[Cites 11, Cited by 0]
Madhya Pradesh High Court
Bhimrao Ghatode vs The State Of Madhya Pradesh on 13 January, 2026
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2026:MPHC-JBP:3427
1 WA-1235-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE PRADEEP MITTAL
ON THE 13th OF JANUARY, 2026
WRIT APPEAL No. 1235 of 2024
BHIMRAO GHATODE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ramesh Kumar Verma, Senior Advocate with Shri Aditya Verma,
Advocate for petitioner.
Shri Abhijeet Awasthi, Deputy Advocate General for the State.
ORDER
Per: Justice Pradeep Mittal
This appeal under Section 2(1) of the Madhya Pradesh Uchcha
Nyayalaya (Khand Nyayapeeth Ko appeal) Adhiniyam, 2005 is filed being
aggrieved by order dated 02.04.2024 passed by the learned Single Judge in
W.P. No. 15429 of 2017 by which the petition filed by the appellant/writ
petitioner has been dismissed on the ground of delay and laches.
2. The facts of the case is that the appellant/petitioner being a
regular employee, the services of the petitioner cannot be terminated
without conducting a regular departmental enquiry. The conduct of the
respondents is being assailed on the ground that though it is claimed that
since the appellant/writ petitioner remained absent from duties and was
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unavailable, therefore, ex-parte enquiry was conducted against him, but
according to the appellant/writ petitioner the procedure which had to be
followed even in his absence, that had also not been done and as such, the
impugned order is illegal and liable to be set aside.
3. In essence, the facts of the case are that the appellant/writ
petitioner was appointed as a Lab Attendant (Science) in Government
Science College, Pandhurna, District Chhindwara vide order dated
05.10.1987. According to the appellant/ writ petitioner, vide order dated
12.10.1989, he was kept on probation for a period of one year which was
successfully completed by him and as such, by Annexure-P/1, he was given
permanency.
4. Vide order dated 08.07.2005, the appellant/ writ petitioner was
transferred from Government College, Pandhurna to Government College
Damua, District Chhindwara and pursuant thereto, vide order dated
28.07.2005, he was relieved from his duties and joined at the transferred
place where according to him, he was allowed to work only for a week w.e.f.
21.12.2005 to 27.12.2005.
5. Being aggrieved with the action of the authorities, the appellant/
writ petitioner filed a petition before this Court i.e. Writ Petition No.17289
of 2006 which vide order dated 06.03.2007 got allowed directing the
respondents to allow the appellant/ writ petitioner to join his services at
Government College Damua, but when the appellant/ writ petitioner was not
allowed to join, then for implementation of order dated 06.03.2007, he filed
a contempt petition i.e. Cont. Petition No.152 of 2008, which vide order
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dated 15.12.2008 got disposed of giving liberty to the appellant/ writ
petitioner to institute fresh proceeding before the appropriate forum or Court
in accordance to law.
6. Thereafter, the appellant/ writ petitioner approached the
authorities asking them to allow him to join his duties, but nothing was done
and ultimately, he was informed that since he remained absent
unauthorizedly from his duties, therefore, his services were terminated.
However, as per the appellant/ writ petitioner, the copy of order terminating
his services was never communicated to him and as such, he made a
representation dated 21.03.2013 (Annexure-P/7) asking the authority to
supply him the copy of order terminating his services.
7. However, during pendency of petition, the appellant/ writ
petitioner came to know about the fact that vide order dated 03.07.2006, one
S.R. Sharma was appointed as an Incharge Principal, who had issued the
order dated 08.03.2010 (Annexure-R/9) terminating his services and,
therefore, the challenge is also made on the ground that impugned order
since passed by a person who was holding the charge of the post, therefore,
his services could not be terminated especially under the circumstances when
no departmental enquiry was initiated against him. However, the appellant/
writ petitioner amending the petition that too in the years 2017 and 2023 had
challenged the order of his termination dated 08.03.2010 and also sought for
quashing the charge-sheet dated 21.11.2009.
8. The appellant/writ petitioner has taken the following grounds in
the appeal that the learned that, the learned Single Judge has failed to
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consider the relief sought by the appellant/writ petitioner for supply of the
order of termination, if any, passed and alternatively, the quashment of
the same was sought. The order of termination Annexure R/9
dated 08.03.2010 was accompanied with the reply dated 16.02.2018
and thereafter, by way of amendment dated 22.10.2018, the said order of
termination dated 08.03.2010 was sought to be quashed. Therefore, it is
apparent that there was no delay in challenging the order of termination.
9. That, the appellant/ writ petitioner had represented the matter
Annexure P/7, whereby he demanded a copy of the order of termination,
dated 21.03.2013 but the same was not made available, therefore, the
appellant/ wit petitioner had to file the writ petition for the aforesaid reliefs.
10. That, the learned Single Judge has further observed that
the appellant/writ petitioner was not serious about his services on the ground
that he did not challenge the order of termination in time and no efforts were
made for redressal of his grievance. In this regard the learned Single Judge
has failed to consider that W.P. No. 17289 of 2006 was filed by him seeking
permission to join. The same was disposed of vide order dated 06.03.2007,
whereby he was permitted to join, but the appellant/ writ petitioner was
denied joining. Therefore, he was constrained to file Contempt Petition No.
152/2008, which was disposed of by this Court vide order dated
15.12.2008 on the ground that disputed question of fact with regard to
joining is involved. However, the liberty was granted to the appellant/ writ
petitioner to avail any other remedy available under the law.
11. It is submitted by the learned senior counsel for the appellant that,
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the learned Single Judge has further failed to consider the averments made in
paragraph 5.11 of the petition, whereby it was made specific that the show
cause notice dated 13.12.2006 was issued (Annexure R/3) by incompetent
authority, who was Incharge Principal. Further, on 21.11.2009, Annexure
R/6, charge-sheet was issued by the Incharge Principal holding current
charge and the order dated 08.03.2010 Annexure R/9 was also passed
terminating the services of the appellant/ writ petitioner by the incompetent
authority. The appointing authority of the appellant/petitioner is the
Principal, therefore, the Incharge Principal, who was substantially holding
the post of Assistant Professor was incompetent to issue the charge- sheet
and to pass the final order of termination, as the appointing authority of the
appellant/ writ petitioner is the Principal, which is evident from Annexure
P/9 dated 12.10.1989. It is submitted that no findings on this vital issue has
been given by the learned Single Judge and the judgments, which have been
relied upon by the appellant/petitioner, (2010) 9 SCC 157 (Greater Mohali
Area Development Authority and others Vs. Manju Jain and others), para 22,
23 and 24, have been ignored, whereby it has been stated that if the order is
not communicated, no legal right is created in favour of the person.
Therefore, the order of termination is bad in law. The same view has been
taken in (1998) 7 SCC 569 (Union of India and others Vs. Dinanath
Shantaram Karekar and others), wherein it has been held by the Hon'ble
Apex Court that actual service of notice, termination, issuance of charge-
sheet is necessary and the paper publication is of no consequence.
Personal service is necessary. The Hon'ble Apex Court in AIR 1979
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SC 1912 (Krishna Kumar Vs. Divisional Assistant Electrical Engineer and
others), in paragraph 4, 5, 6 and 7 has held that subordinate to the appointing
authority cannot pass any order of removal or termination. It has been made
specific that delegation of power to make a particular appointment does not
enhance or improve the hierarchical status of the delegate. An officer
subordinate to another who will not become his equal in rank by reason of
his coming to possess some of the powers of that another. This view has
been taken by this Court in 2013 (4) MPHT 400 (Ashutosh Kumar Pandey
Vs. State of M.P.), in paragraph 7, 8 and 9. The view of the Hon'ble Court is
very specific that a person holding a current charge cannot pass any order in
the departmental enquiry for termination or issuance of charge-sheet etc. The
Full Bench of this Hon'ble Court in AIR 1973 MP 104 (Girija Shankar
Shukla Vs. S.D.O., Harda and others) has also held that the incharge person
cannot terminate the services. All these assertions, legal as also factual, have
been completely overlooked by the learned Single Judge.
12. That, the order of termination vitiates as the same has been
issued by the incompetent authority. Therefore, it is nonest in the eye of law
and it is void ab initio. Therefore, it creates no right in favour of the State
Government. Under such circumstances, there is no delay of any kind nor the
issue of limitation may come forward against an order which is void ab
initio.
13. That, this fact is not in dispute from the plain reading of the
reply submitted by the respondents that Shri S.R. Sharma was the Incharge
Principal on current charge. Therefore, on account of admitted facts, the
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order of termination is liable to be set aside.
14. That, no reason has been assigned by the State as to why the
two important letters were issued by UPC and why not by registered post.
The UPC service is not recognized by this Hon'ble Court in many
judgments.
15. That, the State/respondents did not make any effort to serve
the charge-sheet and other letters including the order of termination through
personal service. Why the publication was made in a newspaper, which are
not published or circulated in Pandurna or Damua. It is apparent from the
documents on record filed along with the return that the said newspapers are
published from Bhopal having their circulation at Bhopal. Therefore, in the
light of the judgments of the Apex Court, as referred above, the order
of termination cannot be given effect to.
16. That, the learned Single Judge further failed to consider that
one after the other, legal proceedings were initiated by the
petitioner, therefore, he was vigilant and therefore submitted representation
in 2013, of which no reply was given, demanding the order of termination.
17. That, the judgments which have been relied by the learned
Single Judge relied upon by the State are not at all applicable in the
instant case.
18. That, as per Article 311(1) of the Constitution of India, it is
apparent that subordinate to the appointing authority cannot pass any order
of removal or termination.
19. It is submitted that the learned Single Judge has further erred in
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holding that the petitioner was not confirmed, whereas as per Annexure P/9,
it is apparent that the appellant/ writ petitioner was appointed permanently
vide order dated 12.10.1989.
20. That, it is alleged that the order of termination was sent to the
appellant/ writ petitioner and for that purpose, a dak book has been filed.
There is no proof of service, despite that the learned Single Judge
has believed that since it has been sent therefore, presumed to be served.
21. That, there is apparent violation of Rules 12, 13 and 14 of the
MP. Civil Services (Classification, Control and Appeal) Rules,
1966, whereby the charge-sheet can only be issued by the
disciplinary authority and not any other authority and no enquiry can
be contemplated nor any final order can be passed subordinate to
the appointing authority.
22. That, there is no delay and laches on the part of
the appellant/petitioner in challenging the order of termination as also the
charge-sheet etc.
23. Learned counsel for the appellant/ writ petitioner has relied on
the judgments of the Hon'ble Supreme Court rendered in the case of
Dharnidhar Mishra (D) and another Vs. State of Bihar and others reported in
(2024) 10 SCC 605, Collector, Land Acquisition Anantnag and another Vs.
Mst. Katiji and others reported in (1987) 2 SCC 107, G. Ramegowda, Major
and others Vs. Special Land Acquisition Officer, Banglore reported in (1988)
2 SCC 142, Sheo Raj Singh (Deceased) through legal representatives and
others Vs. Union of India and another reported in (2023) 10 SCC 531 on the
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point of delay and laches.
24. The respondents supported the impugned order and submitted
that in spite of issuance of several notices, the appellant/ writ petitioner
remained absent. He further submits that the appellant/writ petitioner did not
participate in the enquiry despite informing him at his residence about the
unauthorized absence and also he did not submit any application for leave.
25. Heard the learned counsel for the parties.
26. The learned Single judge relying upon the judgments of the
Hon'ble Supreme Court in the cases of Syndicate Bank Vs. General
Secretary, Syndicate Bank Staff Association and another reported in (2000) 5
SCC 65 and State of Punjab Vs. Jagir Singh reported in (2004) 8 SCC 129
was of the opinion that the petitioner was not serious towards his duties and
left the same unattended. That apart, after making repeated attempts by the
respondents, the appellant/writ petitioner did not bother to participate in the
enquiry and as such, the charges levelled against him since found proved,
therefore, order terminating his service was issued and got served upon the
writ petitioner/appellant who instead of filing the petition in time has filed
the same after much delay in the year 2017 even without assigning proper
explanation and reasons for causing delay.
27. The petitioner filed a contempt petition, i.e., Contempt Petition
No. 152 of 2008, which was disposed of vide order dated 15.12.2008,
granting liberty to the appellant/writ petitioner to institute fresh proceedings
before the appropriate forum or court in accordance with law. Thereafter, the
petitioner failed to file any appeal against the termination order. In the year
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2017, the petitioner challenged the termination order after an unexplained
delay of eight years. This clearly indicates that the petitioner was not serious
about his duties and service.
28. The petitioner last left his office on 27.12.2005 without
informing the office and without seeking any leave. After 27.12.2005, he
never returned to Damua to inquire about the status of his service. The office
conducted an ex parte inquiry after issuing due notice through paper
publication. The delay of eight years has never been justified by the
petitioner. The conduct of the petitioner clearly shows that he failed to
perform his duties at Damua, as he abandoned his office without informing
the authorities and never returned to ascertain the status of his service.
29. Having heard the learned counsel, we are of the considered
opinion that the findings recorded by the learned Single Judge are based on
documentary evidence and do not suffer from any perversity or illegality
calling for any interference by this court.
30. Accordingly, the writ appeal being devoid of substance and merit
is hereby dismissed.
(VIVEK RUSIA) (PRADEEP MITTAL)
JUDGE JUDGE
MSP
