Jharkhand High Court
Priyanka Kumari Singh vs State Of Jharkhand Through The ... on 6 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 86 of 2024
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Priyanka Kumari Singh, Age about 38 years, W/o Sri
Vikrant Kumar, R/o. Old Gas Godown, Ratu Road,
Ranchi, P.O.-Hehal, P.S. Sukhdeonagar, District-Ranchi
(Jharkhand).
....Petitioner
Versus
1. State of Jharkhand through the Principal Secretary,
Health Medical Education and Family Welfare
Department, Government of Jharkhand, having its
office at Project Bhawan, Dhurwa Ranchi, P.O. &
P.S. Dhurwa, District Ranchi;
2. The Joint Secretary, Health Medical Education and
Family Welfare Department, Government of
Jharkhand, having its office at Project Bhawan,
Dhurwa Ranchi, P.O. & P.S. Dhurwa, District
Ranchi;
3. Regional Deputy Director, Health Service,
Government of Jharkhand, South Chhotanagpur
Division, Ranchi having its office at Health
Directorate, Namkum, P.O. & P.S. Namkum, District
Ranchi;
4. Project Director, National Health Mission,
Government of Jharkhand, having its office at Health
Directorate, Namkum, P.O. & P.S. Namkum, District
Ranchi;
5. Civil Surgeon-cum-Chief Medical Officer, Ranchi
having its office at Sadar Hospital Campus, Main
Road, Ranchi, P.O.- GPO, P.S. Kotwali, District
Ranchi;
6. Medical officer incharge, Community Health Center,
Kanke, P.O. & P.S. Kanke, District Ranchi.
....Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Saurav Arun, Adv.
Ms. Sharon Kerketta, Adv.
Ms. Ayushi, Adv.
Mr. Bhanu Kumar No.1, Adv.
For the Resp.-State : Mr. Manav Poddar, A.C. to A.A.G.-I
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06/Dated: 06.09.2024
Heard learned counsels for the parties.
2. The instant writ application has been preferred by the
petitioner praying therein for quashing and setting aside the office
order No.9/RCH-537/2023-617(MD) dated 15.12.2023 (Annexure-
10) issued by the respondent No.4 and its follow up office order
issued under memo No.2172 dated 20.12.2023 (Annexure-10/A)
issued by the office of respondent No.5; whereby the petitioner
was terminated and removed with immediate effect.
3. At the outset, learned counsel for the petitioner draws
attention of this Court towards the impugned order which is at
page-44 (Annexure-10) and submits that this order is stigmatic in
nature and now, the law is well settled that any order which is
stigmatic in nature then the normal principle of natural justice
with regard to the proper enquiry, asking for a reply is necessary,
which is absent in the instant case.
He contended that the impugned order of termination
clearly transpires that there is a complete non-application of mind
and no reason has been assigned and the reply filed by the
petitioner has not at all been discussed. He further relied upon the
judgment passed in the case of Dr. Vijayakumaran C.P.V. v.
Central University of Kerala & Ors. reported in (2020) 12 SCC
426, wherein the Hon'ble Apex Court has held that a full-fledged
enquiry is required even if a contractual employee is terminated if
the order of termination is stigmatic in nature. He further referred
to the order passed in the case of Neelam Kumari v. The State
of Jharkhand (W.P.(S) No.3924 of 2023) and submits that in
similar matter this Court has quashed and set aside the order of
termination and the respondents were directed to reinstate the
petitioner, however, a liberty was given to the respondents in that
case that they may proceed with a fresh enquiry after following
principles of natural justice.
4. Learned counsel for the petitioner further submits that
when the petitioner was not provided the copy of enquiry report,
which was the basis of her termination in which she was not even
called for, she asked for the copy under the R.T.I. Act and the
concerned authority has provided the said report in which the
petitioner was exonerated; as such, even otherwise; the order of
termination should be quashed and set aside.
5. Learned counsel for the respondent-State fairly admits
that the order passed in the case of Neelam Kumari (supra) is
squarely applicable in the instant case; accordingly, similar order
may be passed in this case in the line of the aforesaid order.
6. Having heard learned counsels for the parties and after
going through the documents available on record and also the
order passed in the case of Neelam Kumari (supra), it appears
that in the said case also the order of removal was stigmatic in
nature and this court after dealing several judgments have passed
following orders:
"6. Having regard to the aforesaid facts and circumstances and after
going through the impugned letter, it is evident that there is a complete non-
application of mind in passing the impugned order of termination by the
disciplinary authority, inasmuch as, the grounds taken by the petitioner in
reply to the show-cause notice has not at all been considered.
It is also relevant to indicate that the ground of lapse of agreement which
has been taken in the counter affidavit cannot be accepted by this Court in
view of the settled proposition laid down in "ABL International v. Export
Credit Guarantee Corporation of India" reported in (2004) 3 SCC 553
wherein it has been held that the State should act fairly.
7. In the instant case, after perusing the impugned order of
termination, I don't have any hesitation in holding that the impugned order
is stigmatic in nature. Thus, a full-fledged enquiry was necessary. However,
from record it appears that neither any full-fledged enquiry took place nor
grounds for defence of the petitioner have been considered by the
respondents. In this regard a reference may be taken from the case of "Dr.
Vijayakumaran C.P.V" (supra) wherein the Hon'ble Apex Court at
paragraph nos. 10 to 14 held as under:
"10. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of
Medical Sciences [Pavanendra Narayan Verma v. Sanjay Gandhi
PGI of Medical Sciences, (2002) 1 SCC 520 : 2002 SCC (L&S) 170] ,
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. 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 [ECIL v. B.
Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184] . 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.
14. Accordingly, this appeal partly succeeds. We set aside the
impugned judgments and orders dated 30-1-2018 [Vijayakumaran
C.P.V. v. Central University of Kerala, 2018 SCC OnLine Ker 22418]
and 20-2-2018 [Vijayakumaran C.P.V. v. Central University of
Kerala, 2018 SCC OnLine Ker 22417] passed by the High Court
including the order of termination dated 30- 11-2017 issued under
the signatures of the Vice-Chancellor of Respondent 1 University;
and instead direct reinstatement of the appellant and leave the
question regarding back wages, placing him under suspension and
initiating departmental or regular inquiry as per the service rules, to
be taken forward by the authority concerned in accordance with
law.
Emphasis Supplied"
8. As stated hereinabove, the order of termination is stigmatic in
nature; as such, the impugned order requires interference on this score
alone.
The petitioner has also claimed the ground of parity and referred to
in paragraph no. 3 of the supplementary affidavit and submits that in
the Garhwa district fourteen persons working on contract basis were
terminated from service on certain charges but they have been
reinstated vide order dated 02.03.2023 and petitioner is similarly
situated with those employees; as such she may also be reinstated.
This averment has not been denied by the respondents either in reply
to the supplementary affidavit or during course of argument.
It is not out of place to indicate here that the petitioner was
appointed in the year 2006 by way of an agreement and continued till
the year 2022; as such, the ground taken in the counter affidavit does
not have any legs to stand in the eye of law because the respondents
themselves continued the petitioner in the service.
9. Having regard to the aforesaid discussions, the impugned letter of
termination dated 18.11.2022, is hereby, quashed and set aside. The
respondents are directed to reinstate the petitioner as early as
possible but not beyond the period of one week from the date of
receipt/production of copy of this order.
However, the respondents would be at liberty to initiate a
fullfledged enquiry in the light of the judgment passed in "Dr.
Vijayakumaran C.P.V" (supra) and pass an appropriate order after
following the principle of natural justice."
7. Since both the counsels fairly submitted before this
Court that the instant case may be disposed of in the line of the
order passed in the case of Neelam Kumari (supra); accordingly,
the instant writ application, is hereby, disposed of by quashing
and setting aside the impugned order dated 15.12.2023
(Annexure-10) and the letter of communication dated 20.12.2023
(Annexure-10/A).
The respondents are directed to reinstate the petitioner
as early as possible, but not beyond a period of two weeks from
the date of receipt/production of copy of this order.
However, the respondents would be at liberty to initiate
a full-fledged enquiry in the light of the judgment passed in the
case of Dr. Vijayakumaran C.P.V. (supra) and pass an
appropriate order after following principles of natural justice.
8. Accordingly, the instant writ application stands
allowed.
(Deepak Roshan, J.)
vikas/-
