AFR. fc^ HIGH GOURT OF CHHATTISGARH AT BILA8PUR ...^1 PETITIONER RESPONDENTS WMT PETITIONIS) No.488of2008 Akhtar Aged about 28 yeaEs S/o Late Shri Abdul B<^iir Near : Telepisoiie Exehange, Bhaiiupratappur, District: Karicer (C.G.) VERSUS ,. : 1; State of Chhattisgarh. Throu^i : Secretary^ Panchayat and Rural Dev^lopti^nt Department, D.K.8. Bhawan, Raipur (C.G.) 2. Coiimiissioner, Rojgar Guaraiitee Yojana, Vikas Ayukt OfFsce, Raipur^ Chhattisgarh. 3. Chief Executive Officer, Zila Paiichayat, South Bastar, Kanker (C.G.) WRIT PETITIQN UNDER AR'HCLE 226 OF THE CONSTITIJTION OF INDIA SB: Hon'ble Shii Satish K. Asiritootri, J. Present: Shri Sandeep Dubey, Advocateforthepetitiotier. Slm Y.S.Thakur, Deputy Advoeate General witli Shri P.K.Bhaduri, Panel'^awyer.fbr 'the State/respondeots, QRALORDER (Passsd on 23rd day of June, 2008) .The petitipner, in this petition impu^go.s; the order/notice dated 20.08.2007 (Armexiire P/4), whereby after holding the petitioner as guilty -of -several .charges, a iiotice . was' issued .and' ordqr- 'dated 24.11.2007 (Annexiire P/6) whereby the sendces oftiie petitioiier was terminMed 1mth<^ affbrdmg any opportuniity ofheari^ pqtitioner mAe.e^quiry.^ • •.^.•: -•',.•;.; • ..• '• : ' :;: ^ The indisputable facts, in nutshell, are that the petitioner was appointed as Project Officer<)n 29.€.2006 (Aimgxure P/l) 011 conlract basis fbr a period of one year. Thereafter, fhe services of the petitioiier was extended fiirther ibr a period upto 31 December, 2007. Iii the meairtime, tie petitioner was serv^i wifh a shiow-cauise-tiotice dated 20.8.2007 (Annexure P/4) holding the petitioner as guilty for having committed serious financial irregiilarities iri purcliase ofvarious articles. Pursuantto the said notice- the petitioner jBled his reply (Annexare P/5). Having considered his:r€ply, the .respoodeat No, 2 recorded that the reply was .not satisfactory, rFhus, the services of the petitioner was tenninated vide order dated 24;, 11.2007 (Amiexure P/6). Sbri Dubey, leamed counsel appearing for the petitioner submits that admittedly, the appointment ofthe.petitioner was upto 31 Dcicember, 2007, but the petitioner was removed on the basis of certain serioias allegations levelled against hlm, without holdmg proper enqitiry. The alleged enquiry was held at the badc ofNm axMl ghow-cause-W5tic©was issued after findmg him guitty ofthe alleged char^s. The petition^r did not have opportunity to put fbrvrard his case with regard to fhe allegations levelled against him as no opportliiiity of h^aritig was afibrdedto him intih^ enquiry, wfaereinhe was fbimd guilty, Shri Dubey further submits that the impugned order is a stigmatic order and has caused prejudice to ttte petitioner. The petitioner, thereafter applied for appointment on the post ofProject Officer, purauant to fee advertisement dated 23.9.2007. Hewasnot consideredon fhe a-ound of the stigmatic order dated 24. 11.2007 (Annexure P/6). Shri Thakur, leamed Deputy Advocate Greneral appearitig forthe State / respondents, per contra, submits that ttie <)rder was xxrt a pianiti^e order and it was termination simplicitor, Th^ petitioi]^ was ^vea^^^<^ to explain after he was fbund ^ilty m the prdimi3^^ admitted that no notice was given to put forwssd his ease m the enquiry 8. which held him guilty of all tfie charges levelled against Mm. Shri Thakur farther siibmits that even otherwise, term ofthe petitioiier has eome to an end as this was a contract appomtment. I have heard leamed counsel appearmg for th@ parties- perused the pleadings and documenfs app@nded fhCTeto, K is evident tiat tih^ preliminary enquiry was held at ttie back of the petitiotier wherein he? was fbund guilty of severai finaiici^ irregularities. The petitioxier had no opportunity to put fbrward his case m fhe enquiry, which resulted into holdmgthe petitioner guilty ofthe charges. A subsequetrt show-oause- notice dated 20.08.2007 (.4amexure P/4) was in fihe nature of second notice wherem after proper departmental enquiry, issued for ttepurpose ofimposition ofpumshment T& Supreme Court m tlie m^U^ ^f Anoop Jaiswal v. Govcmment of Indiaand anoihe^ has obser\7ed in para 12, as under: "12. It is, therefore, now well settled that whea-e the foarm oftiie order is merely a camouflag^ for fflni ordw of clismtssal fbr misconduct it is always open to tfae court before which the order m challcaged to ^) behind the fbrm aad asccctaia fh^true charact^r ofthe order. Ifthe court holds tihat theorderi^^ tie form is merely a determmation of employmeirt is m reality a cloak for aa order of pumshment, fhe court would not be debarred, merely because of ihe fbrm of the order, m givmg effect to the rights conferred bylawuponthe employee... .99 The Supreme Court, in the case of Indm Pai Qupta v. Memaging Comminee, Model Inter College, Thorc^, has obsen^d inpara 10 and 11 as under: "10. It is seen fromthe letter dated June 30, 1969 by which the services offhe appellant were temiixiated fhat tto resolutioii of !(1984)2SCC369 2 (1984) 3 SCC 384 4 ^—^: 10. fhe ManagmgCommitteedated April 27^ 1969 ismade a part of it by treatmg it as aa enclosare fo fhat lett^r. The? resolutioti actiially begins with a refefence to the report ofthe Mmiager, aod states that the facts confamed ixi tfae i^port wera <>s^iou§? and '"not m the interests offhe institution". It ftirfeer refers to fhe fact that fhe appellant was asked to give his explaaation to fhe allegati(ms made m the said report. That repoft ^tated: It is also evidexit fhat fhe seriousness ofttielapsesis enoygh to jystify dismissal biit 110 educati<mal mstto shouldtaketfaatbofherati<Mii. 11. The above report was the real fbimdation on which fhe decision ofthe Maiiaging Committee was basedL This is a aase where fhe order oftermination issued is merely a wmwv&^ for an order imposing the penalty oftermination of swvice <m fh^ ground ofmisconduct,..." The Supreme Court, m tiie case ^t Radhe ShyamGuptav. U.P.State Agro Industries Corporanon Ltd. and anothe^ h&s pbseryed inpara 34, asuiider: "34. But m cases wfaere fhe termmation is p ceded by an enquiry aiid evidence is receiv^d aad fitidings as to misc^ of a definitwe nature are awived at beM^ tiie ba^ officer aiid where <m the basis ofN^ch a report, fhe Itermination order isissued, suehanorderwill be violative of^ of natural justice masmuch as fhe^ {^^ offheeis^iryisto fiiid out fhe trufh oftfae allegations w a view t6 pamsh him and not merely to gafeer evidence fbr ^ Arture regular dq>artmental enquiry. In sudhi cases, Ae t^mmatiaii is to be treated as based or fbunded upon miscoiiduct atid will be pumtive.....'9 Applying tihe well settled prmciples oflawto tbe fects oftfie ease, it is cleariy est^blished ttiM tfae temiination oflhe SCTvices^ was not a termmation simplidtor, birt <m the basis of alteged irregularities and miscanduct committed by Irim withoirt lioldmg proper enquiry. Even in fhe case ofcontract appoitrtme^^^^i^ aGcount ofcertain allegations, fhe same ought to have bem established (19&9) 2 SCC 2l by affordmg an opportunity ofhearing to the alleged employee. Tlie same has not been done here. 11. For the reasons aml discussion made heremabove and the dida laid down by the Supreme Court in various cases, the iiiipugned sho^-cause- notice dated 20.08.2007 (AnnexureP/4) ajidtheorder dated24.il.2007 (Annexure P/6) are quashed. Tlw petitioner h etrtitled to all the benefits ftowing from quashing ofthe impugned ord^rs. 12. Shri Thakur, leamed Deputy Advocate Geaeral submits fhat the aufhorities may be graiited Uberty to issue Jfresh show-cayse-notice holding proper enquiry for serious fmancial irregularitits allegedly having been committed by the petitioner. In tihe ititerest ctfjiMoewher^ allegations are serious and may affect the exchequer ofthe State, literty is reserved to the respcmdents mrthorities to hold i^x^er ^ so advised. ' 13. Thus, the petition is aHowedtoti^ ab<we extent. Noord^a^ooost^ Sd/- Satish K.Agnihotri Judge Amit