6. Civil Surgeon cum Chief Medical Officer, Dumka
having its office at Dumka, P.O. Dumka, P.S.
Dumka, District Dumka, Jharkhand.
....Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Indrajit Sinha, Adv.
Mr. Ankit Vishal, Adv.
For the Resp.-State : Mr. Om Prakash Tiwari, G.P.-III
Mr. Mukul Kr. Singh, A.C. to G.P.-III
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CAV ON:- 16.08.2024 PRONOUNCED ON:-25/10/2024
Heard learned counsels for the parties.
2. The instant writ application has been preferred by
the petitioner praying therein for quashing of the office order as
contained in Memo No.2366 (MD) dated 13.08.2021 (Annexure-
11) issued by respondent No.3; whereby the petitioner has been
terminated from service with immediate effect upon payment of
one-month advance honorarium.
3. The brief fact of the case lies in a narrow compass.
Jharkhand Rural Health Mission Society, Ministry of Health
and Welfare Family, vide an advertisement (Annexure-1), invited
eligible candidates for appointment on the post of Block
Accounts Manager along with the other posts on contractual
basis. The appointment on the said post was to be made on the
basis of walk-in-interview.
Pursuant to the aforesaid advertisement, the
petitioner applied for the post of Block Accounts Manager and
consequently, the petitioner was selected on the said post vide
letter dated 01.10.2008 (Annexure-2), issued by State RCH
Officer. Thereafter, the petitioner was posted at Primary Health
Centre (PHC), Jama, Dumka vide office order No.1210 (RCH)
dated 15.10.2008 (Annexure-3), issued under the signature of
Superintendent-cum-State RCH Officer, Jharkhand.
Further facts of the case are that the Civil Surgeon-
cum-Chief Medical Officer, Dumka vide order contained in
memo No.2618 dated 21.10.2008 (Annexure-4), directed the
petitioner to report to the CHC, Dumka for joining the service
and pursuant to the aforesaid order, the petitioner vide letter
dated 26.10.2008 (Annexure-5), reported to the office of Primary
Health Centre, Dumka for joining the duty.
On 17.12.2020, the A.N.M workers of the
Community Health Centre, Jama, vide letter dated 17.12.2020,
requested the Block Development Officer, Jama, to take
appropriate action against the petitioner for making delayed
payment of salary and coming late to the office apart from other
allegations. The Block Development Officer, Jama visited the
Community Health Centre and conducted an enquiry against
the petitioner, wherein the petitioner was found guilty of
following misconduct. Based on the aforesaid finding, the Block
Development Officer vide letter dated 24.12.2020 (Annexure-6),
forwarded the report to the Deputy Commissioner, Dumka for
taking appropriate action against the petitioner.
Based on the enquiry report submitted by the Block
Development Officer, Jama, the Deputy Commissioner, Dumka
vide letter No. 92 dated 11.01.2021 (Annexure-7), came to a
conclusion that the conduct of the petitioner is unbecoming of a
public servant and further recommended the Project Director,
National Health Mission, Jharkhand to initiate appropriate
proceedings against the petitioner or else transfer the petitioner
to another Centre. Pursuant to the above-mentioned letter
dated 11.01.2021, the Additional Project Director, National
Health Mission, Jharkhand vide letter contained in memo No.
46 (AMD) dated 12.02.2021 (Annexure-8), issued show cause to
the petitioner. In reminder to the letter dated 12.02.2021, the
Civil Surgeon-cum-Chief Medical Officer, Dumka vide letter
contained in memo No.552 dated 12.03.2021 (Annexure-9),
directed the petitioner to submit his reply to the show cause.
The petitioner vide letter dated 15.03.2021 (Annexure-10),
submitted his reply to the show cause dated 12.03.2021,
denying all the allegations as leveled against him and further
requested the authorities to consider the past conduct and
responsibilities of the petitioner.
Thereafter, not being satisfied with the reply
submitted by the petitioner and based on the recommendation
of the Deputy Commissioner-cum-Chairman, District Health
Committee, the respondent No.3 vide office order contained in
memo no. 2366 (MD) dated 13.08.2021 (Annexure-11),
terminated the services of the petitioner with immediate effect
upon payment of one-month advance honorarium on account of
unsatisfactory work and indiscipline. Further the Civil Surgeon-
cum-Chief Medical Officer, Dumka vide order contained in
memo No.1751 dated 16.08.2021 (Annexure-12), directed the
Medical Officer In-Charge, Community Health Centre, Jama, to
remove the petitioner and make payment of advance
honorarium of one month.
4. Learned counsel for the petitioner submits that
though, the petitioner was appointed on 01.10.2008, but in the
year 2021 i.e., after about 13 years of regular service of this
petitioner, he has been terminated without following the proper
course of enquiry only on the basis of a complaint and the
impugned order is stigmatic in nature; as such, a full-fledged
enquiry is required in a case when the order is stigmatic in
nature. He further submits that it is immaterial that the
appointment of the petitioner was temporary, but in view of the
settled proposition of law, when the order that is stigmatic in
nature, is passed without following proper enquiry then the
same is bad in law.
Learned counsel draws attention of this Court
towards the impugned order (Annexure-11) and submits that
the petitioner has been terminated only on the basis of a
complaint made by A.N.M. workers of the Community Health
Centre, who requested the Block Development Officer to take
appropriate action against the petitioner for making delayed
payment of salary and coming late to the office. Accordingly, he
contends that since the order is stigmatic in nature; as such, in
view of the judgment rendered in the case of Dr.
Vijayakumaran C.P.V. v. Central University of Kerela and
Others reported in (2020) 12 SCC 426, the impugned order
deserves to be quashed and set aside and the petitioner should
be reinstated in service.
5. Learned counsel for the respondents submits that
the writ petitioner was not attending the office regularly and
was making the attendance in the attendance sheet by
overwriting and also used to make delay in payment of salary to
the Government employees and a complaint was also lodged
against the petitioner and pursuant to the complaint, the
Deputy Commissioner, Dumka directed the Block Development
Officer to inquire into the matter and pursuant thereto; the
Block Development Officer, Jama, submitted his detailed report,
who found the allegation against the petitioner to be true and
thereafter, in the light of report and opinion made by the
Deputy Commissioner, a show cause notice was issued to the
petitioner to which he replied and thereafter, he has been
terminated; as such, principle of natural justice has been fully
complied.
6. Having heard learned counsels for the parties and
after going through the documents available on record and the
averments made in the respective affidavits, it appears that the
petitioner was posted as Block Accounts Manager on
contractual basis vide office order dated 15.10.2008 at Primary
Health Centre, Jama, Dumka under National Health Mission,
Jharkhand and he continued to work till issuance of the
impugned order.
After perusing the impugned order, it is crystal clear
that the order is stigmatic in nature; as such, as per the settled
proposition of law, as held by the Hon'ble Apex Court in catena
of judgments that if an order is stigmatic in nature; even in the
case of temporary employee, proper enquiry should be
conducted. In the instant case, it appears that by giving a show
cause notice and taking a reply was a mere formality to show
that natural justice has been complied with.
7. Admittedly, when the enquiry was conducted
pursuant to the complaint made against this petitioner, the
petitioner was never given any opportunity to appear in the
enquiry. Subsequently, no personal opportunity of hearing was
given to this petitioner and further, the reply to the show-cause
which was filed by the petitioner has not been taken into
consideration and the concerned authority who has passed the
order of termination, appears to be biased and having
preconceived notion while passing the order, due to the fact and
report of the enquiry committee.
8. At the cost of repetition, the petitioner was neither
given any opportunity in the enquiry conducted pursuant to the
complaint made against the petitioner; nor he has been given
opportunity of hearing before the concerned respondent while
passing the impugned order. In the case of Dr. Vijayakumaran
C.P.V. (supra), the Hon'ble Apex Court has held in para 7, 8, 11
to 13 which is extracted hereinbelow:
"7. Accordingly, the moot question before us is whether the order dated 30-
11-2017 can be regarded as order of termination simpliciter or is ex facie
stigmatic? Going by the tenor of the stated order, it is incomprehensible as to
how the same can be construed as termination simpliciter, when it has
made the report of the inquiry conducted by the Internal Complaints
Committee and the decision of the Executive Council dated 30-11-2017 as
the foundation, in addition to the ground of academic performance. Had it
been a case of mere unsatisfactory academic performance, the situation
would have been entirely different. The stated order not only adverts to the
report of the Internal Complaints Committee, but also the decision taken by
the Executive Council, which in turn highlights the fact that the appellant
had to face an inquiry before the Committee in reference to the allegations of
serious misconduct committed by him. Notably, the appellant has been
subjected to a formal inquiry before the Committee constituted under
statutory regulations to inquire into the allegations bordering on moral
turpitude or misconduct committed by the appellant and that inquiry
culminated in a finding of guilt against the appellant with recommendation
of the Executive Council to proceed against the appellant as per the service
rules. In such a situation, it is unfathomable to construe the order as order of
termination simpliciter.
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. A three-Judge Bench of this Court in Indra Pal Gupta v. Model
Inter College had occasion to deal with somewhat similar situation. In that
case, the order of termination referred to the decision of the Managing
Committee and subsequent approval by the competent authority as the basis
for termination. The resolution of the Managing Committee in turn referred to
a report of the Manager which indicated serious issues and that was made
the basis for the decision by the Committee to terminate probation of the
employee concerned.
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. As a matter of fact, the Internal
Complaints Committee had recommended to proceed against the appellant
appropriately but the Executive Council proceeded under the mistaken belief
that in terms of Clause 7 of the contract, it was open to the Executive Council
to terminate the services of the appellant without a formal regular inquiry as
per the service rules. Indisputably, in the present case, the Internal
Complaints Committee was constituted in reference to the complaints
received from the girl students about the alleged misconduct committed by
the appellant, which allegations were duly inquired into in a formal inquiry
after giving opportunity to the appellant and culminated with the report
recording finding against the appellant with recommendation to proceed
against him.
12. Upon receipt of complaints from aggrieved women (girl students of the
University) about the sexual harassment at workplace (in this case,
University campus), it was obligatory on the Administration to refer such
complaints to the Internal Committee or the Local Committee, within the
stipulated time period as predicated in Section 9 of the Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(for short "the 2013 Act"). Upon receipt of such complaint, an inquiry is
required to be undertaken by the Internal Committee or the Local Committee
in conformity with the stipulations in Section 11 of the 2013 Act. The
procedure for conducting such inquiry has also been amplified in the 2015
Regulations. Thus understood, it necessarily follows that the inquiry is a
formal inquiry required to be undertaken in terms of the 2015 Regulations.
The allegations to be inquired into by such Committee being of "sexual
harassment" defined in Section 2(n) read with Section 3 of the 2013 Act and
being a serious matter bordering on criminality, it would certainly not be
advisable to confer the benefit on such employee by merely passing a simple
order of termination. Such complaints ought to be taken to its logical end by
not only initiating departmental or regular inquiry as per the service rules,
but also followed by the other actions as per law. In such cases, a regular
inquiry or departmental action as per service rules is also indispensable so
as to enable the employee concerned to vindicate his position and establish
his innocence. We say no more.
13. A priori, 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 per
the service rules. On this conclusion, the appellant would stand reinstated,
but whether he should be granted back wages and other benefits including
placing him under suspension and proceeding against him by way of
departmental or regular inquiry as per the service rules, is, in our opinion, a
matter to be taken forward by the authority concerned in accordance with
law. We do not intend to issue any direction in that regard keeping in mind
the principle underlying the exposition of the Constitution Bench in ECIL v.
B. Karunakar. In that case, the Court was called upon to decide as to what
should be the incidental order to be passed by the Court in case after
following necessary procedure, the Court/Tribunal was to set aside the
order of punishment. The Court observed thus: (SCC p. 758, para 31)
"31. ... Where after following the above procedure, the Court/Tribunal
sets aside the order of punishment, the proper relief that should be
granted is to direct reinstatement of the employee with liberty to the
authority/management to proceed with the inquiry, by placing the
employee under suspension and continuing the inquiry from the stage
of furnishing him with the report. The question whether the employee
would be entitled to the back wages and other benefits from the date
of his dismissal to the date of his reinstatement if ultimately ordered,
should invariably be left to be decided by the authority concerned
according to law, after the culmination of the proceedings and
depending on the final outcome. If the employee succeeds in the fresh
inquiry and is directed to be reinstated, the authority should be at
liberty to decide according to law how it will treat the period from the
date of dismissal till the reinstatement and to what benefits, if any
and the extent of the benefits, he will be entitled. The reinstatement
made as a result of the setting aside of the inquiry for failure to furnish
the report, should be treated as a reinstatement for the purpose of
holding the fresh inquiry from the stage of furnishing the report and no
more, where such fresh inquiry is held. That will also be the correct
position in law." (emphasis supplied)
Following the principle underlying the abovequoted exposition, we
proceed to hold that even though the impugned order of termination dated
30-11-2017 is set aside in terms of this judgment, as a result of which the
appellant would stand reinstated, but at the same time, due to flawed
approach of Respondent 1 University, the entitlement to grant back wages is
a matter which will be subject to the outcome of further action to be taken by
the University as per the service rules and in accordance with law."
9. After going through the aforesaid order, it is clear
that the Hon'ble Apex Court has, in unequivocal term, held that
a formal enquiry is necessary in the case of punitive
termination. In the above referred case also, the petitioner was
a temporary employee and a contract was entered into between
the parties.
10. Learned counsel for the respondents has relied upon
the judgment passed by the coordinate bench of this Court in
W.P.(S) No.1832 of 2020 and W.P.(S) No.5870 of 2016 with
analogous cases, but the issue of an impugned order being
stigmatic in nature, was not discussed in those cases;
accordingly, since the order of termination is stigmatic in
nature having far reaching effects in future, the same deserves
to be quashed and set aside.
Accordingly, the impugned order dated 13.08.2021 is
quashed and set aside. However, the respondents would be at
liberty to hold a fresh enquiry against this petitioner and pass a
fresh order, if so advised.
It goes without saying that since the order of
termination has been quashed and set aside; the petitioner
would be reinstated in service forthwith on the same terms and
conditions on which he was working earlier.
11. Accordingly, the instant writ application stands
allowed.
(Deepak Roshan, J.)
Jharkhand High Court
Dated:- 25/10//2024
vikas/-
AFR
