Madhya Pradesh High Court
Sanjay Jain vs The State Of Madhya Pradesh on 12 July, 2021
Author: Sujoy Paul
1 W.A. No.478/2021
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Case No. WA No.478/2021
Parties Name Sanjay Jain
Vs.
The State of MP & Ors.
Date of Order 12/07/21
Bench Constituted Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Order passed by Justice Sujoy Paul
Whether approved for Yes
reporting
Name of counsels for Ms. Deepika Rathi, learned counsel
parties for the appellant.
Shri Shrey Raj Saxena, learned Dy.
Advocate General for the
respondents/State.
Law Point *Service Law-Clause 22 of the
Contract-Deeming provision of
termination on remaining absent for
more than one month-The principles
of natural justice must be read into
the provision. The Clause-22 is
interpreted by taking into account the
similar provisions of standing orders
etc.
*Fair Play and Reasonableness-The
procedure adopted by employer must
be just fair and reasonable. Moreso
when its impact is on the right of
livelihood of a person.
*Validity of order-Judicial Review-
The validity of an order is to be
judged on the basis of the reasons
mentioned in the impugned order.
Reasons cannot be supplemented by
way of filing return in the Court.
*Natural Justice-Any order which
entail civil consequences could be
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passed only by following the
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2 W.A. No.478/2021
principles of natural justice.
*Backwages/Consequential
Benefits-Action of termination is
disapproved, but liberty is reserved to
the employer to proceed against the
petitioner within stipulated time,
failing which, employer shall be
liable to pay full backwages and other
consequential benefits. If inquiry is
conducted and order is passed, the
grant of backwages and other benefits
will depend on the outcome of the
inquiry/action.
Significant Paragraph 11 to 24
Numbers
ORDER
(Passed on this 12th day of July, 2021)
Sujoy Paul, J. :
This intra-court appeal assails the order dated 10/02/2021
passed in WP No.2250/2021 whereby writ petition filed by appellant
was dismissed by holding that as per Clause-22 of the Contract, his
services are deemed to have been terminated because he remained
absent for a period of one month.
2) The appellant was appointed as Sub-Engineer by order dated
11/10/2006. The appellant was transferred by order dated 28/07/2016
from Janpad Panchayat - Nalchha to Janpad Panchayat - Tirala. The
case of petitioner is that despite his entitlement and directions of
higher authorities, the salary of appellant was stopped on the ground
that his name is not reflected in the relevant departmental portal. The
appellant being aggrieved with this served a legal notice, approached
the authorities from pillar to post including the Human Rights
Commission, but when such efforts could not fetch any result, filed
WP No.2250/2021.
3) The appellant called in question the legality, validity and
propriety of the order dated 03/09/2019 (Annexure P/1) whereby in
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reply to the legal notice sent by the appellant, the Department
informed him that since appellant has tendered resignation, the
question of taking work from him and payment of salary does not
arise. The specific case of petitioner before the Writ Court was that i)
petitioner has never tendered resignation, ii) there was no willful
absence on the part of appellant. Indeed, the Department is not
permitting him to work and consequently not paying him salary.
4) Ms. Deepika Rathi, learned counsel for appellant submits that
the impugned order (Annexure P/1) nowhere shows that Clause-22 of
Contract was pressed into service by the department and appellant
was deemed to be terminated by operation of Clause 22. Indeed, it
assigns a different reason i.e. resignation tendered by the petitioner.
No resignation letter could be produced before the writ Court.
Petitioner categorically stated that he never tendered resignation.
5) Furthermore, it is contended that the inquiry report dated
01.03.2018 (Annexure P/9) shows that the controlling authority of
petitioner has not furnished any information to the inquiry officer
regarding resignation submitted by petitioner. The conclusion of
inquiry report shows that it was clearly established that factum of
tendering resignation by appellant is not at all established.
6) The stand of petitioner is that he was all along willing to
perform his duties, but was prevented to do so for the reasons
attributable to the respondents. The reliance is placed on the order
dated 18.03.2015 passed in WP No.20952/2012 (Amit Chandra Vs.
State of MP) and another order dated 04.07.2013 passed in WP
No.6937/2013 (Rahul Jain vs. State of MP & Ors.).
7) Lastly, it is urged that appellant cannot be said to be
unauthorizedly absent for one month in the factual backdrop of this
matter and no deeming provision can be applied without giving
opportunity to the appellant.
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8) Shri S.R Saxena, learned Dy. AG supported the impugned order
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by contending that Clause 22 contains a deeming provision because
of which appellant's services stood automatically terminated after
absence of one month. No fault can be found in the order of writ
Court.
9) No other point is pressed by learned counsel for the parties.
10) We have heard the parties at length and perused the record.
11) The singular reason assigned in the impugned order dated
03.09.2019 is that appellant has tendered resignation. This finding is
specifically controverted by the appellant and his stand that he has not
tendered resignation could not be demolished by filing copy of
resignation. Interestingly, in the inquiry report dated 01.03.2018
(Annexure P/9), it is recorded as under:-
fu"d"kZ%&
^^Jh lat; tSu lafonk mi;a=h tuin iapk;r ukyNk tks ftyk
iz'kklu ds }kjk iz'kkldh; vko';drk ds v/khu tuin iapk;r frjyk
esa dk;Z dj jgs gS] ds }kjk ekuuh; ekuo vf/kdkj vk;ksx e-iz- Hkksiky
dks dh xbZ f'kdk;r ds laca/k esa lacaf/krksa ds fyf[kr dFku vfHkfyf[kr
dj leh{kk dh xbZ leh{kk ds nkSjku bUgsa R;kx&i= fn;s tkus ,oa
lsDVj ifjorZu fd;s tkus ds rF; izekf.kr ugh ik;s x;sA yafcr osru
Hkqxrku ds laca/k esa rRdkyhu eq[; dk;Zikyu vf/kdkjh tuin iapk;r
frjyk Jh ek/kopk;Z ds dFku vuqlkj muds dk;Zdky esa budh
mifLFkr vof/k dk osru ugh jksds tkus ds fyf[kr dFku ds vuqdze esa
osru ugh jksdk x;k gSA mijksDr rF;ksa ds vk/kkj ij f'kdk;r izekf.kr
ugh ikbZ xbZA Jh lat; tSu fnukad 03-07-2017 ls orZeku rd fcuk
lwpuk ds drZO; ls vuqifLFkr gSA
mijksDr tkWp miyC/k leLr vfHkys[k ,oa lHkh rF;ksa ds vk/kkj ij
dh xbZA tkWp izfrosnu vko';d dk;Zokgh gsrq vkidh vksj lknj izsf"kr
gSA^^
12) Thus, factum of resignation could not be established by the
respondents. Report further shows that controlling authority of
petitioner did not furnish necessary information regarding petitioner's
absence. Relevant portion reads thus:
^^Jh lat; tSu ds }kjk vius ljnkjiqj ds dk;Zdky ds cdk;k
,sfj;j] Ekkg vizSy 2016 ,oa ebZ&twu 2017 dk osru Hkqxrku u fd;s
tkus dk mYys[k fd;k x;k gSA bl laca/k esa eq[; dk;Zikyu vf/kdkjh
tuin iapk;r ljnkjiqj dks dk;kZy;hu i= dzekad 373 fnukad 08-02-
2018 ,oa i=- dzekad 572 fnukad 24-02-2018 ds }kjk yafcr ,sfj;j ds
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laca/k esa izfrosnu izLrqr fd;s tkus gsrq fy[kk x;k fdUrq vuds }kjk
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dksbZ izfrosnu izLrqr ugha fd;k x;kA
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Jh lat; tSu ds }kjk osru Hkqxrku u fd;k tkus dk mYys[k
fd;k x;k gSA bl laca/k esa v/kksgLrk{kjdrkZ }kjk eq[; dk;Zikyu
vf/kdkjh tuin iapk;r ukyNk dks i= dzekad 373 fnukad 08-02-2018
,oa i= dzekad 570 fnukad 24-02-2018 ds }kjk yafcr osru dk
fu;ekuqlkj fujkdj.k fd;s tksus gsrq fy[krs gq, izfrosnu izLrqr fd;s
tkus ds fy, fy[kk x;k] fdUrq eq[; dk;Zikyu vf/kdkjh tuin
iapk;r ukyNk ds }kjk v|ru dksbZ izfrosnu izLrqr ugha fd;k x;kA
Jh lat; tSu ds }kjk R;kx&i= fn;s tkus ds laca/k esa eq[;
dk;Zikyu vf/kdkjh tuin iapk;r frjyk dks dk;kZy;hu i= dzekad
480 fnukad 20-02-2018 ds }kjk Jh lat; tSu tuin iapk;r frjyk
esa dc ls vuqifLFkr gS] D;k Jh tSu }kjk fdlh izdkj dk vkosnu
vFkok R;kx i= izLrqr fd;k x;k gS] ds laca/k esa izfrosnu izLrqr fd;s
tkus gsrq fy[k x;k] fdUrq eq[; dk;Zikyu vf/kdkjh tuin iapk;r
frjyk ls dksbZ izfrosnu vkt fnukad rd izkIr ugha gqvkA^^
This shows that conclusion drawn by inquiring authority regarding
petitioner's absence is not founded upon any relevant information
obtained from the controlling authority. Thus, inquiry report is
cryptic, contains contradictory findings about absence and could not
have been a reason to invoke Clause 22 of the Contract. Moreso,
when petitioner was not informed about any allegation against him.
13) This is trite that validity of an order must be examined on the
grounds mentioned therein and it cannot be substituted and supported
by assigning different reasons by filing counter affidavit in the Court.
The constitution Bench of Supreme Court in (1978) 1 SCC 405
(Mohinder Singh Gill v. Chief Election Commr.) opined as under :-
"8. The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise. Otherwise, an order
bad in the beginning may, by the time it comes to court
on account of a challenge, get validated by additional
grounds later brought out. We may here draw attention to
the observations of Bose, J. in Gordhandas Bhanji
[Commr. of Police, Bombay v. Gordhandas Bhanji, AIR
1952 SC 16] :
"Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
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subsequently given by the officer making the order of
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what he meant, or of what was in his mind, or what he
intended to do. Public orders made by public authorities
are meant to have public effect and are intended to affect
the actings and conduct of those to whom they are
addressed and must be construed objectively with
reference to the language used in the order itself."
Orders are not like old wine becoming better as they
grow older."
(Emphasis Supplied)
14) At the cost of repetition, in the impugned order, the respondents
have not taken assistance of Clause 22 of the contract. However, they
took a different stand before the learned Single Judge. Clause 22
reads as under:-
¼22½ ^^p;fur mEehnokj] mldh inLFkkiuk ds LFkku ij dk;ZHkkj xzg.k
djus dh frfFk ls lafonk esa ekuk tkosxk] ;fn lafonk ij fu;qDr dksbZ
O;fDr fcuk fdlh fof"k"V dkj.k vkSj fcuk fdlh lwpuk ds vius drZO;
ls 01 ekg ls vf/kd ds fy, vuqifLFkr jgrk gS] rks mldh lafonk
fu;qfDr ,slh vuqifLFkfr dh frfFk ls Lor% lekIr ekuh tk;sxh rFkk
mldh dafMdk 9 esa n'kZkbZ xbZ cka.M jkf'k jktlkr gks tkosxhA^^
(Emphasis Supplied)
15) The similar provisions contained in standing orders/rules
became subject matter of consideration in catena of judgments. In
(1993) 3 SCC 259 (D.K. Yadav v. J.M.A. Industries Ltd.), after
considering the relevant standing order which talks about
automatic/deemed loss of lien, the Apex Court opined as under:-
"8. The cardinal point that has to be borne in mind, in
every case, is whether the person concerned should have
a reasonable opportunity of presenting his case and the
authority should act fairly, justly, reasonably and
impartially. It is not so much to act judicially but is to act
fairly, namely, the procedure adopted must be just, fair
and reasonable in the particular circumstances of the
case. In other words application of the principles of
natural justice that no man should be condemned unheard
intends to prevent the authority from acting arbitrarily
affecting the rights of the concerned person.
9. It is a fundamental rule of law that no decision must be
taken which will affect the right of any person without
first being informed of the case and giving him/her an
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opportunity of putting forward his/her case. An order
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involving civil consequences must be made consistently
with the rules of natural justice. In Mohinder Singh
Gill v. Chief Election Commissioner [(1978) 1 SCC 405 :
(1978) 2 SCR 272, 308-F] the Constitution Bench held
that 'civil consequences' covers infraction of not merely
property or personal right but of civil liberties, material
deprivations and non-pecuniary damages. In its
comprehensive connotation every thing that affects a
citizen in his civil life inflicts a civil
consequence. Black's Law Dictionary, 4th edn., page
1487 defined civil rights are such as belong to every
citizen of the state or country ... they include ... rights
capable of being enforced or redressed in a civil
action.... In State of Orissa v. (Miss) Binapani
Dei [(1967) 2 SCR 625 : AIR 1967 SC 1269 : (1967) 2
LLJ 266] this Court held that even an administrative
order which involves civil consequences must be made
consistently with the rules of natural justice. The person
concerned must be informed of the case, the evidence in
support thereof supplied and must be given a fair
opportunity to meet the case before an adverse decision is
taken. Since no such opportunity was given it was held
that superannuation was in violation of principles of
natural justice.
12. Therefore, fair play in action requires that the
procedure adopted must be just, fair and reasonable. The
manner of exercise of the power and its impact on the
rights of the person affected would be in conformity with
the principles of natural justice. Article 21 clubs life with
liberty, dignity of person with means of livelihood
without which the glorious content of dignity of person
would be reduced to animal existence. When it is
interpreted that the colour and content of procedure
established by law must be in conformity with the
minimum fairness and processual justice, it would relieve
legislative callousness despising opportunity of being
heard and fair opportunities of defence. Article 14 has a
pervasive processual potency and versatile quality,
equalitarian in its soul and allergic to discriminatory
dictates. Equality is the antithesis of arbitrariness. It is,
thereby, conclusively held by this Court that the
principles of natural justice are part of Article 14 and the
procedure prescribed by law must be just, fair and
reasonable.
15. In this case admittedly no opportunity was given to
the appellant and no inquiry was held. The appellant's
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plea put forth at the earliest was that despite his reporting
to duty on December 3, 1980 and on all subsequent days
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and readiness to join duty he was prevented from
reporting to duty, nor was he permitted to sign the
attendance register. The Tribunal did not record any
conclusive finding in this behalf. It concluded that the
management had power under Clause 13 of the
Certified Standing Orders to terminate with the
service of the appellant. Therefore, we hold that the
principles of natural justice must be read into the
Standing Order No. 13(2)(iv). Otherwise it would
become arbitrary, unjust and unfair violating Article
14. When so read the impugned action is violative of
the principles of natural justice."
(Emphasis Supplied)
16) The principle laid down in DK Yadav (supra) is consistently
followed by Supreme Court in the cases as follows.
17) In (2002) 6 SCC 552 (Lakshmi Precision Screws Ltd. v. Ram
Bahagat), the Apex Court held as under:-
"Having regard to the well-settled principle of law as
in Yadav [D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3
SCC 259 : 1993 SCC (L&S) 723] the decision to
terminate by reason of a presumption as noticed above,
we cannot but lend concurrence to the conclusion of the
High Court that the action is purely and surely arbitrary
in nature. Arbitrariness is an antithesis to rule of law,
equity, fair play and justice -- contract of employment
there may be but it cannot be devoid of the basic
principles of the concept of justice. Justice-oriented
approach as is the present trend in Indian jurisprudence
shall have to read as an inbuilt requirement of the basic
of concept of justice, to wit, the doctrine of natural
justice, fairness, equality and rule of law. The letter dated
17th October cannot by any stretch be treated to be an
opportunity since it is only on the fourth day that such a
letter was sent -- the action of the appellant herein stands
out to be devoid of any justification, neither it depicts
acceptability of the doctrine of natural justice or the
concept of fairness -- arbitrariness is writ large and we
confirm the finding of the High Court as also that of the
learned trial Judge and the Tribunal as regards the issue
as noticed above."
(Emphasis Supplied)
18) In (2006) 11 SCC 42 (V.C., Banaras Hindu University v.
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Shrikant), the Apex Court held as under:-
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"52. The question came up for consideration before a
three-Judge Bench decision of this Court in D.K.
Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC 259 : 1993
SCC (L&S) 723] wherein emphasising the requirements
to comply with the principles of natural justice while
terminating the services of the employees on the
touchstone of Article 21 of the Constitution of India; it
was held that not only the procedure prescribed for
depriving a person of his livelihood must meet the
challenge of Article 14 but also the law which will be
liable to be decided on the anvil thereof.
53. Here again, this Court opined that Article 14 requires
that the procedure adopted must be just, fair and
reasonable. It was furthermore held: (D.K. Yadav
case [(1993) 3 SCC 259 : 1993 SCC (L&S) 723] , SCC p.
269, para 12"
(Emphasis Supplied)
19) In (2009) 5 SCC 567 (Central Bank of India vs. Vijay Krishna
Neema), the Apex Court opined that:
"57. The matter may, however, be different in a case
where despite having been given an opportunity of
hearing, explanation regarding his unauthorised absence
is not forthcoming or despite giving him an opportunity
to join his duty, he fails to do so, as was the case
in Punjab & Sind Bank v. Sakattar Singh [(2001) 1 SCC
214 : 2001 SCC (L&S) 209] .
20. Yet again in U.P. State Bridge Corpn. Ltd. v. U.P.
Rajya Setu Nigam S. Karamchari Sangh [(2004) 4 SCC
268 : 2004 SCC (L&S) 637] , it was held as under: (SCC
p. 280, paras 23-24)
"23. D.K. Yadav [(1993) 3 SCC 259 : 1993 SCC (L&S)
723] is an authority for the proposition that the
principles of natural justice would have to be read in
the standing orders. That was a case where there was a
standing order similar to CSO L-2.12 except that 8 days'
margin was granted within which the workman was
required to return and satisfactorily explain the reasons
for his absence or inability to return after the expiry of
leave. This view was reiterated in the later decision of
this Court in Lakshmi Precision Screws Ltd. v. Ram
Bahagat [(2002) 6 SCC 552 : 2002 SCC (L&S) 926]
where it was held that the element of natural justice
was an inbuilt requirement of the standing orders."
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(Emphasis Supplied)
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20) Reference may be made to (2013) 4 SCC 301 (Nirmala J.
Jhala vs. State of Gujarat), the Apex Court held as under:-
"Natural justice is an inbuilt and inseparable ingredient of
fairness and reasonableness. Strict adherence to the
principle is required, whenever civil consequences follow
up, as a result of the order passed. Natural justice is a
universal justice. In certain factual circumstances even
non-observance of the rule will itself result in prejudice.
Thus, this principle is of supreme importance. (Vide S.L.
Kapoor v. Jagmohan [(1980) 4 SCC 379 : AIR 1981 SC
136] , D.K. Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC
259 : 1993 SCC (L&S) 723] and Mohd. Yunus
Khan v. State of U.P. [(2010) 10 SCC 539 : (2011) 1 SCC
(L&S) 180])"
(Emphasis Supplied)
21) The common string in these judgments is that principles of
natural justice are inbuilt and needs be read into such provision like
Clause 22 in the instant case.
22) The importance of principles of natural justice need not be
emphasized. The Apex Court in 1990 2 SCC 746 (Neelima Misra Vs.
Harinder Kaur Paintala) held that any order which entails civil
consequences should be passed only after following the principles of
natural justice. The following quotes will establish the importance of
following the principles of natural justice:-
"Principles of natural justice are to some minds
burdensome but this price-a small price indeed-has to be
paid if we desire a society governed by the rule of law."
"........even God himself did not pass [a] sentence upon
Adam before he was called upon to make his defence.
Adam (says God), where art thou? Hast thou not eaten of
the tree whereof I commanded thee that thou shouldest
not eat?...."
(Emphasis Supplied)
The Apex Court in Radhy Shyam v. State of U.P., reported in
(2011) 5 SCC 553 followed the principle laid down in D.K. Yadav
(supra).
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23) The aforesaid analysis shows that learned Single Judge has
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committed an error of law in dismissing the petition based on a reason
which was not assigned in the impugned order (Annexure P/1). Even
if the ground founded upon Clause 22 above is taken into account,
deemed termination without following the principles of natural justice
cannot be countenanced. Moreso, in a case of this nature where
consistence stand of petitioner was that he made herculean efforts to
join, but respondents deprived him to perform the duties. Thus, the
impugned order of discontinuance/deemed termination cannot
sustain judicial scrutiny. Resultantly, such termination order is set
aside. The respondents shall reinstate the appellant within 30 days
from the date of receipt of this order. This order will not come in the
way of the respondents to take action against the appellant after
following the principles of natural justice. If they intend to take any
such action against the appellant, they may initiate the same within 60
days from today, failing which the right to proceed against the
appellant shall stand abated. The question of back wages etc. will
depend on the outcome of such action (if taken). In the event, no such
action is taken within the time limit aforesaid, the respondents shall
pay full back wages and other consequential benefits to the appellant
as if his services were never terminated. The order of writ Court dated
10.02.2021 is set aside.
24) The writ appeal is allowed.
(SUJOY PAUL) (ANIL VERMA)
JUDGE JUDGE
soumya
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