Jitendra Rathore vs The State Of Madhya Pradesh
2024 Latest Caselaw 16538 MP

Madhya Pradesh High Court

Jitendra Rathore vs The State Of Madhya Pradesh on 6 June, 2024

Author: Subodh Abhyankar

Bench: Subodh Abhyankar

                                                                       -1-


                                IN THE             HIGH COURT                    OF MADHYA PRADESH
                                                                       AT INDORE
                                                                        BEFORE
                                             HON'BLE SHRI JUSTICE SUBODH ABHYANKAR

                                                        WRIT PETITION No. 11885 of 2018

                           BETWEEN:-
                           JITENDRA RATHORE S/O SHRI PRADEEP
                           RATHORE, AGED ABOUT 34 YEARS,
                           OCCUPATION:   SERVICE   L-83, LIG
                           RATLAM (MADHYA PRADESH)
                                                                                                              .....PETITIONER
                           (SHRI PARESH JOSHI, ADVOCATE)

                           AND
                              THE STATE OF MADHYA PRADESH
                           1. SECRETARY   VALLABH     BHAWAN
                              BHOPAL (MADHYA PRADESH)
                              COMMISSIONER     THE   STATE  OF
                              MADHYA PRADESH UJJAIN REGION,
                           2.
                              COMMISSIONER      OFFICE,  KOTHI
                              ROAD, UJJAIN (MADHYA PRADESH)
                              COLLECTOR / ADM INDORE THE
                              STATE   OF   MADHYA  PRADESH
                           3.
                              COLLECTOR    OFFICE,  RATLAM
                              (MADHYA PRADESH)
                              DISTRICT  EDUCATION  OFFICER,
                              DISTRICT  EDUCATION   CENTER,
                           4. INFRONT OF NAGAR SUDHAR NYAS
                              HATHI KHANA RATLAM (MADHYA
                              PRADESH)
                                                                                                          .....RESPONDENTS
                           (MS. BHARTI LAKKAD, PANEL LAWYER)
                                   -----------------------------------------------------------------------------------
                                   RESERVED ON:                  24.4.2024
                                   PRONOUNCED ON: 6.6.2024
                           ----------------------------------------------------------------------------------------------
                                   This petition having been heard and reserved for orders, coming on for
                           pronouncement this day, the court passed the following:



Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 07-06-2024
11:14:58
                                                          -2-


                                                           ORDER

1. This petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 26/3/2018, passed by the Divisional Commissioner Ujjain, Division Ujjain affirming the order dated 20/2/2017, passed by the Collector, District Ratlam.

2. In brief facts of the case are that the petitioner was appointed on contract basis on the post of Sub Engineer at Janpad Siksha, Bajna, District Ratlam vide order dated 7.8.2009, which does not prescribe any tenure/period of service. The petitioner was continuously working on the said post till the year 2016, and on 27.4.2016, he applied for medical leave, and remained on medical leave from 29.4.2016 to 17/02/2017, i.e., for a period of around 10 months. According to the petitioner, he resumed service on 18.2.2017, and no show cause notice was ever issued to the petitioner seeking his explanation for his absence from the duty during the entire medical leave. On 20.2.2017, the petitioner's contractual appointment was terminated without providing opportunity of hearing.

3. Counsel for the petitioner has submitted that the impugned order has been passed without any inquiry, and even show cause notice was also not issued to the petitioner, thus, there is a clear violation of principles of natural justice. In such circumstances, the impugned order cannot be sustained.

4. Counsel for the petitioner has drawn attention of this Court to the fact that the show cause notices which were issued to the petitioner was prior to his availing the leave, and, he had already submitted his reply to the earlier show cause notice.

5. Counsel for the respondent/State on the other hand has submitted that the petitioner's appointment was contractual only as he was appointed under the scheme of Sarvshikhsha Abhiyan vide order dated 7.8.2009, in which it was clearly mentioned in condition no.2 that his appointment is temporary and can be terminated without any further notice. Thus, it is submitted that even otherwise, the petitioner's term had already come to an end and as per the terms and conditions of the appointment which is also appended to the aforesaid scheme of Abhiyan, it is provided that the contract shall be for one year only, and the same can be extended on revaluation of work, and also that if his performance is found to be not satisfactory, his services can be terminated without any notice. Thus, it is submitted that the petitioner has remained absent from the work for a period of around 10 months without any explanation, and after filing leave application on 27.4.2016, he applied for medical leave till he gets well, and thereafter he did not file any further leave extension application and he joined only after around 10 months, i.e., on 18.2.2017 (Annexure P-15). It is also submitted that earlier also the petitioner had not performed his work as per expectation, and his services have been terminated on account of his lethargy and dereliction of duty. It is also submitted that once the petitioner remained absent for 10 months, he cannot claim that he was not heard before passing the impugned order.

6. In rebuttal, Shri Paresh Joshi, learned counsel for the petitioner has drawn the attention of this court to the various notices issued to the petitioner which was also replied to by the petitioner explaining

his side that he had already performed the work, and some of the work was not even assigned to him. It is submitted that last show cause notice was issued to the petitioner on 4.3.2016, to which the petitioner had also replied on 6.3.2016 (Annexure P-29) but the respondents have not reflected upon those explanation in the impugned order. Counsel has also drawn the attention of this court to the certificates issued by the respondents in favour of the petitioner, that his work was satisfactory. Thus, it is submitted that the petition be allowed.

7. Shri Joshi has also placed reliance on the judgment passed by the Hon'ble Supreme court in the case of Prithipal Singh Vs. State of Punjab and others reported as (2002) 10 SCC 133, in the case of State of UP Vs. Sudhir Kumar Singh and others reported as 2020 SCC online SC 847 and by the coordinate Bench of this Court in the case of Subash Rao Awad vs. State of M.P. reported as 2018 (4) MPLJ 546.

8. Heard learned counsel for the parties.

9. From the record, it is apparent that the petitioner was appointed on the post of Sub Engineer on contractual basis way back on 7.8.2009, which, according to the scheme of appointment was for one year with extension clause. After working on the said post for around seven years, he went on medical leave on 27.4.2016, stating that on account of his ill health he would not be able to join his duty till he is recuperated.

10. Petitioner's contention is that he was suffering from Sciatica and his mother was also suffering from various ailments for which she was required to be hospitalized intermittently, at Aurbindo Hospital from 12.8.2016 to 31.1.2018, and during this period the petitioner was not able to work so he gave intimation to the office on regular interval. However, there is nothing on record to show that the petitioner ever visited the office during this period except on 18.2.2017, when he gave his joining at Janpad Shiksha Kendra by filing an application along with medical certificate for return to duty. Thus, admittedly, the petitioner has remained absent from work from 27.4.2016 till 18.2.2017, i.e., for a period of ten months which led the respondents to pass the impugned order dated 20.2.2017, alleging his dereliction of duty, and also his absence from work for around 10 months despite giving medical certificate on 29.4.2016 for only ten days.

11. In the impugned order condition no.2 of the office contract dated 7.8.2009 has also been cited in which it is stated that his services are purely temporary and can be terminated without any notice. It is also found that certain experience certificate has also been issued by the respondents in favour of the petitioner, that his work was satisfactory, however, his absence from service without any proper intimation cannot be countenanced in the eyes of law as reasonable or justifiable.

12. In the considered opinion of this Court, an employee who is appointed on contractual basis was so negligent so as to not inform his employer regarding his absence for ten continuous months

cannot plead equity. It is true that the petitioner had given explanation to the earlier show cause notice issued to him and no action was taken against him at that time, however, it is also apparent that his work was found to be unsatisfactory which is reflected from 8.2.2016 and 4.3.2016(Annexure R-1).

13. So far as the decisions relied upon the counsel for the petitioner is concerned, they are distinguishable on merit. In such circumstances, this Court is of the considered opinion that when no equity can be claimed by the petitioner, no case for interference is made out, and the petition being devoid of the merits is hereby dismissed.

14. It is also directed that the order of dismissal shall not be treated as petitioner's dis-entitlement to apply for any other job with the respondents or for his employment elsewhere.

15. The petition stands disposed of.

(SUBODH ABHYANKAR) JUDGE

das