IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1451 of 2009 1. THE DIRECTOR, BIHAR EDUCATION PROJECT COUNCIL THROUGH BELTRON BHAWAN, SHASTRINAGAR, PATNA 2. THE DISTRICT CONVENER, BIHAR EDUCATION PROJECT COUNCIL, SARVA SHISHA PRIYOJNA, ARARIA … Respondents 2 & 3/Appellants Versus 1. SATYA NARAYAN BAITHA S/O LATE RAJENDRA BAITHA R/OVILL PACNAUR , P.O. PACHNAUR, VIA BELSHAR, P.S. BELSHARD, DISTT- SITAMARHI AT PRESENT JUNIOR ENGINEER, BIHAR EDUCATION PROJECT, ARARIA , RESIDENT OF MOHALLA- POLYTECHNIC CAMPUS NEAR BIJLI BOARD CHAUK, WARD NO. 6, P.S. KHANZANCHI HAT, DISTT- PATNA … Petitioner/ Respondent-1st set 2. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, HUMAN RESOURCE DEPARTMENT GOVERNMENT OF BIHAR 3. DISTRICT MAGISTRATE, ARARIA 4. THE DISTRICT EDUCATION OFFICER, ARARIA 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, ARARIA … Respondents/Respondents 2nd set ----------- For the Appellants : Mr. Girjesh Kumar, Advocate For the Respondent no. 1 : Mr. Ashok Kr. Mishra, No. 2, with Mr. Pathak Dhananjay Kumar, Adv. -------------- PRESENT : HON'BLE THE CHIEF JUSTICE HON'BLE JUSTICE MIHIR KUMAR JHA, ORDER (22/04/2010) As per Mihir Kumar Jha, J. 2. Heard counsel for the parties. 2. In this intra-Court appeal the respondents- appellants have assailed the order of the learned Single Judge dated 13.10.2009 allowing the writ application filed by respondent no.1- writ petitioner wherein his 2 order of termination has been set aside with a direction for his reinstatement with back wages. 3. In order to appreciate the submissions which have been made by the parties it would be necessary to take the relevant facts into account. Respondent no.1- writ petitioner was appointed on the post of Junior Engineer in Bihar Education Project Council by an order dated 2.1.2007 (Annexure 2 to the writ petition) on contract basis for the period of three years or completion of the project, whichever is earlier. His services were placed in the project at Araria where he was found to be involved in defalcation of ex-chequer of the Government in a detailed report submitted by three members inspection committee consisting of Chief Accounts Officer, Deputy Director of Higher Education and Section Officer who had found the writ petitioner alongwith Dinesh Kumar Chaudhary, District Programme Coordinator as also Ravi Shankar, Assistant Programme Officer working in the project to be responsible for such embezzlement in league with the employees/ beneficiaries of Primary Agriculture Co- operative Society (PACKS). The Committee in its report 3 dated 13.4.2009 recommended for lodging of a criminal case as also disciplinary action against the concerned persons including the writ petitioner. 4. It appears that the State Project Coordinator by way of a follow up measure had requested the Collector of Araria District to lodge F.I.R. vide his letter dated 11.5.2009 but as a criminal case had already been filed vide Palasi P.S.Case No. 225/2008 dated 16.12.2008 and City P.S.Case No. 165/2008 dated 20.12.2008 for offences under sections 409, 420, 467, 468 and 120B of the Indian Penal Code, the State Government later on the recommendation of the Collector had handed over the investigation of two police cases to the Vigilance Investigation Bureau. 5. While the criminal action was still continuing, the Director of the Bihar Education Project Council had also initiated a disciplinary proceeding vide Memo No. 2883 dated 17.6.2009 with four specific charges against the writ petitioner as also Rajesh Kumar Das, Accounts Officer who too was appointed on contract basis alike the writ petitioner and Sri Ravi Shankar Prasad, Assistant Programme Officer, who was under deputation to the 4 Bihar Education Project from the State Govt. All three of them were asked to explain as to why their contract and/or deputation should not be cancelled for their misconduct enumerated in the aforementioned four charges. They were, accordingly, given an opportunity to file their show cause reply within a period of 15 days. It is not in dispute that the writ petitioner had denied all the four charges by filing his reply on 7.7.2009 whereafter the impugned order was passed on 23.7.2009 by terminating the service of the writ petitioner and Sri Rajesh Kumar Das by taking recourse to Rule 15 of the Bihar Education Project Service Regulations (hereinafter referred to as „the Regulations‟) by giving one month notice to both of them. 6. It is this order dated 23.7.2009 which was assailed in the writ petition filed by the writ petitioner on 16.9.2009 which came to be allowed by the learned Single Judge primarily on the ground that as the charges framed against the writ petitioner were relating to misconduct a departmental proceeding had to be conducted in terms of Regulation 52(b) read with Regulation 54 of the Regulations. It has been held that 5 the recourse taken to Regulation 15 of the Regulations or the terms and conditions of appointment of contractual service was wholly irrelevant, inasmuch as the services of the writ petitioner were sought to be terminated by way of punishment in which case the requirement of Regulations of undergoing the departmental proceedings could not have been waived. 7. Learned counsel for the appellant has submitted that the appointment of the writ petitioner was at best for a period of three years and the Bihar Education Project Council had reserved the right of terminating this contractual appointment by giving one month notice or salary in lieu thereof and as such, there was no requirement for conducting a regular departmental proceeding. He has also submitted that in any event the period of three years has now been completed and therefore, the writ petitioner cannot claim his reinstatement as a matter of right. 8. Per contra, counsel for respondent no.1- writ petitioner has submitted that from the show cause notice it would be clear that four specific charges were framed against the writ petitioner and the proposed penalty of 6 terminating the contract of service of the writ petitioner was by way of punishment and as such, the cloak of termination simplicitor in the impugned order terminating the services of the petitioner was wholly impermissible and was rightly set aside by the learned Single Judge. Counsel has further explained that true it is that the tenure of appointment of the writ petitioner was for a period of three years or termination of the project whichever is earlier but then there is yet another clause in the appointment letter which gives a legitimate expectation to the writ petitioner for expending of his services even after the period of three years in the event of continuation of the project. He has submitted that since the project was still continued, the writ petitioner but for the impugned order of termination could have still continued in service as his colleagues working in the same project have been given extension of service even after completion of the period of initial three years of contract. 9. In the opinion of this Court the view taken by the learned Single Judge to the effect that the writ petitioner ought to have been subjected to a departmental 7 proceeding for the charges framed against him seems to be correct. The Regulations under Clause 2 have been made applicable to each and every employee of Bihar Education Project including those engaged on contract basis as is clearly mentioned also in Clause 4 of the Terms and Conditions of appointment of the writ petitioner dated 2.1.2007. Chapter XI of this Regulations deals with the conduct and Chapter XII thereof deals with discipline. Clause 52 of the Regulations under Chapter XII enumerates minor as well as major penalties, wherein removal or dismissal from service is a major penalty. Clause 54 of the Regulations being relevant is quoted hereinbelow: “54. Procedure for imposing penalties:- 1. No order imposing any penalty on an employee shall be passed except after- (a) the employee is informed in writing of the action proposed to be taken against him and of the allegations on which it is proposed to be taken and is given an opportunity to make any representation he may wish to make; and (b) such representation, if any, is taken into consideration by the authority imposing the penalty. 8 2. In the case of a major penalty (those mentioned in sub clause (i) to (iii) of Regulation 52 the employee shall have the right to ask for a personal hearing/ oral enquiry. No order imposing such a penalty shall be passed except after the desired enquiry has been held and an opportunity has been given to the employee to make any representation against the penalty proposed to be awarded in the light of the findings of the enquiry officer and the conclusions thereto. While giving such opportunity, copy of enquiry report shall be furnished to the delinquent employee, provided that it will be open to disciplinary authority to differ with the opinion of enquiry officer, but before differing with the opinion of enquiry officer, if a penalty is proposed the delinquent employee shall be given an opportunity to explain in rebuttal of such difference of opinion before finally imposing punishment on him. 3. The appointing or the disciplinary authority may cause such enquiry to be held by himself or by any other employee/ officer of Parishad or any other agency or authority, provided such enquiry officer shall not be lower in rank to the delinquent employee.” 9 10. In view of above read with the definition of the „Employee‟ under clause 3(ix) of the Regulations which means any person serving the Parishad on any post with regular emolument, including those on deputation and also on contract basis it cannot be said that when four specific charges were framed against the writ petitioner with a stipulation for terminating the contract i.e. removal from service, he was not entitled for a departmental enquiry/ oral enquiry. Admittedly the procedure under Regulation 54 was not followed in the case of the writ petitioner and therefore, the impugned order terminating his contractual appointment by giving one month notice is patently in teeth of the provisions made in the service regulation. 11. The submission of the learned counsel for the appellant that there was a clause for dispensing with the service of employees appointed on contract basis by giving one month notice and also in terms of Clause 15 of the Regulations is only to be noted for its being rejected. Clause 15 of the service regulation under Chapter IV which deals with the tenure. Clause 13 talks of probation, Clause 14 makes a provision for temporary 10 and regular service and Clause 15 laying down of provisions of termination of service has to be read in that context which is as follows: “15. Termination of Service. a) The services of a temporary employee may be terminated by the appointing authority assigning any reason by a notice of one month in writing to the employee or on payment of one month‟s pay and allowances in lieu of such notice. b) The service of a temporary employee shall stand terminated. i) If his appointment is made for a specified period on the expiry of such period unless the appointment is extended for a further period, or ii) If his appointment is made against a temporary post, on the abolition of the post or on the expiry of the period for which the post is created, or iii) If he fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him and after his explanation, if any, in reply to a show cause notice, which should be given in all such cases, has been taken into account. c) The service of a regular employee may be terminated by a notice of three months or on 11 payment of pay for such period as the notice falls short of three months or without notice on payment of three months pay and allowances, if the post to which he is appointed as regular employee is abolished. d) A regular employee who is given notice of termination of service may be granted for the period of notice such earned leave as may be admissible to him, and where the leave so admissible and granted is more than three months, his service shall be terminated on the expiry of such leave.” 12. It has to be noted that the expression temporary employee has not been defined in the regulation but then Clause 13 makes it clear that every person appointed to a post under the Parishad by direct recruitment shall be on probation in such post for a period of one year and during continuation of probation period the services of the petitioner could be terminated by giving one month notice. Regulation 13(iii) in fact provides for regular appointment after satisfactory completion of period of probation and in this context the meaning of expression temporary employee becomes further clear from Clause 14 of the Regulations which lays down that an employee shall be temporary employee of the Parishad till he is 12 appointed as a regular employee to a regular post under the Parishad and further that an employee except appointed on contract or deputation against the regular post under the Parishad shall be regular employee of the Parishad. 13. Judged in this background, there would be no scope for any speculation that the writ petitioner, who was appointed on contract for a period of three years, was not a temporary employee against whom recourse to Regulation 15 could have been taken. There is also nothing to show in the appointment letter of the respondent- writ petitioner that he was appointed on probation for a period of one year and as such, recourse to even Clause 13(ii) of the Regulations with regard to termination of the services of a probationer was permissible. 14. The reliance placed on one of the clause of the order of appointment of the writ petitioner envisaging termination of service by giving one month notice on salary in lieu thereof can also not be made applicable in this case, inasmuch as the petitioner was sought to be removed on specific ground of misconduct for which the 13 regulations provide a procedure to be followed. Thus, when the impugned order was passed indicating that the services of the petitioner were dispensed with after giving one month notice it was actually by way of stigma on charges of misconduct and the same cannot be held to be termination simplicitor. The Apex Court in the case of State of Maharashtra vs. Veerappa R. Saboji & anor., reported in AIR 1980 S.C. 42, has clarified this aspect wherein it has been held as follows: “18. The law, it seems to me, is that where the services of a temporary government servant or a probationer government servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the government servant and is merely a termination order simplicitor, there is no case ordinarily for assuming that it is anything but what it purports to be. Where, however, the order discloses on the face of it that a stigma is cast on the government servant or that it visits him with penal consequences, then plainly the case is one of punishment. There may still be another kind of case where although the termination of services is intended by way of punishment, the order is framed as a 14 termination simplicitor. In such a case, if the government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 311(2) of the Constitution have not been satisfied. In a given case, the government servant may succeed in making out a prima facie case, that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth. …. …..” 15. In the present case the impugned order itself in paragraphs 7 and 8 makes it clear that prima facie charges were found to be there against the writ petitioner and Rajesh Kumar Das and such charges were also found to be proved. Thus, there is no iota of doubt that the impugned order terminating the service of the writ petitioner during continuance of his tenure of contractual appointment was penal and stigmatic in nature. Such order in fact having been passed incomplete violation of the Regulation 54 without holding oral enquiry as envisaged under the Regulations cannot be countenance 15 in law and has been rightly set aside by the learned Single Judge. 16. In fact there is yet another reason for this Court to uphold the order of the learned Single Judge, inasmuch as it is not in doubt that when the petitioner was given a show cause notice he had filed his detailed reply but when the impugned order was passed not a word was said as to how his explanation was unsatisfactory. It has to be noted that the competent authority has passed the impugned order without even dealing any of the issues raised by the writ petitioner in his show cause reply and the only consideration to the show cause reply as can be reflected from the reading of the impugned order is that “Inka Aspastikaran bhi santoshpard pratit nahin hota hai.” 17. It is well settled that any order which is capable of being assailed and reviewed by a court either in an administrative or a quasi judicial proceeding must contain the reasons. It is not sufficient compliance of the principles of natural justice that a show cause notice would be slammed to an employee and thereafter an order of punishment would be passed even without 16 discussing the defence/ explanation of such employee. This aspect of the matter in fact stands well settled in a series of judgment and one may readily refer to the judgment of the Constitution Bench of the Apex Court in the case of S.N.Mukherjee vs. Union of India, reported in AIR 1990 S.C. 1984. “Authority exercising quasi-judicial function must record reasons for its decision irrespective of whether the decision is subject to appeal, revision or judicial review. Reasons should be clear and explicit though may not be elaborate. This is one of the embodied rules of natural justice- Requirement is greater at original stage … … ” 18. As we have found earlier that the impugned order terminating the service of the petitioner during currency of his period of contract had not even discussed the defence taken by him in the show cause reply much less given any reasons to reject them, the order in question must be held to be also in violation of the principles of natural justice. 19. There would be no need to dilate on this issue that when an employee is removed from service by 17 whatever method without complying the principles of natural justice such order is patently unsustainable. The Apex Court in the case of Managing Director, U.P.Warehousing Corporation & anor. vs. Vijay Narayan Vajpayee, reported in AIR 1980 SC 840 had in fact gone into this aspect wherein it has been held as follows: “14. The appellant is a Corporation constituted under the Agricultural Produce (Development and Warehousing) Corporation Act, 1956 (Central Act 28 of 1956) which was subsequently replaced by Warehousing Corporation Act, 1962 (Central Act 58 of 1962). It is a statutory body wholly controlled and managed by the government. Its status is analogous to that of the Corporation which were under consideration in Sukhdev Singh case. The ratio of Sukhdev Singh case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had not come into force, then also, the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory regulations, 18 if any in force, or in the absence of such regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi- judicial character. The respondent was employed by the appellant- Corporation in exercise of the powers conferred on it by the statute which created it. The appellant‟s power to dismiss the respondent from service was also derived from the statute. The court would, therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant- Corporation and an opportunity to lead evidence in defence of the charge as also a show cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not 19 allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (opposite party 1) in the presence of the respondent. There was controversy on the point. But it was clear to the High Court from the report of enquiry by the opposite party 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge sheet is drawn up and served upon the delinquent and the latter‟s explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondents‟ explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court.” 20. The next question, however, would be as to what relief the petitioner would be entitled in the facts and circumstances of this case where his tenure of appointment of three years has already come to an end on 2.1.2010 upon expiry of a period of three years in 20 terms of his appointment letter dated 2.1.2007. As has been noted above, the terms of the appointment of the petitioner was contract for service for three years or completion of a project whichever was earlier. It is true that the project in question is still continuing but then the same can be only extended by the Bihar Education Project Board whose decision in the matter is final. The learned Single Judge found the order of termination of the petitioner to be bad both on account of violation of the Regulations as also its being in teeth of the principles of natural justice but then the question would be is it imperative for the courts to direct for reinstatement with back wages in all cases where such orders are found to be unsustainable. The answer to this question has also been given in the case of U.P. Warehousing Corporation (supra) wherein it has been held that: 18. … … … It must be remembered that in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion, it simply demolishes the order 21 which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior tribunal. In other words, the offending order