G SRlgl.-i- ^ IN THE HIGH CQURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) WRIT PETITION N0.2.^ ^ OF 2006 PETITIONER s.. ^^^...-.-^5 ^s^^- 3^--"""- Smt. Savitri Yadva, W/o Murari Lat Yadav, aged About 35 year, Tiwaripara, Post Offt'ce Kharod, Dfstrct. Janjgir-Champa (CG) ^••••^^'^- 's^^^'" ' ^-" RESPONDENTS VERSUS 1. State of Chhattisgarh through Secretary, Department of Urban Admlnistration & Development, Mantralaya, Dau Kalyan Singh Bhawan, Raipur (Chhattisgarh) -^t It-'J^x^ 2. Collector, Champa District Janjgir- (Chhattisgarh) Nagar Panchayat, Kharod, through its CMef Munidpal Offlcer, Nagar Panchayat Kharod, District Janjgir- Champa (Chhattisgarh) 4. Chief Munidpal Officer, Nagar Panchayat Kharod, District Janjgir-Champa (Chhattisgarh) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI. MANDAMUS, PROHIBITION AND OTHER SUITABLE WRIT OR WRni,^!RECTIQN ORD1RECTIQNS, ORDER OR ORDERS: The petitioner, above-named, most respectfully submtts as under: 1. PARTICULARS OF THE PETITIONER: As mentioned ln the Cause Titte above. 2. PARTICULARS OF THE RESPONDENTSl As mentioned in the Cause Title above. £52^.-- I «J HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENT PETITIONER RESPONDENT PETITIONER RESPONDENT WRrTPETn'ION_N0^2650F 2006 Sanesh Kumar Ratnakar Versus State of Chhattisgarh & Others WRIT PETITION N0. 266 OF 2006 Smt. Savitri Yadva Versus State of Chhattisgarh & Others And WRIT PETITION N0. 267 OF 2006 Sheik Salim Quereshi Versus State of Chhattisgarh & Others (Writ Petitions under Article 226/227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Ashish Shrivastava & Shri Harsh Wardhan, Advocates for the petitioners. Shri Ajit Singh, Panet Lawyer for the State. Shri Sandeep Dubey, Advocate for the respondents No.3&4. ORDER (ORAU (Passed on this 28th day of February, 2011) 1. W.P.Nos.265, 266 & 267 of 2006, involved common facts and a common question of law and, as such, they are being considered and disposed of by this common order. 2. Chatlenge in these petitions is to the order dated 24-12-2005 (Annexure - P/1) passed by the Additional Collector, District Janjgir-Champa canceling the appointment made eariier by order dated 7-11-2005 (Annexure - P/7) for two years on probation. 3. Learned counsel appearing for the petitioners submits that the appointment was made in accordance with the selection process and thereafter, the petitioners were appointed on probation for a c^ ^. period of two years. The Additional Collector, without having any authority, cancelled the appointment stating that there were irregularities in the selection, as several retatives of the candidates were in the selection committee as members. Learned counsel further submits that once the petitioners have been appointed, the appointment order could not have been cancelled without affording an opportunity of hearing, when there is no specific allegation against any persons including the petjtioner. 4. In support of his contention, learned counsel placed reliance upon the decision ofthis Court in Ku. Punam & Others v. State ofC.G. & Others . Learned counsel submits that this is also not a case where it was not practicable and possible for the Nagar Panchayat, Kharod, to hold enquiry or to afford proper opportunity of hearing, as there were only four appointments and it was very much possible for the authorities toafford proper opportunity of hearing to the petitioner and others; 5. On the other hand, learned counsel appearing for the State as well as learned counsel appearing for the respondents No.3 & 4, submit that there were serious irregularities in the selection process and, as such, the appointment orders were cancelled. In such a case where on an enquiry, it has been found that serious irregularities in the selection have been committed, it is not necessary to issue show cause notice. 6. I have heard learned counset appearing for the parties, pursued the pleadings and the documents appended thereto. Contention of the respondents that if there is a serious irregularity, it is not necessary to afford opportunity of hearing in such a case, is noticed to be rejected, as it is evident that the Nagar Panchayat, Kharod, appointed only four persons and the order passed by the Chief * 2008 (2) CGU 366 7 \.- :xecutive Officer, Nagar Panchayat, Kharod, was also not subject to approval by the State Government. The Additional Collector cancelled the appointment order on a vague and un-specified ground that the relatives of the members of the selection committee have been selected and appointed. 7. On perusal of the impugned order, it is found that there is no specific groundstating that who was the relative of the appointee and who was the member of the committee or who has appointed the petitioners with ulterior motive. In such a case principles of natural justice has to be followed strictly. On mere allegations, stigmatic order cannot be passed even during the probation period. 8. The identical issue came up for hearing before this Court in Dhaluram Kosariya v. State of ChhaWsgarh & Others2, wherein this Court, after having considered various decisions of the Supreme Court, observed as under: "13. The Supreme Court in the case of Radhey Shyam Gupta vs. U.P.State Agro Industries Corporation Ltd. and another, has observed in para 34 as under: - "34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where o the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future 'regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive." 14. The Supreme Court in the case of Dipti Prakash Banerjee vs. Satyendra Nath Bose 2008 (III) MPJR-CG 110 [^ National Centre for Basic Sciences, Calcutta and Others has observed in para 35 as under:- "35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to sigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquirywas conducted..." 15. The Supreme Court in the case of Nar Singh Pal vs. Union of India and Others has held as under:- "The appellant, although a casual labour, had acquired temporary status. Once an employee attains the "temporary' status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other articles dealing with services under the Union of India. The services were terminated on account of the allegation of assault made against the appellant. The order of termination in the instant case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of punishment and, therefore, was an order of dismissal which, having been passed on the basis of preliminary inquiry and without holding a regular departmental inquiry, cannot be sustained." 16. The Supreme Court in the case of Chandra Prakash Shahi vs. State of U.P. and Others has observed in para 12, asunder:- "12. Now, it is well settled that the temporary government servants or probationers are as much entitled to the protection ofArticle 311(2) ofthe Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and 1 ^ their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The Courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is an innocent as worded. (See: Parshotam Lal Dhingra Vs. Union of India). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating theterms and conditions of service which, to put it differently, may have been the motive for terminating the sen/ices but the motive by itself does not make the order punitive unless the order was "founded" on those factors or other disqualifications." 17. The Supreme Court in the case of State of Punjab and others vs. Balbir Singh has observed in para 7, as under:- "7. Thus, the principle that in orderto determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the "object of the enquiry". If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. ON the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa Vs. Ram Narayan Das. It was held that one should look into the "object or purpose of the enquiry" and not merely hold the termination to the punitive merely because of an antecedent enquiry. Whether it f\ A (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry...." 18. In the instant case the facts of the case clearly establish that the termination of the serviee of the petitioner was not a termination simplicter but on the basis of the alleged irregularities and misconduct committed by the petitioners." 9. The ratio laid down in Dhaluram Kosariya (supra) has been referred with approval in Chandikeshwar Singh v. State of Chhattisgarti & Others, as under: "13....The order of removal being penal in nature, visiting with civil consequences, cannot be passed without holding the enquiry in accordance with the elaborate provisions as prescribed in Rule 7 oftheRules, 1999." 10. In Samsher Singh v. State of Punjab, the Supreme Court has clarified the distinction between the term 'motive' and 'foundation' holding that innocuously worded order can be passed on foundation of grave charges. 11. \n Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Others , relied on by learned counsel appearing for the respondent No. 2, 3 and 6, a Constitution Bench of the Supreme Court, laid down the law, as under: "202... It is now well settled that the 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 ofthe Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Considering from all aspects Regulation 9(b) is illegal and 32007(3)MPHT106(CG) "AIR 1974 SC 423 5 (1991)8upp. 1 SCC_600_ s'"^>^ .<;' ,,,--^~.'s^ ~!\^, F ^' l'**i "<i i^ '"s. '':. 1 r ^fc. Gowri °6a'sss? void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination." 12. Having regard to the above stated facts and circumstances of the instant cases and applying the well settled principles of law to the cases on hand, the impugned order is not cancellation of service simplicitor, but is a stigmatic order which has been passed without affording proper opportunity of hearing to the petitioners in a proper enquiry. Thus, the impugned orders are unsustainable. 13. In view of the above, all the impugned orders dated 24-12-2005 (Annexure P/1) are quashed. However, liberty is reserved to the respondent authorities to take appropriate action, in accordance with law, ifso advised. 14. In the result, the writ petitions are allowed to the extent indicate above. No order asto costs. —- Sd/- Satish K. Agnihotri Judge