Rakesh Kumar Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 691 MP

                                                   WP No.18454/2020

                                (1)


     HIGH COURT OF MADHYA PRADESH, PRINCIPAL
                SEAT AT JABALPUR

Case No.                              W.P. No.18454/2020
Parties Name                         Rakesh Kumar Yadav
                                              vs.
                                    State of M.P. and others
Date of Order                  15/03/2021
Bench Constituted              Single Bench:
                               Justice Prakash Shrivastava

Order delivered by             Justice Prakash Shrivastava
Whether approved for           No
reporting
Name of counsels for           Shri R.N. Singh, learned senior
parties                        counsel with Shri Akshat Arjariya,
                               Advocate for the petitioner.
                               Shri Rahul Deshmukh, learned
                               Panel Lawyer for the respondents.
Law laid down                                  -
Significant paragraph                          -
numbers
                          ORDER

15.03.2021

By this petition, the petitioner has challenged the order dated 24.01.2019 whereby the CEO Janpad Panchayat has terminated the petitioner's services as Contract Gram Rojgar Sahayak. The petitioner has also challenged the order dated 28.02.2019 whereby the CEO and Additional District Programme Coordinator, Janpad Panchayat, Rewa has dismissed the appeal and order dated 04.11.2020 passed by the Commissioner dismissing the second appeal.

2. The brief facts are that the petitioner was appointed as Gram Rojgar Sahayak on contract vide order dated 31.10.2014 and contract of appointment was also executed. Against the WP No.18454/2020

petitioner, offence under Section 328, 34 of the IPC in Crime No.477/2017 in Police Station Mauganj was registered and the petitioner was granted bail by order dated 06.02.2019 and thereafter his services were terminated by order dated 28.02.2019. The termination has been affirmed in the appeal.

3. Learned counsel appearing for the petitioner submits that the petitioner is a contract employee, therefore, his services will be governed by the contract of appointment and not by the circulars issued by the State from time to time. He further submitted that the impugned order has been passed without application of mind on incorrect premises and the principles of natural justice have been violated and in similar circumstances, the Coordinate Bench has allowed WP No.6562/2019 (Smt. Neelam Pandey vs. State of M.P.) by the order dated 29.1.2020, WP No.10491/2017 (Jintendra Singh Parmar Vs. State of M.P.) by order dated 25.07.2017, WP No.20536/2017 (Pratima Aathnere vs. State of M.P.) by order dated 04.12.2017 and WP No.12831/2019 (Brajesh Kumar Verma vs. State of M.P). by order dated 20.09.2019.

4. Learned counsel for the respondents has opposed the petition by submitting that in terms of clause 16 of the circular dated 21.02.2018 Annexure R/1, no notice and no opportunity of hearing is required and since the petitioner was involved in the criminal case, therefore, his services have been terminated and that in the judgment of the High Court which the petitioner is relied upon the circular dated 21.02.2018 has not been considered. He has further submitted that the conditions of appointment are required to be considered alongwith the circular issued by the State from time to time.

WP No.18454/2020

5. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that against the petitioner Crime No.477/2017 under Section 328, 34 of the IPC was registered and in that case he was arrested on 05.02.2019 and granted bail on 06.02.2019. It is undisputed before this Court that the petitioner has been acquitted of the said offence by the judgment dated 28.06.2019 passed in Sessions Case No.137/2019 by the Ist Additional Sessions Judge, Mauganj, District Rewa by giving benefit of doubt. The record reflects that though the petitioner was given the notice dated 28.01.2019 Annexure P/2 but that was given under incorrect premises that the bail application of the petitioner was rejected and in that notice there was no mention about the proposed action of the termination. Hence, the issuance of the said notice cannot be said to be due compliance of natural justice.

6. The record reflects that though the petitioner's services have been terminated by order dated 24.01.2019. The said order has been passed on incorrect premises that the petitioner was convicted in the criminal case. The termination order dated 24.01.2019 reads as under :

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vkns'k guqeuk fnukad 24-01-2019 Ø[email protected]@[email protected]@[email protected]] xzke iapk;r xsnqjgV ds xzke jkstxkj lgk;d jkds'k ;kno ij Fkkuk ,o aU;k;ky; esa vkijkf/kd izdj.k ntZ gksus ls lacaf/kr lwpuk laKku esa vkus mijkar lacaf/kr thvkj,l dks i= Ø-

[email protected]@[email protected] guqeuk fnukad 18-01-2019 uksfV'k tkjh dj tckc pkgk x;k Fkk fdUrq lacaf/kr thvkj,l }kjk vkt fnukad rd u rks mifLFkr gqvk vkSj ugh dksbZ Hkh tckc izLrqr fd;k x;k A pwWfd U;k;ky; }kjk lacaf/kr WP No.18454/2020

ds fo:) vkijkf/kd izdj.k es alfyIr gksus ls lacaf/kr nk;j ;kfpdk ds Qslys esa jkds'k ;kno dks nks"kh djkj fn;k x;k gS] ,r,o ,slh fLFkfr esa jkds'k ;kno dk thvkj,l in ij cuk jguk xyr ,oa deZpkjh vkpj.k ds foijhr gSA blfy;s U;k;ky;hu vfHkys[kksa ,o avU; nLrkostksa ds vk/kkj ij jkds'k ;kno thvkj,l xsnqjgV dh lafonk lsok rRdky izHkko ls lekIr dh tkrh gSA vkns'k rRdky izHkko'khy gksaxkA eq[; dk;Zikyuvf/kdkjh tuiniapk;rguqeuk ftykjhok ¼e0iz0½ i`-Ø[email protected]@[email protected]@[email protected] guqeuk fnukad 24-01-2019 izfrfyfi& 1- vk;qDr egks- e0iz0 jkT; xzkeh.k jkstxkj xkjaVh ifj"kn Hkksiky dh vksj lknj lwpukFkZA 2- dysDVj egks- ftyk jhok dh vksj lknj lwpukFkZA 3- eq[; dk;Zikyuvf/kdkjhftykiapk;rjhok dh vksjlknjlwpukFkZA 4- ,[email protected],,[email protected] 'kk[kk t-ia- guqeukA 5- [email protected] xzke iapk;r xsnqjgV dh vksj lwpukFkZA

eq[; dk;Zikyuvf/kdkjh tuin iapk;r guqeuk ftykjhok ¼e0iz0½

A bare perusal of the above order reveals that the CEO has taken a decision to terminate the petitioner's services on incorrect premises that the petitioner was convicted in the criminal case whereas at that time the criminal case was pending and subsequently the petitioner has been acquitted. Hence, the very basis of passing the impugned termination order was faulty and the order suffers from total non-application of mind, hence it cannot be sustained. The Constitution Bench in the matter of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others reported in 1978 (1) SCC 405 has held as under:

"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 WP No.18454/2020

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:

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of 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."

7. The record reflects that the Co-ordinate Bench in the case of Smt. Neelu Pandey(supra) in the similar circumstances has held as under:

"8. This is trite law that validity of an order needs to be tested on the basis of reasons mentioned therein and it cannot be supported by assigning different reasons by way of filing reply and additional reply. A Constitution Bench of Supreme Court in Mohinder Singh Gill vs. Chief Election Commissioner (1978) 1 SCC 405 opined that the validity of an order of statutory authority is to be seen on the ground mentioned therein and it cannot be supported by assigning different and supplementary reasons by way of counter affidavit. The Apex Court said that the orders are not like old wine which will gather force with afflux of time. Applying this principle, impugned order cannot sustain judicial scrutiny.

9. Thus, validity of impugned order needs to be examined on the singular ground/reason mentioned in the impugned order. The specific contention of the petitioner that she was never subjected to any Lokayukta case or convicted therein is not rebutted by the respondents. Thus, WP No.18454/2020

the impugned order cannot sustain judicial scrutiny in absence of substantiating the singular reason aforesaid.

10. In a case of this nature, I am not inclined to relegate the petitioner to avail alternative remedy. Moreso, when the principles of natural justice are grossly violated and no disputed question of fact is involved in this case as per the reasons assigned in the impugned order."

The petitioner's case stand on the same footing. Similar is the position in the orders passed in WP No.10491/2017(supra), order in the matter of Pratima Atmere(supra), Brajesh Kumar Verma(supra). In the above circumstances, I am of the opinion that the impugned order suffers not only from the vice of non- application of mind but also suffers from the defect of non- compliance of principles of natural justice. Hence, the impugned order dated 24.01.2019 is set aside. Consequently, the appellate order dated 28.02.2019 and 14.11.2019 are also set aside. The respondents will be at liberty to take fresh action against the petitioner in accordance with law. Petition is accordingly disposed of.

(Prakash Shrivastava) Judge

YS/

Digitally signed by YOGESH KUMAR SHRIVASTAVA Date: 2021.03.17 17:28:58 +05'30'