Rishiraj Kurmi vs The State Of Madhya Pradesh
2021 Latest Caselaw 4721 MP

                                          1

     Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)


              HIGH COURT OF MADHYA PRADESH:
                           BENCH AT GWALIOR
                         Writ Petition No.19397/2017
       Rishiraj Kurmi                                    ...PETITIONER

                                       Versus

       State of Madhya Pradesh & Others ...........RESPONDENTS

--------------------------------------------------------------------------------------

CORAM :

               Hon'ble Shri Justice Vishal Mishra

--------------------------------------------------------------------------------------

       Shri Prashant Sharma, learned counsel for the petitioner.

       Shri Vishal Tripathi, learned Panel Lawyer for the State.

--------------------------------------------------------------------------------------

Whether approved for reporting : NO


--------------------------------------------------------------------------------------

Reserved on :                 25.11.2020 28.10.2015
Date of decision :            26.08.2021

-----------------------------------------------------------------------------------

                                   ORDER

(26.08.2021)

With the consent of the parties, the matter is finally heard

through Video Conferencing.

The present petition under Article 226 of the Constitution of

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

India is being filed seeking following reliefs:-

"i. The impugned order annexure P/1 and P/2 may kindly be quashed.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case same may kindly be granted to the petitoner."

The present petition is being filed challenging the order dated

29.05.2017 passed by the respondents whereby the services of the

petitioner has been terminated. On appeal being made against the

aforesaid order, the same has been dismissed by the respondents-

department on 30.08.2017. Both the orders have put to challenge the

petition on the ground that the order is stigmatic and prior to passing

the termination order of the petitioner, no inquiry was conducted by the

authorities. It is alleged that the petitioner was serving the department

as Gram Rojgar Sahayak when the order impugned was passed.

Initially a notice was served on petitioner leaving allegation that there

was misappropriation of funds by the petitioner in construction of

toilets under Swachch Bharat Scheme. It was alleged that his amount

was not paid to beneficiaries and the person who were under recipient

of the amount was not the beneficiary. A show cause notice was issued

to the petitioner which is Annexure P/3 with respect to

misappropriation of funds under the Scheme. The reply to the show

cause notice was submitted by the petitioner. Thereafter, the impugned

order has been passed without providing any opportunity of hearing

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

and without holding any inquiry with respect to the charges lebelled

against the petitioner. It is submitted that the order is stigmatic in nature

as it is lebelling allegations regarding misappropriation of funds

therefore, in terms of the settled legal proposition of law in the case of

O.K. Bhardwaj wherein it is held by the Hon'ble Supreme Court that

even a case of contractual employees if the allegations are denied by

the petitioner then inquiry is required to be conducted prior to

terminating the services. He has further relied upon the judgment

passed by the Coordinate Bench of this Court in the case of

Ramcharan Vs. State of MP and Others in W.P.No.16572/2014 vide

order dated 02.08.2017 and in the case of Sourabh Singh Rathore

Vs. State of M.P. and Others in W.P.No.29228/2018 vide order

dated 24.09.2019 wherein the aforesaid controversy is put to rest. It is

argued that the facts of the petitioner's case as well as the aforesaid

cases are identical to each other and therefore, the same is applicable to

the case of the petitioner. In such circumstances, the order impugned is

unsustainable and deserves to be set aside and quashed.

Per contra, learned counsel appearing on behalf of the State by

filing the return has denied the petition's averment and has argued that

the entire action has been taken only on the basis of inspection carried

out by the authorities. Initially there was an inspection by the

Panchayat Inspector in terms of letter dated 15.03.2017 issued by the

C.E.O. Janpad Panchayat, Ganjbasoda. The report is filed as Annexure

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

R/1. The said finding was verified by the team comprising of two

officers and spot inspection report and verification report is as

Annexure R-2. It is submitted that on verification, it was found that in

one house of Gopal Kurmi without construction of toilets the funds are

disbursed. Without construction of toilet in the house of Harbai the

funds are disbursed. Toilet in the house of Jeevanlal was of

sub-standard quality. The well under the Manrega Scheme was found to

be excavated by a machine. The services were totally contractual in

nature. As a show cause notice was issued to the petitioner and on the

spot verification the charges which have been lebelled against the

petitioner were found to be proved. There is no necessary of holding a

full fledged inquiry against the contract employee only an opinion as to

the employee following the terms of contract is required to be seen.

There is any violation of terms of the contract then they are having a

jurisdiction to terminate the contract. They have prayed for dismissal of

the writ petition.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that the petitioner who

was engaged in service on the post of Gram Rozgar Sahayak has been

terminated. Prior to termination of his service a show cause notice was

issued to him. The services have been terminated leving allegations

against the petitioners regarding misappropriation of funds and the

construction made was of low quality. Although the reply was

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

submitted by the petitioner to the notice but no inquiry was conducted

only on the basis of the spot inspection and under verification it is

submitted by the inspecting team that the order has been passed. It is

argued that even in the cases of minor penalities, if the charges are

denied then inquiry should be conducted. It is a settled proposition that

even a contractual employee is required to be granted opportunity of

hearing if the termination order is stigmatic in nature. The Hon'ble

Supreme Court in the case of O.K. Bhardwaj Vs. Union of India and

others as reported in 2001 (9) SCC 180 has held has under:-

''3...................Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.'' (9) Rules 16 of the CCA Rules, 1966 reads as under:-

''16.Procedure for imposing minor penalties: (1) Subject to the provisions of subn rule (3) of Rule 15, no order imposing on a Government servant any of the penalties specified in clauses (i) to (iv) of Rule 10 and Rule 11 shall be made except after-

(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in sub rules (3) to (23) of Rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;

(c) taking the representation, if any, submitted

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;

(d) recording a finding on each imputation of misconduct or misbehaviour; and

(e) consulting the commission where such consultation is necessary. [(1-a) Notwithstanding anything contained in clause

(b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government Servant under clause

(a) of that sub-rule to withhold increments of pay of Stagnation Allowance and such withholding or increments of pay or Stagnation Allowance is likely to effect adversely the amount of pension payable to the Government Servant or to withhold increments of pay or Stagnation allowance for a period exceeding three years of to withhold increments of pay or Stagnation allowance with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty.] (2) The record of the proceedings in such cases shall include-

(i) a copy of the intimation to the Government servant of the proposal to take action against him;

(ii) a copy of the statement of imputation of misconduct or misbehaviour delivered to him;

(iii) his representation, if any;

(iv) the evidence produced during the inquiry;

(v) the advice of the commission, if /any;

(vi) the findings on each imputation of misconduct or misbehaviour; and

(vii) the orders on the case together with the reasons therefor.'' (10) Thus, from the plain reading of Rule 16(1)(b) of CCA Rules, 1966, it is clear that where the disciplinary authority is of the opinion that the said enquiry is necessary, then the minor penalty can be imposed by holding an enquiry under sub-rules(3) to (23) of Rule 14 of CCA Rules, 1966. Rule 16(1)(d) of CCA Rules, 1966 requires a finding on each

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

imputation of misconduct or misbehaviour. In the present case, except by mentioning that the reply submitted by the petitioner is not satisfactory, no findings have been recorded by Collector, Morena. (11) Accordingly, this Court is of the considered opinion that the impugned order dated 18th December, 2018 (Annexure P1) passed by the Commissioner, Chambal Division, Morena in Case No.288/2017-18/Appeal (CCA) and the impugned order dated 7th July, 2018 (Annexure P2) passed by the Collector, District Morena in Case No. MC2/Exam/2018 are not in accordance with the provisions of Rule 16 of CCA Rules, 1966 as well as in accordance with law laid down by the Supreme Court in the case of O.K. Bhardwaj (supra). Accordingly, both the orders are set aside. The respondents/ authorities are granted liberty that if they so desire, they can proceed after issuing the charge sheet to the petitioner.

(12) With aforesaid liberty, this petition is finally disposed of.

It is seen from the return submitted by the authorities that they have

admitted the fact that the petitioner's service was contractual in nature and

they were entered into agreement with the authorities. The contract for

personal service is not forcible and no proceedings lies for enforcement of

contract. The aforesaid aspect was considered by the Hon'ble Supreme

Court in the O.K. Bhardwaj (supra).

A coordinate Bench of this court while deciding the bunch of

petitions in the case of Ramcharan (Supra) (W.P.No.16572 of 2014 and

other petitions) as aforesaid, at Main Seat Jabalpur has held as under :

"11- After hearing learned counsel for the parties and on perusal of the undisputed facts of the present cases, it is not in dispute that the petitioners were engaged either as Gram Rojgar Sahayak or Sub-

Engineers or Assistant Wardens under the Scheme prepared by Madhya Pradesh Rajya Rojgar Guaranteee Parishad and as per Clause-16, how the

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

services of those persons can be terminated, has not been disputed. 12- On perusal of Clause-16 of Madhya Pradesh Rajya Rojgar Guarantee Parishad, it is apparent that in case of irregularities, dereliction in discharge of the duties and culpable negligence on proving their services may be terminated. However, the core question is how those allegations can be proved. As the petitioners are contract employees, therefore, for any allegation, an opportunity of hearing may be given to them. This opportunity would be at the stage when the fact finding inquiry is being prepared by the officers on imputation of the allegations against them or at the stage of show cause. If a person has been given an pportunity of hearing while preparing the fact finding inquiry and thereafter their services may be terminated giving a show cause notice to him.

13- In the present cases, the respondents have received a fact finding inquiry report against the petitioners without giving an opportunity to defend on the allegation at the time of preparation of the inquiry report and now by issuing a show cause notice, the order of termination has been passed. The aforesaid recourse cannot be recognized in view of the judgment rendered by this Court in the case of Rahul Tripathi (supra) and also in violation of principle of natural justice.

14- Insofar as the judgment of Rajendra Prasad Bakoriya (supra) is concerned; it is a case wherein the order of termination is passed invoking condition No.6 of the appointment order. However, in the said context, this Court has dealt with the issue of contract employment referring the judgment of S.N. Goyal (supra). It is to be noted here that it is a case wherein the imputation of allegation of irregularities or committing misconduct has been alleged to which inquiry ought to be conducted. It is explained that the said inquiry may not be akin to the inquiry contemplated for the regular employees as specified under the Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966 but the principle of natural justice ought to be observed to the misconduct, which is alleged against them, affording an opportunity at the time of preparing the foundation for their termination. It is a case wherein to prepare the foundation of termination, the

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

opportunity of hearing has not been given to the petitioners, therefore, relying upon the judgment rendered in the case of Rahul Tripathi (supra), these appear to be the fit cases wherein the order of termination may be quashed.

15- At this stage, the issue regarding completion of the contract period by the petitioners during the tenure of the stay order has been pressed upon by learned counsel for the respondents. In this regard, learned counsel for the petitioners has referred a Circular dated 06.07.2013 issued by the Government of Madhya Pradesh, Ministry of Panchayat & Gramin Vikas Vibhag, Bhopal and contended that now all the Gram Rojgar Sahayak have been declared as Assistant Secretaries.

16- In this regard, it is suffice to observe here that the officers of the State Governments are at liberty to take recourse of law as permissible to them considering the Circular of the department or if they do not want to continue, it is with them to take a decision. This Court is having nothing to say on the said issue because the said issue is not res integra in the relief as prayed for in these petitions.

17- According, all these petitions succeed and are hereby allowed and the order of termination passed against the petitioners stand quashed. Except the petitioner of Writ Petition No. No.7684/2017, the other persons are continuing on the basis of the stay order. However, they be continued subject to decision by the authorities and the petitioner of Writ Petition No.7684/2017 be also reinstated if he is not in service. However, it is open to the respondents to take recourse of law in view of the foregoing observations and as per the procedure prescribed under the Scheme prepared by the Madhya Pradesh Rajya Rojgar Guarantee Parishad".

The impugned order is stigmatic in nature and as the respondents

have admitted the fact that no inquiry was conducted prior to passing

termination order of the petitioner. In such circumstances, the

termination order has no legs to stand. The termination order dated

29.05.2017 (Annexure P/2) passed by the Collector, District Vidisha is

Writ Petition No.19397/2017 (Rishiraj Kurmi Vs. State of M.P. and Others)

hereby quashed. The matter is relegated back to the authorities to

reconsider the case of the petitioner with respect to termination and

after providing an opportunity of hearing and inquiry into the matter

may pass a fresh order. The aforesaid exercise be completed

expeditiously.

With the aforesaid observation, the petition is allowed and

stands disposed of.

E-copy of this order be provided to the petitioner and it is made

clear that E-copy of this order shall be treated as certified copy for

practical purposes in respect of this order.

                                                       (Vishal Mishra)
AK/-                                                       Judge
       ANAND KUMAR
       2021.08.27
       11:00:19 +05'30'