Patna High Court
Ashutosh Kumar Santosh vs The Secretary Department Of ... on 24 March, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2584 of 2019
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Ashutosh Kumar Santosh, Son of Sri Bageshwar Prasad, Resident of Village-
Salahpur, P.O.- Dindayalpur, Via- Tarwara, District- Siwan
... ... Petitioner/s
Versus
1. The Secretary, Department of Empowerment of Persons With Disabilities
(Divyangjan), Ministry of Social Justice and Empowerment, Govt. of India,
New Delhi
2. The Joint Secretary, Department of Empowerment of Persons With
Disabilities (Divyangjan), Ministry of Social Justice and Empowerment,
Govt. of India, New Delhi
3. The Deputy Secretary, (National Institutes-NIS), Department of
Empowerment of Persons With Disabilities, Ministry of Social Justice and
Empowerment, Govt. of India, New Delhi
4. The Under Secretary, Department of Empowerment of Persons With
Disabilities, Ministry of Social Justice and Empowerment, Govt of India,
New Delhi
5. The Director, National Institute For Locomotor Disabilities (Divyangjan),
B.T. Road, Bon-Hooghly Kolkata 700090
6. The Dy. Director (Admn.) National Institute For Locomotor Disabilities
(Divyangjan), B.T. Road, Bon- Hooghly Kolkata 700090
7. The Composite Regional Centre for Persons With Disabilities, Patna through
its Director
8. Dr. Abhishek Biswas, Son of Mr. Mohitosh Biswas, Director, National
Institute For Locomotor Disabilities (Divyangjan), B.T. Road, Bon-Hooghly
Kolkata 700090.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mayank Rukhaiyar, Advocate
For the Respondent/s : Ms. Punam Kumari Singh, CGC
Ms. Rinki Kumari, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 24-03-2025
Heard Mr. Mayank Rukhaiyar, learned Advocate
for the petitioner and Ms. Punam Kumari Singh, learned
Advocate for the Union of India.
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
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2. The petitioner is aggrieved with the Office Order,
as contained in Memo No. CRC-Patna- Accounts
2507/Acct/2017/NILD/259(8) dated 25.01.2019, issued by the
Director, National Institute For Locomotor Disabilities, Kolkata
(respondent no.8) (hereinafter referred to as 'the NILD')
whereby the services of the petitioner has been dispensed with.
Although the petitioner had made a prayer for a direction upon
the respondents to reinstate him on his actual post with all his
consequential benefits, but in view of subsequent development,
as the petitioner has offered another appointment and he
accepted the same, hence this relief has not been pressed.
3. Considering the grievance of the petitioner,
which is under a limited bound to the extent of legality of the
impugned order, hence only the relevant facts are being
enumerated hereunder:
(i) It is pertinent to note that Composite Regional
Central, Patna (in short 'CRC') is an independent entity under
the administrative control of National Institute For Locomotor
Disabilities (Divyangjan), Kolkata, which is an autonomous
body created and registered under the Societies Registration
Act. The CRC, Patna, along with other like centres, was set up
in furtherance to a scheme for Implementation of Rights of
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
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Persons with Disabilities Act in the year, 2009. To implement
the scheme aforenoted, the Government of India created 19
permanent posts corresponding to their regular pay scale. In
furtherance to the efforts for setting up a new CRC, Patna, an
Advertisement was duly issued on contract basis calling upon
the eligible candidates for appointment on different posts.
(ii) In response to the advertisement, the petitioner
applied for the post of Assistant Professor (Clinical
Psychology). However, it is the case of the petitioner that
notwithstanding the fact the petitioner appeared and faced
interview for the post of Assistant Professor (Clinical
Psychology) before the Selection Committee. He was offered
appointment on the post of Lecturer (Clinical Psychology) on
contract basis. Since the petitioner had accepted the offer, hence
the issue is not required to be dealt with.
(iii) While the petitioner was discharging the duty on
the aforenoted post, the petitioner submitted a complaint against
the then incharge CRC, Patna alleging harassment and hostile
discrimination at the hands of the Incharge, apart from other
complaints, inter alia, taking forcible signature of the petitioner
on various blank cheques. In the meanwhile, the then Officer-in-
charge, CRC, Patna was directed to hand over the charge to the
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
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petitioner vide order dated 06.092017, accordingly, the
petitioner submitted his joining as Incharge, CRC, Patna on
06.09.2017
. The relevant records pertaining to Financial year
2016-2017 and 2017 - 2018 was duly examined by the Nodal
Officer, NILD, Kolkata and after preliminary enquiry, an F.I.R.
has been lodged with the police for the reported embezzlement
at the CRC, Patna. The petitioner sensing larger conspiracy,
wrote a letter to the Joint Secretary with regard to unauthorized
withdrawals in the account of CRC, Patna and also requested
for an enquiry into the matter. However, all of a sudden the
services of the petitioner came to be dispensed with by the order
dated 25.01.2019, as contained in Annexure- P/13.
4. Mr. Mayank Rukhaiyar, learned Advocate for the
petitioner while assailing the impugned order of termination has
contended that the respondents have committed manifest
illegality while dispensing the services of the petitioner without
conducting any enquiry. Before passing the impugned order, the
petitioner has not been accorded any opportunity, irrespective of
the fact the impugned order, on the face of it, is stigmatic in
nature, apart from being mala fide. It is specifically contended
that the petitioner has not been made accused even remotely for
committing any offence nor there is any finding against the
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
petitioner in preliminary enquiry report. There has never been
any other enquiry/investigation conducted against the petitioner
and no adverse finding have ever been recorded against him.
5. It is further contended that though the
appointment of the petitioner is said to be on contractual basis,
but the pattern of appointment made in pursuance of the
Employment notice is self-explicit that his employment was in
the nature of permanent, inasmuch, as no agreement/contract
had ever been executed to the parties to the employment. To
substantiate the nature of appointment, as permanent
appointment in substance, and while assailing the action of the
respondent authorities and the impugned order of dispensing the
services of the petitioner, reliance has been placed on a decision
rendered by the Constitution Bench of the Apex Court in the
case of Parshotam Lal Dhingra v. Union of India, AIR 1958
SC 36 and submitted that for determining whether the
termination of the service of a government servant is by way of
punishment is to ascertain whether the servant, but for such
termination, had the right to hold the post. If he had a right to
the post, the termination of his service will by itself be a
punishment and he will be entitled to the protection of Article
311 of the Constitution of India. Crystallizing the position, the
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
Hon'ble Court observed that Article 311(2) of the Constitution
will apply to those cases where the government servant, had he
been employed by a private employer, will be entitled to
maintain an action for wrongful dismissal, removal or reduction
in rank.
6. Further reliance has been placed on a judgment
rendered by the two Judges Bench of the Apex Court in the case
of Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of
Medical Sciences, Patna & Ors., 2016 (1) PLJR 135 (SC)/
(2015) 15 SCC 151 to the effect that if an ex parte enquiry is
held behind the back of the delinquent employee and there are
stigmatic remarks, that would constitute foundation and not the
motive. Therefore, when the enquiry commenced and thereafter
without framing of charges or without holding an enquiry the
delinquent employee was dismissed, definitely, there is clear
violation of principles of natural justice.
7. Since the impugned order of termination is based
on the premise of gross embezzlement of fund at CRC, Patna,
the same was required to be passed after adhering to the
principles of natural justice, in absence thereof the impugned
order lost its sanctity, is the contention of learned Advocate for
the petitioner.
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
8. On the other hand, Ms. Punam Kumari Singh,
learned Advocate for the Union of India has refuted the
contention of the learned Advocate for the petitioner and urged
before this Court that the very appointment letter clearly speaks
that the same was contractual in nature. Moreover, the order
impugned has been passed after careful consideration of the
petitioner's representation and various evidences gathered by
the Ministry. It has been directed by the Government of India,
Department of Empowerment of Persons with Disabilities, New
Delhi, dated 22.01.2019 that the service of the petitioner may be
dispensed with in connection with gross financial embezzlement
of funds at CRC, Patna with immediate effect. Accordingly, as
per the aforenoted direction, the petitioner's service was
dispensed with by the impugned order dated 25.01.2019, issued
by the competent authority. The petitioner was duly appointed
on contract basis; therefore his service is not covered under CCS
(CCA) Rules, 1965.
9. It is also contended that since the petitioner has
accepted another offer of appointment, hence in any view of the
matter, the writ petition has become infructuous.
10. Having heard the learned Advocate for the
respective parties and after going through the materials available
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
on record, especially the impugned order, this Court finds
substance in the writ petition.
11. It is true that judicial review of matters that fall
in the realm of contracts is also available before the superior
courts, but the scope of any such review is not all pervasive. It
does not extend to the Court to substitute its own view for that
taken by the decision-making authority. Judicial review and
resultant interference is permissible where the action of the
authority is mala fide, arbitrary, irrational, disproportionate or
unreasonable [vide Gridco Limited and Anr. Vs. Sadananda
Doloi and Ors.; (2011) 15 SCC 16].
12. So far the aforenoted settled legal position
enunciated by the highest Court of the land, it is axiomatic that
if the action of the authority is mala fide, arbitrary, irrational,
disproportionate or unreasonable, the Court while exercising
the power of judicial review can interfere in the action of the
order of the respondent authorities, if the plea with respect to
the grounds aforenoted is taken at the first instance. Well
settled it is that the correctness of the ultimate decision is
vulnerable to interference, unless the course of the decision
itself is so perverse or irrational or in such outrageous defiance
of logic.
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
13. Suffice it to observe that the Hon'ble Apex
Court in the case of Pavanendra Narayan Verma Vs. Sanjay
Gandhi PGI of Medical Sciences & Anr., reported in (2002)
1 SCC 520 has summarized the issue regarding determination
of stigmatic order of termination by holding that "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 are missing, the termination has been upheld."
14. Placing reliance upon the principle enumerated
in the case of Indra Pal Gupta Vs. Managing Committee,
Model Inter College, Thora, reported in (1984) 3 SCC 384
and Dipti Prakash Banerjee v. Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta & Ors.,
reported in (1999) 3 SCC 60, the Hon'ble Apex Court in the
case of Dr. Vijayakumaran C.P.V. Vs. Central University of
Kerala & Ors., reported in (2020) 12 SCC 426 has
categorically observed that the material which amounts to
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
stigma need not be contained in the order of termination, but
might be contained in any document referred to in the
termination order. Such reference may inevitably affect the
future prospects of the incumbent, and if so, the order must be
construed as stigmatic on the face of the record.
15. Reliance placed by the learned advocate for the
petitioner on a decision rendered in the case of Ratnesh
Kumar Choudhary v. IGIMS, reported in 2016 (1) PLJR 135
(SC) also finds substance in the matter wherein the Court held
that "if the facts revealed in the enquiry are not the motive, but
the foundation for the termination of services of the temporary
servant or probationer, it would be punitive and principles of
natural justice are bound to be followed and failure to do so
would make the order unsustainable."
16. It is well settled that if the purpose of the
enquiry is not to find the truth of allegation of the misconduct
but to decide whether to retain the employee against whom the
imputation has been levelled regarding his conduct, such
enquiry would be served as a motive for termination but where
the enquiry is held, based on evidence and a definite finding is
reached at the back of the employee about his misconduct,
there is no hesitation to hold that such order would be punitive
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
in nature.
17. What emerges from the aforenoted judgment if
that an order is based on the imputations and allegations, the
order is stigmatic and punitive and thus services of such
employee cannot be dispensed without affording him an
opportunity of defending the accusations/allegations made
against him in a full fledged enquiry.
18. The Court time and occasions has crystallized
that when an authority wants to terminate the services of a
temporary employee, it can pass a simple order of discharge
without casting any aspersion against the temporary servant or
attaching any stigma to his character. As soon as it is shown
that the order purports to cast an aspersion, it becomes obvious
that the order is not a simple order of discharge.
19. The Hon'ble Supreme Court in K.C. Joshi vs
Union of India and Ors., reported in (1985) 3 SCC 153 has
ruled that contract of service has to be in tune with Articles 14
and 16 of the Constitution and if it is to be suggested that one
can dismiss anyone without adhering to the enquiry or whisper
of the principles of natural justice, then such an approach
would certainly transgress the constitutional mandate. It is well
settled that if State action affects livelihood or attaches stigma,
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
the punitive action can be taken only after holding an enquiry
in keeping with the principles of natural justice.
20. Suffice it to observe that bare perusal of the
impugned order it is manifest that the decision to dispense with
the services of the petitioner has taken on account of
involvement of the petitioner in gross financial irregularity and
thus apparently the services of the petitioner has been
determined solely on the ground of misconduct as alleged, but
admittedly without holding regular enquiry or affording any
opportunity of hearing to the petitioner. It is also admitted
position that at no point any show-cause notice has been served
upon the petitioner. The order of dispensing the services of the
petitioner, even if on contractual basis, has been passed on the
premise of alleged misconduct without following the principles
of natural justice. The termination/dispensing order is apparent
stigmatic in nature, which could not have been passed without
following the principles of natural justice.
21. In the light of the discussions made
hereinabove, this Court is of the view that the order dispensing
the services of the petitioner, as contained in Memo No. CRC-
Patna- Accounts 2507/Acct/2017/NILD/259(8) dated
25.01.2019 is wholly illegal, unwarranted and cannot be
Patna High Court CWJC No.2584 of 2019 dt.24-03-2025
sustained. Accordingly, the impugned order stands set aside.
22. On account of the impugned order of
termination being set aside, the petitioner shall be entitled to all
the left over benefits, including the salary and perks, which has
either been withheld by the respondent authorities or found
payable to the petitioner till the date of passing of the
impugned order along with the cost of Rs.50,000/- as litigation
expenses.
23. The writ petition stands allowed.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 04.04.2025
Transmission Date NA
