IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4491 of 2010 1. JITENDRA KUMAR RAJAK S/O MAHENDRA KUMAR RAJAK R/O VILL.- BAXAUTI, P.S.- GOVINDPUR, DISTT.- NAWADA Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. SECRETARY, RURAL DEVELOPMENT DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. DISTRICT MAGISTRATE CUM DISTRICT PROGRAMME COORDINATOR DISTT.- SHEKHPURA 4. DEPUTY DEVELOPMENT COMMISSIONER CUM ADDITIONAL DISTRICT COORDINATOR SHEKHPURA ----------- For the Petitioner:- Mr. Partha Sarthy, Adv. For the State:- G.P.-16 ------------- 2. 28.10.2010 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 30.1.2010 cancelling his contractual appointment as Junior Engineer as also the order dated 9.3.2010 by which the appeal preferred by him against the order of cancellation has been rejected. The petitioner is stated to be a diploma holder in Civil Engineering. He claims to have been appointed in May, 2007 on contract as Junior Engineer for a period of two years. This was extended in June, 2009 and he claims that his contract is valid and subsisting till 2.2.2012. The grievance is that his contractual appointment has been cancelled prematurely on basis of allegations against him giving a finding in the order of cancellation that he had 2 committed irregularities in the discharge of his duties. It is submitted that the appellate order has never been communicated to the petitioner and he is therefore not aware of the reasons why his appeal was not found acceptable. All that has been informed to him is a communication dated 9.3.2010 that he was present during investigation and all relevant papers were made available to the investigating agency which the petitioner was fully aware of and therefore there was no merit in his appeal. It is submitted that the premature termination of the contract is therefore in violation of the principles of natural justice and if the petitioner had been given an opportunity, he could have satisfied the authorities that there were no irregularities committed by him. It has been specifically asserted in Paragraph-21 of the writ application that some enquiry was held during the period 5.8.2009 to 15.8.2009 when he was on duly sanctioned leave attending to his ailing father. The respondents have filed a counter affidavit affirmed by an officer of the rank of Director N.E.P.D.R.D.A. It acknowledges the subsisting contractual right of the petitioner till 2.2.2012. The counter affidavit is completely silent on the assertion 3 of the petitioner that an enquiry of sort was held at the time when the petitioner was on sanctioned leave. The counter affidavit harps on the investigation done in which irregularities against the petitioner had been found. A statement has been made in Paragraph-17 of the counter affidavit that the petitioner had participated in the enquiry conducted by the vigilance department as would be apparent from Page-46 of the enquiry report. What was the enquiry report and what were the recitals in the enquiry report much more what was mentioned in Page-46 of the enquiry report is something which the respondents do not wish to disclose to the Court. It is trite law that in a writ proceeding, the evidence consists of documents. If the respondents chose to confront the Court with their own conclusions and consciously decide to withhold documents expecting the Court to unquestionably accept their conclusions, the Court has no option but to draw an adverse interference. If a writ petition can be dismissed because necessary documentary evidence in support of the assertions may not have been placed, there is no reason why averments made in a counter affidavit referring to certain documents but consciously withholding the documents cannot be 4 disbelieved. The contention of the petitioner that an enquiry of sort was held when he was on sanctioned leave directly conflicts with the stand of the respondents in the counter affidavit that the petitioner was present during the enquiry. Having read the writ petition, the deponent of the counter affidavit was expected to act more responsibly in assisting the Court in dispensation of justice. The petitioner does not hold a Government post. Therefore the standard of protection from termination that may be available to a Government servant shall not be available to him. But nonetheless so long as when contract subsists he can be removed only in accordance with law. The respondents could have dispensed with his services in accordance with the conditions of the contract simplicitor. But if they chose to ignore simpler option and act under the more onerous option of alleging irregularities against the petitioner, naturally their own circular dated 25.5.2009 binds them. Issued by the Rural Development Department it mandates that a case of alleged irregularities in the execution of schemes, prior to cancellation of the contract be preceded by a show cause notice and the cause shown must be 5 considered. It is unfortunate that though a counter affidavit has been filed, the respondents have still not considered it necessary to place the appellate order on record. The Court has no option but to strike down the order of termination dated 30.1.2010 as also the appellate order dated 9.3.2010. It shall not result in the immediate reinstatement of the contractual status of the petitioner. The matter is remanded to the Secretary, Rural Development Department, Government of Bihar who shall proceed to hear the petitioner. As a preliminary issue, the Secretary shall decide whether before the termination of the contract the petitioner was issued a show cause notice which he received or refused to accept. If no show cause notice was issued, was any enquiry held during which the petitioner was present and participated. This preliminary aspect shall be decided by the Secretary first by a reasoned and speaking order. If the Secretary holds that the order of cancellation was not preceded by a show cause notice to the petitioner or his participation in the enquiry, the order of cancellation of his contract shall stand vitiated. In that event, the petitioner shall 6 stand reinstated when the duration of his contract shall be extended by the period that he illegally kept out but subject to the contractual term agreed between the parties. This shall be without prejudice to the rights of the respondents to proceed afresh, if so advised. If the Secretary holds that the petitioner had been issued a show cause notice and it was served upon him and that he refused to reply the same or that an enquiry was held and during enquiry the petitioner was physically present, which finding shall have to be arrived at on basis of documentary materials which must necessarily be furnished to the petitioner by the Secretary during the course of such hearing, the impugned orders may require no interference. Let such fresh decision be taken by the Secretary in accordance with law within a maximum period of two months from the date of receipt and/or presentation of a copy of this order. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)