;lVt®lO"w rl -/f? , - _ ^ - ''y- /-©-£>,' 5 4 ES?» IN THE HIGH COURT OF CHHATTISGARH.AT - BILASPUR WRIT^APPEALNQ^ IR^ OF 2009 ARISING OUT OFORDER, DJ'. 26/3/2009^ PASSEDJN W. P. IS} N0^ 3343 OFL2008 APPELIANT (Petitioner) o^'n. -^''^s' ..Af^ ^*'y-* r / Smt. Hamida Begum, Aged - 45 years, W/o Shri Noor Mohd. Qureshi, Working as - Peon (now terminated) 1 at - Municipal Council, Mahasamund R/o Ward No. 10, Badhai Para, Mahasamund District - Mahasamund (C. G.) X-' ^' V E RSU S RESPONDENTS 1. State of ChhatUsgarh, Through - The Siecretary, Department of U^ban Administration Mantralaya ' D. K. S. Bhawan, Raipur. r 2. The Municipal Council, Mahasamund, Through - its President, Main Road, Mahasamund, District - Mahasctmund (C., G.) 3. The Chief Municipal Officer, Municipal Council, Mahasamund District - Mahasamund (C. G.) o'< ^Q-v ^f ^' Writ Anpeal Under Section - 2(1) of the Chhattisearh Hieh_Court (Anpeal to Division Bench) Act^2006 ^u\^ _^- TKe appellant most respectfully begs to submit as under :- -!^,'> M'}1 1)!M 1111!1 jLw^h^^^ ^o HKH COU8T OF WHATTIS6AW AJ Bli.ASPUR DIVISIOJllENCH; HON. WR. OMIRENOM MISHR<4 & MR. R.N. CHANDR^KAR. JJ (PerMonsrj Writ Appeal No. 127/2009 Smt. Hamida Beaum State of Chhattisaarh and ottiers Sd/- DhirendraMishra Judge HON'BLE MR. JUSTICE R.N. CHANbftAKAR °) eu^^e-e-. Sd/- R.N. Chandrakar Judge Sff >G5L£OR_.B^6»4gNT^M20-ll-zoO§ Sd/- Dhirendra Mishra ~ Judge ""^svwy.s' HI6H COURT OF WHATT1S6AW AJ BILASPUR V/rit Appea! No. 127/2003 u/s 2 (1) of C6 High Court (Appeal to Division Bench) Act, 2006 5mt. Hamida Beaum. Aaed 45 vears, W7o Shri Noor mohd. Qureshi, 'vVorking as - Peon (now TSr?nii'i'GTSdJ Si ^yiUniCipGa C/ClJHCii/ ^Gt^GS'^muri^E R/o Ward No.IO. Badhai Para. Mahasamund. District flAahasamund (CS) pi» Bhcwsn. 1.5tate of Chhatt'isqarh, Throuqh ttie Secretary, Department of Urban Administrstion, Mssntra'Gya, D.K.S. Bhcwsn. Raiour. Z.Tne ,V>unicipai Counci', MahGsamund, Through- \*s Presiderst, 'ACCT Road, MAasamund, District Mahasamund (C6) S.The Chief Anunicipal Officer, Jnunidpai Cou^cll^ MGhs3GtTiU?id Distrlct A".shG3GH*.und (C6\ Mr. R.K. feshar'wani, Advocate for the flcpeliant. * *.- t f iru: Vinay' MariT, uy. AovocaTe e'eneral tor respondenT N0.1. ."". Sudeep Agn"r..'a1, Ad'.'occte fo" "sspondsnts No.2 •& 3. 6 1 on 3o.il. ...JL: 1. This writ aooeai is direcTed against the imougned order dated 26.3.2009 oassed in W.P. (s) No.3343/08 whereby the learned Sinqle Judae has dismissed the writ oetition filed bv the petitioner/aDoeilant nerein. 2. Caee of the appellctnt before the writ court was that the petitioner was appointed as 'Peon' on daiiy wages in the Municipal Council, Mdiasamund on 1.7.1980. She served for a continuous Deriod of 28 yeurs as daily waaer till she was removed from her Dost yide order dated 20.5.200S by the MuniciDal Council, Mahasamund. The State Sovernment has issued a cii'culor dated 5.3.2008 for reoutarization of the daily rated employees who ore working before 31.12.1988. As per circular dated 5.3.2008 the oetitioner wds entitled to be considered for -reauiarization of her service. however. in order to deprive the ^JZ^ tSSf3u rs.s-w petitiorier from the benefifs of that circular, she has been removed from her post on 1tie flimsy grounds. The impugned order is stigmatjc as it mentions that the petitioner is aoathetic and nealiaent towards her duties and she mjsbehaved with the employees and officers. However, the saici order has been passed without following tfte principtes of natural justice and without affording any opportunity of hea.-ino to the petitioner. 3. /iAr. Keshawarni, learned counsel for the appeliant submits that the appeliant did not pray for r&guiarization of her servlces and she only orwed for auashina of the imouQned order' of ('emoval, as the same cast a stigma and it was passed without affordinq opporturilty of hearina. The order ifflouoned would affect her ruture Drosoects of procuring empioyment being stigmatic & punitive in nature and such order could not bs passed without enquiry after observing ttie orinciDles of natural justice. However, i'he iearned Singie Judge has dismissed the wr'it petition with a finding that the order cannot be termed to be stiamatic and aooointment of the oetitioner was illeaai and void ab initio as she was efflployed on dailv waqes on day-to-day basis and not for a Dartlcijkir tenure or on oermanent basis. From bare Derusal of the order of removal. it is evident that termination is not simpiicitor but it cast stigma upon the appeliant. Rdiance is placed on the Judoment in the matters of Telecom District Manaaer & Others )a.l 4. On the other hand, Mr. Aoarwal. iearned counsel for the respondent Municipal Council submitted that termina the smDiovee apathetic and neqlioent towards the duty and comDlcint of misbehave with tiie employees and officers, per se, couid not be construed stigmatic. There we.re complaints from the staff aqainst the "appellant, the appellant herseif tendered written apoloay for her behaviour (Bid in these circumstances, her termination from the oost has been riahtly upheid as the appellant did not have anv right to continue on the post. ^7 Reliance is placed on ttie judgments in the matters of Abhijit Supta 'Vs. -S.N.B. National Centre, Basic -Sciencss & others . L We have heard learned counssl for the parties. We have perused the racord of the writ petition as aiso the impugned order. 7. The oniv auestwn for our considerution in this writ aDDeal is the order of termination dated' ZO.5.2008 was stiqmatic and therefore, the same could not be passed without followiiig ttie principies of .tUStice? The order jmpuqned reads thus: dU^dd 1^ERT 'B ^sB qi^ Tli^RT &BIT unHT t {SB 3Tre!^ SRT 3PT^ %l4 T7 SXri^HdT q.RT^, SiWtqi^t EE?^, OlNreiRqt', qw^riKqT «g wsr qsggcut q,^ eg CBRDT gnsr t^'n'5 9<(-o4:. -?o0t; ^ Hqr ^RT {^SIT vfigr t i gsff R-tiq, gs-.o^.-joot; g'n EBT qa'T •STrcpBi' M-'ldM t^lT W ^ST t i WEI*(T 'flT-t i. From the documents fjied by the resoondent MuniciDal Council, it is seen that on account of certain compiaints of the employees of the MuniciDal Councii. the aDDellant was not oaid waaes for a period of five months. The aoDeilant v'lde her aoolication dated 15.4.2008 reauested for oavment of her wjthheld waaes and tendered apoloqy for any mistake committed by her 'm oerformance or her duty. 9. ln the matter of Te-iecom District Ma-nager A others the petit'one.r was a casual labour on daily waqes. The stand of the empioyer was that the Detitioner's attitude, behaviour and conouct as a casual labour in ^.-Itie^deoartrnerit were not at a!l satisfactory. He was arrested by 'rhe oolice on 12.3.1989 for the orfence under Section 34 (6) of the Poiice Acr. He was prosecuted and round guiity by the court of iaw and he was fjned on 13.3.1989. Thereafter, he was not alJowed to jojn duty. The Division Bench of &iuhati Hiah Court uDheld ftie order of the Administrative Tribuna! whereby the order of ter'mination passed by the ®moloverwas held to be illeaai as the soime was punitiye in na-rure and passed bn the basis of alteged misconduct without giving any ^rf" :,?-ya%, ';>^. ~ t ySSB^ g K JJ ''?T"'*-rSSPi"'' fi! Eii^ 8833 -At< il-rt ••.oshar./ oDportunity to rebut. Otemissinq itie duoeai of the emoloYer, tiie Hon'ble Suoreme Court has held that the order of termination w&s however, smce -i+ie appointment or the petitioner wos not in with iaw. therefore, instead of issuinq with back waaes, compensation was ordered. i0, Xn Abhi |it ^uoto. the Hon'blc Supreme Court ho.s ?*efe^red Po.ro-21 of ttie judqment delivered in the matter of Dipti Prokash Banerjee Vs. iGSift Basic Sciences' aDDroval thus: "21. One of the iudicialiv evolved tests to dstermine whether in substance cm order of termination is punitive is to .see. whether prior to the termination there was (a) a fuli-scaie formal enquiry (b5 inrb alieaations involvinQ mora! turDitude or misconduct which (c) cuiminated in a findinq of qujlt. If all three factors are present the termination has been held to be punitive ir-resDective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheid.' in the order of termination and nealiqent towards her' Eoyees and officers of the ter'med ro be stiamatic and the iearned Sinqle Judqe 'm be held to be erroneous. .1. In the instant case. the aileqations onlv refers that the aoaeliant was duties and she misbehaved with the Council. The aroresuid assertion cannot in our considered ooinion, observations this regard are just and proper and it 12.In •Itie result. the wrlt aDDeal has no ajbstance. the same deserves to be dismissed and it is hereby dismissed. Dbire»^^ Sd/- R-N. Chandrakar Judge 3<)3??538Ce6B