"jBEuj^d n 111 BS-SWS'"-' cmmiiw7' ^^; ^~J^n^^-/^^^^-^']<3^T->C-^.<W?<KM^^ 'i-w •f^fw^r^r^-^^^^^- :AT ^B£L£@R.' /j., '%! i". '-.''•9 ..' <:.. •f--\.'i fW fty'' i. ^' '^ t-,;,,tffiU3?OC<?^ "^-^-^s ——~&&.^y- wa^ ^ Yi o^?- ShashibbasbaB SOH of Sbri ViaeyaK 1 Kahapatra, agBtt alaont 25 years, .!'s ©ecupa-feioG- EaEstwhile, lax eotleefer^ebarir), Residewt of ^ Oairtewada, P.0, DaHkewada, Tateil BaBtewada, Distrlet Bastar, M.P. ^ VERSUS : , -. \ - •r 1.1he Sfeate of Madbya Pradesti tte'oughSeeretary, Heasiog "^ aod EnvlreueBt Beparlaent, BH©PAI*»i« 2. TtaO SpOGlal-Area Bevelopi^Bt T ^rt,hority(S.A^n,A.f, BeiaeHie, . 1-" ' *^; ' . . ' ' • !' . ' ' . c\' JH.O. BaBtewada, Bistsl^-B-astatiJ s *hn»ugti Th8 Ghaliiuuia oJ: t,t*y;Sal^ ff )-^^-— AHtbor.i.ty (S.A. @. A.-). V\ ,3. T-hie-^aimafl,—S^6^laL^ga ^<iUa ITtilstE.'BAST^.MP^ 'jl: f/ ^-C-hr 8Mff R'Kftonttoe.-'&mucrt-- | 1 ::...f- ".... ^- •'. ^ . .'—'^ %^-"st^. HT©7-<CTitewada,-8Astt7-4^tdr.-:^'iy-@ 1 1 --^( ,1''^ •A' ' ^\: WSSS. ARS5GLB 226 OF THB Sti T&ePetitioneF Baiaed above begs to SBtoBl.'t as Bffiii :1;. •.:^bat:'tee';pett1^Bsr.,,te^a-.(;a.ttzeB. 'of^.^ •(ras'aBpeiHWd;as:^x^<Setl®<^iBr:':::(HofaaEir^'o^^.'^^ seale ei& N. 775-ia-.^5-l4-l^2§-1^-41®@-^ ^a^::.:|(ati^^'25^^*S@!...®B.^.f>s-^^ SS1 ^ .C-'-'^^i' ^^•&ssa 'sas HIGH COURT OF CHHATTISGARH AT BILASPUR A F ^ U I -ot Writ Petition No. 3451 of 1991 Petitioner Shashibhushaa .-^.^.-"-:.;Sia' Versus Respondents The State ofMadhya Pradesh (now State of Chhatdsgarh) and ofhers SB; Hoa'ble Mr. Justice Satfeh K. Agaihotri, J Shri PrafiiU Bharat, Advocate for the petitioner. Shri V. V. S. Moorthy, Deputy Advocate General wifh Shri Arvia^d Dubey, ^Pauel lawyer for fhe respondents No. 1 and 5. None for the respondents No. 2 to 4, 6 and 7. ORAL ORDER { 4th July, The fdUowmg order of the Court is passed by Satish K. Agaihotri, J. l. This petition ffled under Article 226/227 ofthe Constitution oflndia impugns the order 8.5.1991 (Aiinexure P/13), whereby fhe petitioner, :jgs^ who was woridng on the post of Moharrir, was removed from servke on fhe groiuid ofserious inisconduct cominitted by fhe petitioner. < 2. The facts of the case, iu nutshell, are that fhe petitioner was appoiated as Tax CoUector (Mohamr) vide order dated 25.1.1990 (Annexure P/1) for a period of two yeare, on probation. Accoidmg to the petitiouer, fhe respondent No.3 - the fhen Chairmau of Special Aiea Developinent Authorily, Beladila, Dantewada visited the place of postiitg of fhe petitiouer at barrier (naka), at fhat time, fhe petitioner was absent. The petitioaer was accordiagly issued a show cause notice dated 24.12.1990(Annexure P/2) to subBait his explanation witfain a period of fhree weeks. The petitioner vide his representation dated 27.12.1990 (Annexure P/3) submitted his explaiiation statiag ;1 EII that due to bis aU of sudden indisposition, the petitioner had to leave the working place. It was further steted that the said conduct wouU not be repeated ia future. The then Chief Executive Officer of respoudeut No.3 issued a second show cause notice on 10.1.1991 (Annexure P/5) as to why the petitioner be not suspended from service. The petitioner furfher submitted his explaaation vide representation dated 14.1.1991 (Annexure P/6) stating fhat the date of absence be treated as leave aad the petitioner be pardoned fbrthe said<:onduct. Itwas also stated that the petitiouer had appUed earlier for leave which was forwarded but could not be placed befoic the Chaimian, Special Area Developiaent Authority as such the absence was not wilful. The petitioner was suspended {roia service vide order dated 17. l. 1991 (Aunexure P/7). Accordmg to the petitioner, the petitioner was not served wifii the charge-sheet despite his isquest letters dated 6.4.1991, 9.4.1991 and 14.5.1991 (Annexurc P/8, P/9 and P/10, respectively). The respondeuts No. 2, 3 aad 4 proceeded agaiast the r ex-parte and passed the impugned disinissal order dated 8.5.1991 (Annexuie P/13) on the ground that on holding fhe departineatal enquiry it has been found fhat the petitioner had coinmitted grave misconduct with a purpose to cause loss to the departinent, as such ia view of fhe fact that fhe petitioner was on probation, the service ofthe petitioaer was dismissed. Shri PrafuU Bharat, leamed counsel appearing for the petitioner subinits fhat the seryice of the petitioner was dismissed on the ground of aUeged misconduct for which it appears that the enquiry was conducted witiiout affording any opportunity of hearing to the petifioner. Even the charge-slieet was not served on the petitioner ' despite his letters dated 6.4.1991, 9.4.1991 and 14.5.1991. Leamed I \r •7 ite>sM®<. ^W-''iSS$S^v^. i counsel further subniits that this ainounts to uifraction of the provisions of Article 3ll(2) of the Constitution of India, hence fhe dismissal order be quashed beiag illegal, uiiconstitutioaal and contraiy to fhe provisions of law as weU as principles of natural justice. In this petition notices were issued to the respondents on 15. 11.1991. Pursuant to the notice the i-espondents appeared and filed fheir reply. In the nieantiiue on aboUtion of tlie Special Area Developmeut Auttiority, aa appUcation for amendiaent (I.A.No. 4303/96) in the cause tifle was filed and the respoadents were inodiGed accoidingfy vide order dated 6.5.1996 and uotice was issued to the newly iinpleaded respondents vide order date. 21.9.1996. The respondeats No. 2 to 4 have f3ed their netum on 19.10.1994. The icspondents No. 2 to 4 reinained throughout absent Tbe S.P.C. was issued on 28.6.2005 to the i";spondents No. 2, 3 aad 4, whichwas seryed but uo repiesentatioa was filed ou their behalf. Shri V. V. S. Moorthy, leamed Deputy Advocate Genei-al with Shri Arvind Dubey, learaed Paael lawyer appeaiing for fhe respondents No. 1 sjid 5 while opposing the petition submits that in fhis petition, ttie niain coritesting pariy is the respondents No. 2 to 4. I have goue through the return fSed by the respondents No. 2 to 4. Firsfly it is stated in the retui-n ftiat the petition be disiuissed on the ground of availability of altemative reiaedy, and secondly 'fhe petitioner was served with ttie chai^e-sheet on 8.2.1991 which was i^fused by the petitioner, It is further stated iu the rettu-a that fhe appointment of the petitioner was uot as per Riiles, as the post was not adveilised ajid the candidates were not caUed fixim. the einployinent exchange. The respondents have not respohse to the other points raised by tbe petitioner. any •V •••-•:. <- wea»saata lilt^l^^;tf^gl^ "Bl.it-i.ugJ 9. Leamed counsel for the petitioaer relying on fhe subinissions niade in the icjouider filed by fhe petitioner, subniitted fhat fhe aUegation that the petitioner has refused to accept the charge sheet is on fhe face of it, is incon1ect. The petitioner has m.ade representations which were never repUed to and no chai^e-sheet was suppUed to him. Leamed counsel for the petitioner fiirther submitted fhat it is incorrect fhat fhe petitioner's appoiatineat was niade without foUowing fhe proper procedure of law. The petitioner was appointed fi)Uowing fhe due aad pioper procedure. The petitioner was intei-viewed by fhe authorities concerued and along with the petitioner two other persoas namely Shri Doinar Singh Sahu aud Raj Narain Siagh wei'e also appointed and tbey are stiU working. It is further stated that no alteniative reiaedy is available to fhe petitioner as fhe appeal uuder Rules 57 and 58 of the Madhya Pradesh Special Area Developnient Authority (Chairman and Officers aad Senfauts Recruitm.ent and Conditions of Servicej Rules, 1976 (for shortthe Rules 1976^ can be pieferred only by regular eniployees, not the employees who are on probation. 10. Having considercd ttie submission of leamed counsel for fhe petitioner aad leamed coiuisel for the respondents No. 1 and 5 and having penised the retum filed by the respondents, it is evident fhat fhe uitenial enqiuiy conduct to find out the alleged misconduct coininitted by the petitioner was ex parte. It is ftulher clear that the petitioner was not served with the charge-sheet aud further he was not affonled an opporturtity of hearing enabUng him for putting forward his case befoi-e fhe authorities. The impiigned terminatiou oider was passed under the cloak of termiaation simpUciter. The impugned order is puzutive ia nature and the impugned order has been passed ia violation ofArticle 311(2) ofthe Constitution oflndia t ~^K!'- 1,(1*.. aad further violation of the principles of natural justice aad fau- play ia action. 11. So far as the averments ofthe respondents No. 2 to 4 ui fhe rettu-D. wifh icgard to the appointment of the petitioner is concemed, it is uo one s case fhat the dismissal order was passed on the ground that the appointiuent of fhe petitioner was not in accordaace with law aad as such it is not necessaiy to go into fhe facts of fhe case so far as fhe appointoient ofthe petitioner is concemed. 12. The Supreme Court ia tlie case ofAnoop Jaiswal Vs. Government of India and aaother ( (1984) 2 SCC 369} has observed in para 12, as under:- 12. It is, therefoi^, now weU settled that where fhe form of the order is nierely a camouflage for an order of disuiissal for inisconduct it is alwa^rs opeu to the court befoi^ which fhe order is chaUenged to go behiud the fonn and ascertain the true characfer of the orier. If tfae court hoMs fhat the order fhough in the form is inerely a determination of einployiaent is in realily a eloak for aa order of punishinent, the court would not be debarred, merely because of the form of fhe orier, in giving effect to the rights conferred by law upon fhe eiuployee." 13, The Supreme Coiu-t iu the case ofChandra Prakash Shahi Vs. State of U.P. and othws { (2000) 5 SCC 152} has observed in para 12, as under:- 12. Now, it is well settled that the temporaiy goveniment servaats or probatioaeis are as much entifted to the protectioa of Article 311 (2) of the Constitution as the permaaent eiaployees despite fhe fact tliat teinporary govenunent servants have no right to hold the post and their services are Uable to be terminated at any fime by giviag theia a inonth's uotice without assigniag any rcason either in terms of the cpntract of service or under fhe relevant statutoiy rales regulatiag fhe terms and conditions of such service. The courts can, therefore, lift the veil of aa innocuously-worded order to look at fhe real face of the order aad i ijr''"" ^^^il ""'i, to find out whether it is an innocent as worded. (See: Parshotaiu Lal Dhmgra v. Union of India.) It was explained in fhis decision fhat iaefi&ciency, negligence or misconduct may have been the factors for inducing thc Govenament to terminate the services of a temporary employee under the ternis of fhe contract or under the statutoiy Service Rules regulatiag the terms and conditions of service which, to put it differently, may have been the motive for terminating fhe services but tfae rn.oti.ve by itself does not make the order punitive unless the order was "founded" on those factors or other disqualifications."' 14. The Supreme Court ia ttie case of Pavaaeadra Narayan Verma Vs. Sanjay Gaadhi PGI of Medical Sciences and aaothCT { (2002) 1 Suprenie Court Cases 520} has observed in para 21, as under:- "21. One of tlie judiciaUy evolved tests to determiae whether in substance aa order of teniunation is punitive is to see whether prior to the tenuination there was (a) a fuU-scale formal enquuy (b) iato aUegations involving m.0ral turpitude or misconduct which (c) cuhniiiated ui a finding of guUt. If all fhree factors are present the termination has been held to be punitive irrespective of the fonn of the termination order. Conversely if any one of the three factors is inissing, fhe termination has been upheld." 15. The Supreme Court in fhe case of State of Ptfnjab and others Vs. Snkhtriiider Singfa { (2005) 5 SCC 569] has observed ia para 19, as under:- "19. It niust be bome in mind that no einployee whefher a probationer or teinporaiy wfll be discharged or reverted, arbitrarily, wifhout any rhynie or reason. Where a supeiior ofBcer, in order to satisfy bitaself whether the einployee concemed should be coutinued ia service or not makes iaquines for this purpose, it would be wrong to hold that the inqiiuy which was heM, was really intended for the purpose ofimposing punishiuent. Ifia cveiy case where sorae Idnd of fact-finding inquiiy is inade, whereia the ' '-einployee is eifher given an opportunity to explain or the inquuy is held behind his back, it is held fhat the order of discharge or tennination froia service is punitive in nature, even a boiia fide 16. EMs'iSiiSSSSs"** 17. 18. attempt by the superior ofiScer to decide whether the employee concemed should be iTetaiued iu service or not would run the risk ofbeing dubbed as an order ofpujiishment........" TIie Supreme Court in ttie case of State ot Pnnjab aad others Vs. Balbir Sin^i {(2004) 11 SCC 743} has obseived ia para 7, as under:- <"7 Thus the principle that ia orier to detemune whether the misconduct is miotive or fouadation oforder ofterminatioii, fhe test to be applied is to ask the questiou as to what was the "object of the enquiry . If an enquiry or an assessinent is done with the object offinding out aay misconduct on fhe part offhe employee aad for ttiat i^ason his services are termiaated, then it would be punitive ia uature. Qn fhe other haad, if such an enquiiy or an assessment is aimed at determiaing the suitability of an employee for a particular job, such termuiation would be termiaation siinpKciter and not punitive ia nature. This principle was laid down by Shah, J. (as he theu was) as early as 1961 in fhe case of State ofOrissa v. Ram Narayan Das7. It was held tliat one should look uito "object or purpose of the eaquiry" aad not merely hold the tennination to be puiutive inerely because of aa antecedeat eaquiry. Whefher it (order of teniunation) amounts to an order of dismissal depends upon fhe nature of the eaquiiy, if any, fhe pioceedings taken therein and fhe substaace of the fiiial order passed on such enquiry........." Witli regard to the availability of the altemative reniedy, on readiug of flie provisions of Sections 57 and 58 of the Riiles, 1976, it appears fhat uo alteraative reinedy is available. However, in fhe facts and circuinstances of flie case it would not sub-serve fhe interest of justice iffhe petitioner is drivea at this stage after a period of 15 yeara to avail fhe altemative reiaedy. For the reasons and analysis hereiaabove, the impugned oider dated 8.5.1991 (Annexiire P/13) deserves to be quashed. On the question of grant of back wages, no fouadation has been laid wittt regard to fhe gauiful employinent of fhe petitioner. The tune gap betroeen fhe -disiaissal order aad passing of fhis order when fhe matter was .i-y2Bit;SS?i ••SsfS^ ^•Aur pending for a period of about 15 years ia fhe Court aiid looking to fhe finaiicial condition of fhe conceraed respondents, it would not be fair to grant full back WE^CS. This Court is of the opinion fhat grant of 30% back wages would be sufficient ia the interest ofjiistice. 19. For the reasons stated above and the dicta laid dowa by fhe Supreine Court in various cases, cited above, this petition is aUowed. The respondents are directed to reinstate fhe petitioner in. service with 30% back wages, The petitioner would be entifled to aU consequential benefits Uke seniorily etc. on notional basis. In fhe facts aad circuinstances of the caae there shall be no order as to costs. Su'/- Satish K. Agaihotri Judge 3gs®s%—»