-^ Sfc' c.^.; w •^PS ^lf|oS ,^:'?" r/- V»P SA^AJ^O INTHE STSSE ADMINISTR^IVE TRIBUN^»,N»P.SJAB^LPUR A989^?P'^-2^/^ G^A^NO* Petitioner: Applicant» vs< ^Dhaniram sSfiu7 s/©Shri Banauram Sabu» aged sSoont 55^ years»Kalara woEteer, Primacy i&lth oentre, Muogeli, dis^Er^etj&il^spur^ M ^Pj Respondents? Non-applicaBts < y '^.^ ^L<>v ' ^ v l^^v^ ^ 1. State of M»P«»thraugh ! the Seeretary, Pablic Health Department^ Vallabh Bhavan»Ehopal,M •P • 2• Chief Medical & Health offieer Bilaspur^distriot Bilaspur^H^EI DSTMLS €6' APPLICATION; A ^ 'AW^S^^ 3...» Magiiayan ^al SaNk S/@ .sferi ®fta»IRaa Ss^a efcout 8S sfea^s.* 3< |aa3it Bai M/o &sfee BteaM S@» SaSm' ?2 years..® S©th2'esi^^BQs off Tillag® yah®!.!^s^gel&y »i@tt» tlbalapwr C^Gs) r ' ^—t-—— ^ Petitioner Applicant HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION 13} N0.204/2005 Manharan Lal Sahu and another Respondents Non-applicants Versus State of Madhya Pradesh and another Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. FOR PRONOUNCMENT OF ORDER Sd/- Manindra Mohan Shrivastava Jude m^ •^v^^'^ &cs Petitioner Applicant HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.204/2005 Manharan Lal Sahu and another Resoondents Non-applicants Versus State of Madhya Pradesh and another Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. Present: - Smt. Renu Kochar, counsel for the petitioners. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State/respondents. ORDER (Passed on this ^ff^dav of February, 2010) This petition was filed by Dhaniram Sahu (since deceased) aggrieved by an order dated 13-07-1989 (Annexure A-6) by which the services of the petitioner came to be terminated with effect from 31-07-1989. During the pendency of the petition, the original petitioner Dhaniram Sahu died on 03-05-1992 and his legal representatives were subsequently permitted to be brought on record by allowing the application for substitution of legal representatives. (2) Case of the petitioner is that he was initially appointed as Surveillance Worker (Malaria) in the year 1972 and thereafter vide order dated 11-01-1973 (Annexure A-1), he was appointed as Cholera Worker and posted at Bilaspur DJvision. At the time of appointment, the petitioner submitted his application with educational certificate of Class Vth in original, on that basis, he was permitted to continue in the department as Cholera Worker. After about17 years, a letter dated 25-05-1989 (Annexure A-2) was issued to the petitioner stating that date of birth has not been recorded in the service book of the petitioner. It was also stated that earlier also several letters were issued to the -^' ".^.... ^,^^:^ ^.. ;%—<. petitioner but the petitioner has failed to submit the certificate regarding his date of birth. (3) As the petitioner did not remember his exact date of birth, he also tried to collect educational certificate ofVth class from the school where he studied but the same was not available in the school, as the records of long duration of more than 20 years were not maintained at Primary School, Dullpur, where the petitioner had studied. Thus, the petitioner was unable to file any certificate showing his date of birth. It is the case of the petitioner that the original certificate of Class Vth was submitted at the time of appointment and the duplicate certificate could not be obtained as origjnal record was not available in the school. (4) The petitioner was sent for medical examination for determination of his age before the District Medical Board, Bilaspur. The Board examined the petitioner and opined vide its letter dated 12-04-1988/09-08-1988 (Annexure A-3) that the petitioner appears to be above 50 years of age and according to the petitioner, he is 55 years of age. Vide communication dated 11-08-1988 (Annexure A-4), the Assistant Surgeon of Primary Health Centre, Mungeli forwarded this information to the Chief Medical & Health Officer. The petitioner submitted his reply dated 08-06-1989 (Annexure A-5) to the letter dated 25-05-1989 by stating that as the school certificate was not available and he does not remember exact date of birth, his statement and Medical Board Certificate may be taken into consideration. It was stated that if the certificate of Medical Board was not accepted, then ie petitioner may be retired 31-07-1989 holding that the petitioner has attained 58 years of age and he may be either given voluntary retirement or may be compulsorily retired and consequential benefits may be granted. Case of the petitioner is that it was not his mistake and it was obligatory on the part of the concerned ^f^ £"-z appointing authority who made necessary entries in the service book of the petitioner. As the petitioner did not have any evidence, it was not possible now to submit any certificate, as according to him, original certificates were already submitted at the time of initial appointment and duplicate certificate was not issued on account of non-availability of records in the School where the petitioner studied. The petitioner's grievance is that without holding any enquiry, acting in a whimsical manner, without considering the report of the District Medical Board, the respondent No.2 vide order dated 13-07-1989 (Annexure A-6) terminated the services of the petitioner with effect from 31- 07-1989, jf no certificate was produced before that date. Though the petitioner has submitted an application for consideration of his case, no heed was paid. (5) The order of termination has been assailed on the ground that the petitioner could not be terminated without holding any enquiry. It is further submitted that on account of non-availabiljty of the date of birth, it was open for the respondent authorities to enquire the matter or to accept the petitioner's version or act upon the certificate ofthe Medical Board. Under any circumstances, the action taken by the respondent authorities of terminating the services of the petitioner was illegal, irrational and arbitrary in nature. It violated the principles of natural justice. It is submitted that at the most the petitioner could be retired, so that he would have received benefits of pension, gratuity, GPF ete. (6) In reply, it has been stated by the respondents that as the petitioner failed to submit his educational certificates, his date of birth was not recorded in the service book and though he possessed the qualification certificate but he did not file any certificate. It is further submjtted that as the petitioner was a temporary employee and he did not comply with the orders, his services were terminated by gjvjng three month's salary in lieu of three months notice. /.^ IV y (7) It is not in dispute that the petitioner was initially appointed in the year 1972 as the averments made in para 6 (b) of the petition, have not been controverted by the respondents in their return. It has also not been disputed that the petitioner was working since 1972. Moreover averments made in the petition that original certificate of educational qualification were submitted by the petitioner at the time of his appointment have not been controverted. The service book did not contain the date of birth of the petitioner. It came to the notice ofthe concerned authorities after several years and when the petitioner was asked to submit the certificates showing his date of birth, the petitioner could not submit the same. The petitioner was then sent for examination by the Medical Board. It is also not in dispute that the petitioner was examined by the Medical Board andthe Board opined that the petitioner appears to be more than 50 years of age. This is evident from Medical Board's certificate (Annexure A-3). (8) Respondents contention that the petitioner was a temporary employee cannot be accepted. The petitioner was continuously working in service since 1972. Even in the order dated 11-01-1973 (Annexure A-1), it has not been mentioned that the petitioner was a temporary employee. In subsequent communjcation made to the petitioner on 25-05-1989 (Annexure A-2), it is nowhere been written that the petitioner was a temporary employee. A perusal ofthe impugned order of termination dated 13-07-1989 (Annexure A- 6) would show that the petitioner has faijed to submit any certificate of his educational qualification and also certificate regarding date of birth. The order states that if the petitioner has failed to submjt such certificate by 31-07-1989, his services would be terminated by paying three months salary in lieu of three months notice. Such course of action adopted by the respondent No.2 is clearly jllegal and arbitrary in nature. Jt appears that somehow date of birth ...^ :.;^ • :<>':;:. "^.. :i 1 :€i:"^ ^ |«W^^y of the petitioner was not recorded in the service book. It is an admitted fact that the petitioner had submitted his original certificates of Class Vth regardjng educational qualification at the time of his appointment. If no entry was made in the service book, the petitioner alone could not be held responsible for this omission. Therefore, the respondent authorities ought to have conducted proper enquiry to ascertain the date of birth of the petitioner in all fairness and in the absence of any certificate, to take into consideration the certificate issued by the District Medical Board which examined the petitioner. However, none of these steps were taken and on the contrary acting in vindictive and punitive manner, services of the petitioner were terminated on account of his failure to submit required certificate. The impugned order was, therefore, clearly punitive in nature and cannot be said to be sjmplicitor. It is not a case that the respondent authorities determined the age of the petitioner and retired him. The petitioner was terminated from service on the ground that he failed to submit certificates. ff this act of failure on the part ofthe petitioner entailed punitive action of termination from service meaning thereby that petitioner committed some misconduct, it was jncumbent upon the respondents to hold enquiry consistent with the provisions contained in Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966, by issuing charge sheet holding a detailed enquiry and then imposing penalty of removal/dismissal from service for the alleged misconduct. (9) Assuming for the sake of argument that the petitioner was a temporary employee, even then, a detailed enquiry was required to be conducted and thereafter, order could be passed. It is dearly revealed that the order of termination from service was punitive in nature and detailed enquiry was necessary. Without any such enquiry or any proof of any misconduct, the r ^^"^% ^ P^Nttaifc^ petitioner could not have been unceremoniously shunted out as has been done in the case. (10) Fairness demanded that the respondents ought to have made due enquiry regarding date of birth of the petitioner and taken action instead of terminating the servjces of the petitioner. It is also relevant to note that the petitioner was sent for medical examination and the Medical Board examined the petitioner and opined that the petitioner was above 50 years of age. The petitioner stated in his reply dated 08-06-1989 that he may be retired by treating him as having attained 58 years of age on 31-07-1989. The action on the part of the respondents viewed from any angle, is highhanded, arbitrary, illegal and violative of prindples of natural justice. (11) The impugned order dated 13-07-1989 (Annexure A-6) therefore cannot be allowed to stand and the same is therefore set aside. Taking into consideration the fact that during the pendency of the petition, the petitioner has died and the fact that the petition has remained pending for more than two decades, the respondents are directed to determine the age of the petitioner according to the prevalent rules, regulations and guidelines of the Government as also the opinion of the Medical Board. Other consequential service benefits shall be extended to the petitioner on such determination of date of birth of the petitioner taking into consideration that the petitioner died on 03-05-1992. No order as to costs. __--—— Sd/- Manindra Mohan Shrivastava Jude Tumane