Madhya Pradesh High Court

Sanjay Pandey vs The State Of Madhya Pradesh on 12 June, 2023

Author: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 12th OF JUNE 2023
WRIT PETITION No.27414 of 2018

BETWEEN:-

1. SANJAY PANDEY S/O SHRI BALDEO PRASAD
PANDEY, AGED ABOUT 47 YEARS, OCCUPATION
UNEMPLOYED R/O GRAM POST GHUGHARY,
DISTRICT MANDLA (MP) PIN 481661.
2. SMT. SANGEETA PANDEY W/O SHRI SANJAY
PANDEY, AGED ABOUT 43 YEARS, OCCUPATION
UNEMPLOYED R/O GRAM POST GHUGHARY,
DISTRICT MANDLA (MP).

.....PETITIONERS
(BY SHRI K.S. JHA - ADVOCATE AND SHRI YAGYAVALK SHUKLA -
ADVOCATE)

AND

1. STATE OF M.P. THROUGH : THE PRINCIPAL
SECRETARY, DEPARTMENT OF PANCHAYAT AND
RURAL DEVELOPMENT, MANTRALAYA, BHOPAL
(MP) PIN CODE 46001.
2. CHIEF EXECUTIVE OFFICER MADHYA PRADESH
RAJYA AAJEEVIKA YOJNA FORUM BHOPAL (MP)
PIN CODE 460001.
......RESPONDENTS
(BY SHRI AJAY PRATAP SINGH- ADVOCATE AND SHRI MANAN AGRAWAL -
ADVOCATE )
..............................................................................................................................................................................
Reserved on : 17.03.2023
Pronounced on : 12.06.2023
..............................................................................................................................................................................
2

This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER

Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, it is heard finally.

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioners are challenging the order dated 21.06.2016 (Annexure-P/5) whereby a decision was taken by the authority for not extending their contract period further and also the order dated 21.03.2018 (Annexure-P/7) whereby the appeal preferred by them against the order dated 21.06.2016 got dismissed by the appellate authority.

3. As per facts of the case, the petitioners were initially appointed in the establishment of respondent No.1 as Members (Group Motivators) for which an agreement was executed between the employee and employer on 02.05.2012 (Annexure-P/1). As per the terms and conditions of appointment, the petitioners were initially appointed for a period of one year and subsequently, after assessing their performance, the period of petitioners' contract appointment was extended time and again till 2016. Subsequently, a show-cause notice was issued to the petitioners on 04.02.2016 (Annexure-P/3) pointing out the shortcomings noticed in their duties asking their explanation within a week and pursuant thereto, denying the allegations levelled in the show-cause notice dated 04.02.2016, the petitioners had submitted their reply on 23.02.2016 (Annexure-P/4).

(3.1) Thereafter, the Additional Chief Executive Officer vide order dated 21.06.2016 (Annexure-P/5) had informed the District Project

Manager about the decision taken for not extending the contract period of the petitioners further.

(3.2) Challenging the order dated 21.06.2016 (Annexure-P/5), the petitioners preferred an appeal and in turn, the appellate authority approving the order passed by the appointing authority, dismissed the appeal vide order dated 21.03.2018 (Annexure-P/7). Hence, this petition.

4. The respondents have filed reply to the petition stating therein that appointment of the petitioners were purely on contract basis and in view of the terms and conditions of their agreement, it was not extended further. It is also stated in the reply that the petitioners being the contract employees have no right to be continued in the employment and in fact, petition filed by them challenging their termination is not maintainable. As per the respondents, at the most, the petitioners can claim compensation in view of the law laid down by the Supreme Court in a case reported in (2008) 8 SCC 92 [State Bank of India and others Vs. S.N. Goyal]. According to the respondents, before terminating the petitioners' contract employment, proper procedure as prescribed in the policy itself was followed and there was no violation of principle of natural justice and as such, under the existing facts and circumstances of the case, no enquiry was required to be conducted. According to the respondents, the petition does not have any substance and it merits dismissal.

5. Learned counsel for the petitioners is challenging the impugned orders mainly on the ground that the proper procedure as prescribed in the policy before terminating the contract employment of the petitioners was not followed which makes the orders vitiated. According to him, the reasons assigned in the order passed by the appellate authority make the order stigmatic and, therefore, without conducting any regular

departmental enquiry, termination cannot be made. In support of his contention, learned counsel for the petitioners has placed reliance upon an order passed by this Court reported in 2008 (4) MPLJ 670 [Jitendra Vs. State of M.P. and others] in which, the Court while allowing the petition had held that though the impugned termination order is innocuously worded, but it is founded upon the enquiry conducted behind the back of the petitioner therein about the alleged misconduct and as such, the order is stigmatic in nature and cannot be regarded as termination simpliciter.

6. In contrast, learned counsel for the respondents has opposed the submissions advanced by learned counsel for the petitioners and submitted that appointment of the petitioners was purely on contractual basis and the right of terminating the contract was with the respondent/employer and as such, the impugned order passed by the authority cannot be said to be illegal. According to him, the contract employee has no legal right to claim that he be continued in the employment and as such, the petition filed by the petitioners challenging their termination is not maintainable. It is also contended that before passing the impugned order, the procedure as prescribed in the policy itself was followed and there was no violation of principle of natural justice. According to him, in view of the facts and circumstances existing in the present case, no enquiry was required to be conducted. He has filed the documents showing that the petitioners were granted proper opportunity of hearing as apprising them about the shortcomings in their duties, a show- cause notice was issued to them asking their reply and in turn, they had submitted their reply. He has further submitted that since the performance of the petitioners was not found up to mark, therefore, decision for not extending their contract appointment was taken by the

respondent/authority. According to learned counsel for the respondents, under the aforesaid facts and circumstances, the impugned order passed by the respondent/authority does not call for any interference. According to him, the petition has no substance and it deserves to be dismissed.

7. I have heard the rival submissions of learned counsel for the parties, perused the documents available on record and also the agreement executed between the employees and employer on 02.05.2012. Condition Nos.5 and 6 of the agreement are relevant in the matter which read as under:-

"5- ;g in iw.kZr lafonk fu;qfDr gSA lafonk fu;qfDr vf/kdre 1 o"kZ gksxhA lafonk vof/k iw.kZ gksus ds mijkar dk;Zdq'kyrk ,oa fd;s x;s dk;ksZ ds ewY;kadu ds vk/kkj ij ;fn vko';d gks rks vkxkeh o"kZ ds fy;s lafonk fu;qfDr c<kus ij fopkj fd;k tk ldsxkA 6- lafonk ij fu;qDr vf/kdkfj;ksa@deZpkfj;ksa dk okf"kZd dk;Z&ewY;kadu larks"ktud ugha ik;s tkus ij] mudh lsok vof/k lekIr fd;s tkus ds iwoZ fe'ku ds vUrxZr eq[; dk;Zikyu vf/kdkjh@vfr- eq[; dk;Zikyu vf/kdkjh dh v/;{krk esa xfBr desVh dk vuqeksnu fy;k tkuk vko';d gksxkA"

However, the show-cause notice was issued to the petitioners showing the shortcomings in their duties including the fact that they remained absent for more than a month that too without prior intimation to the authority and in that situation, condition No.27 of the agreement comes into operation which reads as under:-

"27- p;fur mEehnokj] mldh inLFkkiuk ds LFkkiu ij dk;ZHkkj xzg.k djus dh frfFk ls lafonk esa ekuk tkosxk] ;fn lafonk ij fu;qDr dksbZ O;fDr 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;sxhA"

From perusal of aforesaid, it is clear that if a person appointed on contract basis without any prior intimation remained absent for more than a month then his contract appointment without even giving a notice will be treated

to be ended after expiry of one month period.

8. Perusal of impugned order not extending the petitioners' contract period does not reveal that while passing the order, any stigma was inflicted upon them. Though, the appellate authority in its order had assigned reasons for not extending the petitioners' contract period, but the same cannot be said to be stigmatic for the reason that if the order passed by the appointing authority was assailed by the petitioners by filing an appeal raising grievance therein that the order was passed arbitrarily without application of mind not assigning any reason, then it was obligatory for the appellate authority to meet out the grounds raised in the appeal so as to satisfy the appellant and if that is done, then the order passed by the appellate authority cannot be said to be stigmatic and for that no regular enquiry was required to be conducted.

9. This Court almost in similar circumstances in Writ Petition No.16636 of 2017 [Asheesh Beohar Vs. The State of Madhya Pradesh] after considering various judgments of the Supreme Court has taken a view that if terms and conditions of appointment give power to the employer to terminate the contract employment and following those conditions, if the employer terminates the contract employment, then the reasons for termination cannot be said to be stigmatic. In the aforesaid case, this Court has observed as under:-

"6. Considering the rival contentions of learned counsel for the parties and on perusal of record, the questions emerge that whether the impugned order issued by respondent No.3 terminating the petitioner's contract is proper or not and under the circumstances, the observations made by the appellate authority in its order showing the petitioner's poor performance are stigmatic and if so, then the petitioner's services can be terminated without conducting any enquiry or without providing him an opportunity of hearing?

7. The petitioner's appointment was indisputably on

contract basis with certain terms and conditions. Condition No.6 of the terms and condition on the basis of which, the petitioner's services have been terminated reads as under:-

"¼6½ Lkafonk ij fu;qDr lafonk dehZ dh lsok,W fu/kkZfjr vof/k ds iwoZ foHkkx@fu;ksDrk }kjk ,d ekg dk osru nsrs gq, fcuk fdlh uksfVl@lwpuk ds o dkj.k crk;s lekIr dh tk ldsxhA"

Though, the appellate authority in its order had made certain observations giving reasons as to why the service contract of the petitioner cannot be extended further, but according to the counsel for the petitioner those observations had made the order of appellate authority stigmatic and as such, as per the settled legal position, opportunity of hearing in the shape of departmental enquiry was required to be given. However, I am not satisfied with the said submission for the reason that it was not the order of disciplinary authority whereby the contract of the petitioner was not extended and his services were terminated. In the event when the order terminating his service contract was assailed by the petitioner by filing an appeal raising grievance that the order was passed arbitrarily without application of mind not assigning any reason, then it was obligatory for the appellate authority to meet out the grounds raised in the appeal. In the appeal, the appellant/petitioner had shown himself to be a very hard working, obedient and efficient employee and also raised a ground that before passing the order, he was not heard and, therefore, the appellate authority did not commit any mistake in observing the reasons for not allowing the petitioner to be continued in the employment because contract employment and term of contract depend upon the satisfactory performance of the employee and even the extension of contract depends upon the satisfaction of the employer. On the one hand, the petitioner is showing himself to be a very sincere worker but on the other, the documents available on record reveal that various show-cause notices were issued to him time to time pointing out the shortcoming in his performance for improving his work, but he was found reluctant and as such, the appellate authority had to justify the action of the respondent/disciplinary authority and, therefore, he had observed the factual position which does not cast any stigma. Things which are not known to the person and all of a sudden brought to the notice by way of order containing those aspersion, then the order can be considered to be stigmatic, but if the facts known to the employee which prima facie are correct then it did not cast any stigma. The order passed by respondent No.3 did not refer any such aspersion relating to working of the petitioner and therefore, the analogy relied upon by learned counsel for the petitioner that the order of the appellate authority is stigmatic and it needs regular departmental enquiry, in my opinion is

not applicable in the present case. The Supreme Court in a case reported in (2002) 1 SCC 520 [Pavendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and another] has considered the aspect with regard to termination of probationer and order passed thereto whether punitive or simplicitor. For determining the order of termination as punitive or simplicitor, the Supreme Court has observed as under:-

"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."

Considering the above observation made by the Supreme Court and the facts involved in the present case that neither any full formal enquiry was conducted nor any allegation involving moral turpitude or misconduct or any observation with regard to finding of guilt in the order passed by the respondent/disciplinary authority was made and as such, the same cannot be said to be improper. However, the Supreme Court has also made observation in the case of termination of a probationer whose services otherwise were temporary during the period of termination and in the present case also, the services of the petitioner were on contractual basis and his contract was extended from time to time and during that period in view of the terms and conditions of the contract, the employer was of the opinion that the contract was not to be extended, therefore, the order of termination passed by authority cannot be said to be a stigmatic order.

8. Furthermore, the Supreme Court in Pavanendra Narayan Verma (supra) after relying upon a case reported in AIR 1958 SC 36 [Parshotam Lal Dhingra Vs. Union of India] has observed as under:-

"10. Since "Dhingra is the Magna Carta of the Indian civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple, practical formula applicable to termination of probation of freshers and of the services of temporary employees", we have thought it best to refer to the facts of Dhingra case to understand what exactly was meant when the Court said:(AIR p. 49, para 82)

"It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."

From the petitioner's terms of the contract, it is clear that the right of termination for not extending his contract was available with the employer and as such, the authority terminated his services informing him that his term is not being extended and, therefore, that order cannot be said to be stigmatic or punitive. Though, the appellate authority only to meet out the grounds raised in the appeal had made observations and assigned reasons for following the conditions of terms of appointment, but those observations do not made the order of appellate authority punitive or stigmatic.

9. It is also not a case in which the petitioner was not granted any opportunity of hearing and all of a sudden, he was informed that his performance was not found satisfactory, therefore, his service contract is being terminated but on the contrary, as per the material available on record, the situation is otherwise as repeated notices were issued to the petitioner asking his explanation and pursuant thereto, he had submitted his explanation, but if at all the employer is not satisfied with his working nor inclined to continue his contract, then while terminating the service contract of the petitioner, no illegality was committed by the respondent/authority. Since, there is no allegation of mala fide or arbitrariness on the part

of the authority nor it reflects from the over all circumstances of the present case, therefore, in my opinion, the submissions made by learned counsel for the petitioner have no substance.

10. So far as the case of Jitendra Badgaiya (supra) on which learned counsel for the petitioner has placed reliance is concerned, the same has no application in the present facts and circumstances for the reason that in the said case, the Court has found that the petitioner therein was never issued any show-cause notice nor he was ever apprised before terminating his service contract that his services were poor, but here in the present case repeated notices were issued to the petitioner asking him to improve his work despite that no improvement was shown by him and as such, the employer had no option but to terminate his the service contract which, in my opinion, does not call for any interference."

10. Furthermore, in Writ Petition No.7179 of 2023 [Shashikant Tiwari Vs. The State of Madhya Pradesh and others], this Court has observed as to under what circumstances the order of termination though made on the basis of misconduct, negligence, insufficiency or any other disqualification, but cannot be treated to be stigmatic. In the said case, this Court has observed as under:-

"6. During the course of arguments and even in the averments made in the petition, nowhere it is stated that the alleged offence was not registered against the petitioner and therefore, if enquiry is conducted the petitioner could have changed the situation. Undisputably, the order impugned does not contain any incorrect fact, in my opinion, granting an opportunity or conducting an enquiry would be nothing but a futile exercise. Every order containing adverse fact does not consider to be stigmatic or punitive. The Supreme Court in a case reported in (2002) 1 SCC 520 (Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another) relying upon a case of Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 has observed as under:-

"10. Since 'Dhingra is the Magna Carta of the Indian civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple, practical formula applicable to termination of probation of freshers and of the services of temporary employees", we have thought it best to refer to the facts of Dhindra case to understand what exactly was meant when

the Court said: (AIR p.49, para 82) "It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."""

In view of the aforesaid enunciation of law, I do not find any substance in the submissions advanced by learned counsel for the petitioner, but on the contrary, I am of the opinion that in the present case, the procedure adopted by the respondent/authority for terminating the services of the petitioners in any manner cannot be said illegal or in violation of principle of natural justice.

11. So far as the case of Jitendra (supra) on which learned counsel for the petitioner has placed reliance is concerned, the same has no application in the present case for the reason that in the said case, an ex

parte enquiry was conducted behind the back of the employee in which misconduct alleged against him was found proved and, therefore, the contract employment was terminated. In the said case, the Court had found that it was a full fledged enquiry conduced behind the back of the employee which was the foundation for terminating the contract employment and as such, the order of termination of contract was held illegal as it was passed in violation of principle of natural justice, however, in the case at hand, no such enquiry was conducted and the order of termination/not extending the contract employment was made in view of the terms and conditions of the agreement executed between the employee and employer and in view of the criteria laid down by the Supreme Court in the case of Pavendra Narayan Verma (supra) for considering the order of termination punitive, the impugned order cannot be said to be stigmatic or punitive in nature.

12. In view of the discussion made hereinabove, the petition fails and is hereby dismissed.

(SANJAY DWIVEDI) JUDGE

Devashish DEVASHISH MISHRA 2023.06.14 10:37:36 +05'30'