Madhya Pradesh High Court
Ramakant Raghuwanshi vs The State Of Madhya Pradesh on 6 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 6 th OF MARCH, 2024
WRIT PETITION No. 19122 of 2019
BETWEEN:-
RAMAKANT RAGHUWANSHI S/O BHAGIRATH
RAGHUWANSHI, AGED ABOUT 34 YEARS, OCCUPATION:
GRAM ROJGAR SAHAYAK GRAM PANCHAYAT
KUCHWADA JANPAD PANCHAYAT UDAIPURA, DISTT.
RAISEN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SIDDHANT KOCHAR - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
SECRETARY PANCHAYAT AND RURAL
DEVELOPMENT MANTRALAYA VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. CHIEF EXECUTIVE OFFICER DISTRICT
PANCHAYAT RAISEN (MADHYA PRADESH)
3. CHIEF EXECUTIVE OFFICER/PROGRAMME
OFFICER JANPAD PANCHYAT UDAIPURA, RAISEN
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI G.P. SINGH - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
In the present petition, petitioner has challenged the legality and validity of
order dated 07.08.2019 passed by Chief Executive Officer/Programme Officer,
Janpad Panchayat Udaipura, District Raisen, whereby services of petitioner
were terminated on the ground that petitioner failed to discharge his
responsibilities as Gram Rojgar Sahayak.
2. With the consent of the parties, matter is heard finally.
3. Shri Siddhant Kochar, learned counsel appearing on behalf of petitioner
submits that petitioner was appointed as Gram Rojgar Sahayak of Gram
Panchayat Kuchwada, Janpad Panchayat Udaipura, District Panchayat Raisen
by order dated 05.11.2012 and by impugned order dated 07.08.2019, without
issuing any show cause notice, his services were terminated on the ground that
due to failure of petitioner to discharge his responsibilities, the progress of
various welfare works were found below average and benefit of the welfare
schemes could not be reached to the beneficiaries.
4. Learned counsel for petitioner assailed the order of termination mainly on
the following grounds:-
(i) Impugned order was passed without issuance of any show cause notice
and without conducting any inquiry, which amounts to violation of principle of
natural justice.
(ii) Order of removal was passed without even ascertaining the veracity of
the allegations or seeking any clarification from the petitioner.
(iii) Impugned order is contrary to clause 15 of the appointment order dated
05.11.2012 (Annexure-P-1), which provides that the services of contractual
employee will be terminable after affording proper opportunity of hearing.
(iv) Before passing the impugned order, Chief Executive officer failed to
consider that delay in progress of MNREGA was occurred due to the reasons
beyond the control of petitioner and mainly on account of elections and
imposition of Moral Code of Conduct.
(v) Installments for construction of houses under PM Housing Scheme were
remitted into the accounts of beneficiaries and beneficiaries failed to undertake
construction work within time for which the petitioner was not liable.
(vi) Time and again, High Court issued directions for affording opportunity
of hearing before holding any employee including the contractual employee
guilty of misconduct but the orders passed by High Court were not adhered.
5. Learned counsel relied on the judgment of Division Bench and this Court,
Bench at Gwalior delivered in the matter of Malkhan Singh Malviya vs. State
of M.P. passed in W.A. No.1166/2007 dated 08.03.2018 , wherein Division
Bench held that preliminary inquiry report prepared behind the back of
petitioner and the reply of petitioner to show cause notice, without affording
any further opportunity of hearing, are not sufficient to hold the guilty of
misconduct. Relevant paras of the judgment are extracted herein below:-
"11. Undoubtedly, the termination order castes stigma / blemish on
the future career prospects of the petitioner by finding him guilty of
serious misconduct. The least that is required under the principle of
natural justice is that a reasonable opportunity should be afforded
before criticizing the character of an individual. The reasonable
opportunity is by way of holding an inquiry where specific charges of
misconduct are informed to the delinquent employee followed by a
reasonable opportunity of filing reply, supply of all the adverse
material proposed to be used against the delinquent employee,
adducing of evidence in favour and against the charges in the presence
of delinquent employee and thereafter to render a finding of
misconduct or otherwise and the consequential order. It is needless to
emphasize that further opportunity to the delinquent employee to have
a say on the question of quantum of punishment would only rise if the
delinquent employee holds the post on substantive basis or there are
any enabling statutory provisions or executive instructions obliging the
competent authority to do so. But since the petitioner was contractual
/ temporary employee no such further opportunity on the question of
quantum of punishment is required to be given.
11.1 The Apex Court while deciding the case of Khem Chand Vs.
Union of India & ors. reported in AIR 1958 SC 300 though pertaining
to Art. 311 (2) of Constitution of India, had an occasion to summarize
the concept of reasonable opportunity as follows which is reproduced
below to the extent it relates to the present case :-
(19) To summarize : the reasonable opportunity envisaged by the
provision under consideration includes :-
(a) An opportunity to deny his guilt and establish his innocence, which
he can deny only do if he is told what the charges levelled against him
are and the allegations on which such charges are based; (b) an
opportunity to defend himself by cross-examining the witnesses
produced against him and by examining himself or any other witnesses
in support of his defence;
(c) an opportunity to make his representation as to why the proposed
punishment should not be inflicted on him, which he can only do if the
competent authority, after the enquiry is over and after applying his
mind to the gravity or otherwise of the charges proved against the
government servant tentatively proposes to inflict one of the three
punishments and communicates the same to the government servant."
12. The decision of the Apex Court in the case of Chandra Prakash
Shahi (supra) is further worthy of reference and reproduction to the
extent of para 28 & 29 to emphasize the concept of motive and
foundation :-
"28. The important principles which are deducible on the concept of
"motive" and "foundation", concerning a probationer, are that a
probationer has no right to hold the post and his services can be
terminated at any time during or at the end of the period of probation
on account of general unsuitability for the post in question. If for the
determination of suitability of the probationer for the post in question
or for his further retention in service or for confirmation, an inquiry is
held and it is on the basis of that inquiry that a decision is taken to
terminate his service, the order will not be punitive in nature. But, if
there are allegations of misconduct and an inquiry is held to find out
the truth of that misconduct and an order terminating the service is
passed on the basis of that inquiry, the order would be punitive in
nature as the inquiry was held not for assessing the general suitability
of the employee for the post in question, but to find out the truth of
allegations of misconduct against that employee. In this situation, the
order would be founded on misconduct and it will not be a mere matter
of "motive".
29. "Motive" is the moving power which impels action for a definite
result, or to put it differently, "motive" is that which incites or
stimulates a person to do an act. An order terminating the services of
an employee is an act done by the employer. What is that factor which
impelled the employer to take this decision? If it was the factor of
general unsuitability of the employee for the post held by him, the
action would be upheld in law. If, however, there were allegations of
serious misconduct against the employee and a preliminary enquiry is
held behind his back to ascertain the truth of those allegations and a
termination order is passed thereafter, the order, having regard to
o t h e r circumstances, would be founded on the allegations of
misconduct which were found to be true in the preliminary inquiry."
13. Reverting to the facts of the case, it is noticeable that before
casting stigma on the petitioner by holding him guilty of misconduct, a
mere preliminary inquiry report prepared behind the back of the
petitioner and reply of petitioner to the show cause notice was
considered by the competent authority before issuing order of
termination of service. The misconduct as alleged in the show cause
notice and the preliminary inquiry conducted behind the back of the
petitioner were the foundation of the termination. The termination was
not merely on the basis of finding the services of the petitioner to be
no more required but because he was found guilty of the misconduct.
14. In view of the above, the order of termination of petitioner
contained in Annexure P-6 is unsustainable in the eye of law being
stigmatic and yet not preceded by affording of reasonable opportunity.
Consequently, the impugned order passed in WP No.1029/2009(s) dt.
26.09.2017 is set aside and the termination dated 27.01.2009 is
quashed with liberty to the employer to proceed against the petitioner
in accordance with law, if so advised."
6. He further relied on the order dated 02.08.2017 passed by the coordinate
Bench of this Court in bunch of the matters including W.P. No.16572/2014
(Ramcharan vs. State of M.P. and others), wherein the similar directions
were issued by Single Bench. Relevant paras are extracted infra:-
"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 Guarantee Parishad and as per Clause
16, how the 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 opportunity 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 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 6.7.2013
issued by the Government of Madhya Pradesh, Ministry of Panchayat
& Gramin Vikas Vibhag, Bhopal and contended that now all the Gram
Rojgar Sahayaks 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
resintegra in the relief as prayed for in these petitions.
17. Accordingly, 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.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."
7. On the strength of judgment delivered in the matter of Ramcharan (supra),
learned counsel for petitioner submits that even on completion of the contract
period, if any misconduct is alleged and the order of termination is stigmatic,
opportunity of hearing is essential. He further relied on the orders passed by
coordinate Bench in W.P. No.20832/2017 (Dilesh Gurjar vs. State of M.P.) on
dated 06.12.2017, W.P. No.14584/2020 (Ramkrishna Bilare vs. State of M.P.
and others) dated 14.10.2020, W.P. No.27160/2018 (Kailash Naver vs. State of
M.P. and others) dated 03.03.2021, W.P. No.15579/2017 (Rais Khan vs. State
of M.P.) dated 10.10.2017, W.P. No.2423/2022 (Shivraj Gurjar vs. State of
M.P.) dated 02.09.2022, W.P. No.3347/2016 (Smt. Savita Choudhary vs. State
of M.P. and others) dated 11.4.2022, W.P. No.11248/2022 (Anand Patel vs.
State of M.P. and others) dated 22.11.2023 and submits that in a case where in
the imputation of allegation of irregularity or committing misconduct has been
alleged, inquiry ought to have been conducted and without conducting inquiry
the services of a contractual employee cannot be terminated even on account of
expiry of the period of contract. He prays for quashment of the impugned order
and issuance of directions for reinstatement of petitioner with all consequential
benefits.
8. Per contra, learned Government Advocate Shri G.P. Singh appearing on
behalf of respondent-State supported the impugned order and submits that
various works were assigned to the petitioner under Pradhan Mantri Awaas
Yojna and M.P. Rajya Rojgar Guarantee Yojna, but the petitioner failed to
perform the duties up to the mark and the period of contract was also
completed, therefore, continuation of the services of the petitioner was not in
the interest of State and public at large including the beneficiaries and
consequently after issuance of notice on 09.04.2019 and 17.07.2019, impugned
order was passed by which services of the petitioner were not continued. He
further submits that the impugned order is not an order of termination and it is
simplicator an order of informing the reasons to the petitioner for not continuing
his contract. He further submits that petitioner failed to offer any explanation in
respect of the allegations levelled in notices dated 09.04.2019 and 17.04.2019
and, therefore, the conduct of petitioner was not in the interest of State. He
submits that Apex Court in the matter of State Bank of India vs. S.N. Goel,
(2008) 8 SCC 92 has held that, a contractual employee cannot claim a
direction for reinstatement of his/her services and at the most, he can only seek
damages and cannot claim for specific performance. The termination order was
passed simplicator taking into consideration the fact that services of the
employee were not up to the mark and the prayer of reinstatement in services
was declined by the Supreme Court. He prays for dismissal of the petition.
9. Heard learned counsel for the parties and perused the record.
10. It appears that the petitioner was appointed as contractual employee by
appointment order dated 05.11.2012, initially for a period of one year and
thereafter, he continued to work on the post of Gram Rojgar Sahayak till the
passing of impugned order by which petitioner was informed that his services
are not in the interest of State and public at large, and therefore, his contract
cannot be continued.
11. Petitioner challenged the impugned order dated 7.8.2019 (Annexure-P-2)
in the present petitioner and by order dated 01.10.2019 the effect and operation
of impugned order was stayed and on the strength of the interim order originally
passed on 01.10.2019 and continued thereafter, the petitioner is still working on
the post of Gram Rojgar Sahayak. It appears that respondent/State has not
preferred any application for vacation of the interim relief meaning thereby the
respondent/State is not having any objection if the petitioner continues on the
same post on the strength of interim order.
12. In a case where some factual allegations were levelled against the
employee concerned before his termination, opportunity of hearing ought to
have been granted. Issuance of show cause notice and thereafter passing the
termination order straight way by casting any stigma on the petitioner on the
basis of material available with the employer, is not sufficient. In the present
matter in the impugned order Annexure -P-2, it is not reflected that any show
cause notice was issued to the petitioner or any fact finding inquiry or
preliminary inquiry conducted in the matter before passing the impugned order.
In the impugned order, it is specifically alleged that the petitioner had disobeyed
the instructions of senior officer and failed to perform the duties and
responsibilities of Gram Rojgar Sahayak. It is also alleged in the order that he
flouted the instructions issued by Senior offices and acted in contravention with
the terms of the contract. It is mentioned in the impugned order that due to
aforesaid conduct of the petitioner, his services are not required in public
interest and therefore, his contract was not continued and his services were
terminated. The aforesaid allegations are stigmatic and for the purpose of basing
the order of termination upon aforesaid allegations, it was essential to conduct
an inquiry and grant opportunity of hearing to the delinquent Gram Rojgar
Sahayak.
13. Resultantly, in view of above facts and circumstances and keeping in
view that petitioner is still working on the post of Gram Rojgar Sahayak on the
strength of interim relief granted by this Court, impugned order dated
07.08.2019 is hereby set aside and petitioner is reinstated. However, liberty is
granted to the respondent to conduct an inquiry and pass a fresh order, after
affording opportunity to the petitioner. As the petitioner is still working, he is
not entitled for any consequential relief.
14. With the aforesaid liberty, present petition is disposed of. No order as to
costs.
(VINAY SARAF)
JUDGE
irfan
