/I//II/I/// W(S9117§/©5 ' >EN TEE' l‘wléxDHYA ?RAJJBSI~E AD§TINI§TRATEV TRIBUBAL JABAL9 " Ux / //////lll{l/gl2/Il/l/ ORIGINAL A}?PLCJ&TION NO. \ ' q/Mof 19791- / APPLM’V‘A3 KART'IK RAMS/o Gulal ram R/o ‘mahamaya , / par“ Watchman (smack, umlssed) Salpa Tax offlce (Dy Comnlsaloner) Ralaur M P. VS. RE8PGNDENT;“ : ' 1. state of MadhYa'Praqlesh K Through the Spcretnry, Revgnue Department, Govt. of Madhya ?radesh Vdllabh Bhavan, V Bhcpal. 2. Dy Commission, Sales Tax R aipur . mPLICA’I'IDN UNDER SEC‘I‘IGN 19 OF THE ADMINESTRATIVE 'TRIBUNALS ACT? 1985 DETAI LS OF AP}?LICA‘NTON' ... @ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S! N0.g295l2005 Singie Bench: gon’ble Shri Magindra Mohan Shrivastava, J. FOR PRONOUNCMENT OF ORDER F’FB‘J E ”l Manindra V Mohan 5w- Shrwasta ' va l Jedgg, 3, APPLICANT Kartik Ram Versus RESPONDENTS State of Madhya Pradesh and another APPLICANT Kartik Ram Versus / state of Madhya Prade and another ’ Prest: - Shri R, K. Keshamani, counsel for the petitioner. en Shri Arvind Dubey, Panel Lawyer for the Statelrespondents. (Passed on this $’ay of February, 2010) This petition has been fried by the petitioner aggrieved on account of the order dated 05-11-199 (Annexure A-5) by which the etitioner has been 0 p removed from service. 2) The facts of he case necessary for adjudication of controversy involvd ( t e in the petition are that the petitioner was initially appointed as Chowkidar vide order dated 15-07-1985 passed by the Divisional Deuty Commissioner, Sales p Tax. Raipur (Annexure A-1). The petitioner was place under suspsion vide aorder dated 23-110 (Annexure A-2) on allegations of having commied serious negligence in not performing duty of Chowkidar in the night of 3 18-10-1990. This was followed by a show cause notice dated 25—10-1990 (Annexure A-3) in which it was alleged hat on 18-1 0-1990. the petitioner was t / assigned the duty of Chowkidar in the office of Divisional Deputy Commissioner, Sales Tax. Raipur andain thefhight. some unknown persons broke the doors of offlce and set on me the omcial records which was intimated only in the morning at 6 A;M. It was also alleged that the petitioner committed HIGH COURT OF CHHATTISGARH : ILASPUR WRIT PETITION (S) N0.2295l2005 RESPONDENTS sh Sinqle Bench: Honble Shri Manindra Mohan Shrivastava, J. ORDER z:5 d en 0-g9 tt u@‘ gvave misconduct, serious negiigence on his part and he also failed to perform , the duty of Chowkidar assigned to him. L (3) The petitioner submitted a reply to the aforesaid show cause notice vide his repiy dated 29-10-1990 (Annexure A—4) denying the aiiegations and stating that he was assigned day duty and though he waited for the Chowkidar who had been assigned night duty. he did not come whereupon after closing the t gate, he went away. it was submitted that he was not responsible for the tire in i the upper floor and as he was all alone in the building and had no facility like i torch etc. which was with night duty watchman Krishna, who did not tum up. (4) Taking into consideration the reply tiled by the petitioner, the competent authority passed the order impugned whereby finding was recorded that the petitioner was performing duty of night watchman on 18-10-1990 and during that period, the incident happened and no information was given in the night. On such a finding of guilt, petitioner was removed from service. (5) Learned counsel for the petitioner assailing the order of removal from service submits that as the petitioner had become a quasi permanent employee } on thedate when show cause notice was issued to him ie 23-10-1990 a major 3 penalty of removal from servrce couid not imposed by grvmg show cause notice } Without holding a detailed enquiry m the manner prescnbed under Rule 14 of Chhattisgarh CiVil Sewices (Classification, Control & Appeal) Rules, 1966 (For ' ” short “the CCA, Rules, 1966). Further submission is that as the petitioner was i, removed from service on allegations of misconduct. irrespective of whether he was temporary or quasi pennanent or’contin’ggncy paid employee, respondents could not have removed from service without holding proper enquiry into the allegations of misconduct as provided in Rule 14 of the CCA Rules, 1966. Learned counse! for the petitioner assails the order by submitting that the manner in which the order of penalty has been imposed. provision contained in Article 311 (2) of the Constitution of India has been violated, as the petitioner has not been afforded reasonable opportunity of being heard in the matter. (6) ‘ On the other hand,‘ leamed State counsel submits that the petitioner while working as night watchman failed to perform his duty and because of serious negligence on his part, unscrupulous elements entered into the office of the Divisional Deputy Commissioner. Sales Tax, Raipur. broke open the almirah and set on We the ofhcial records of the sales tax department, which was a serious matter. lt is also submitted that as the petitioner was a contingency paid employee, provisions of Madhya Pradesh Sales Tax Department Contingency Paid Employees Recruitment and Conditions of Service Rules, 1981 (For short “the Rules, 1981") are applicable and before imposing penalty of removal from service, the procedure prescribed under the Rules, 1981 has been duly followed. lt is further arued that the petitioner was given due and proper opportunity of hearing by giving a show cause notice, to which, he gave his repty which was duly considered and upon recording a finding that the petitioner was guilty of grave misconduct, his services were dispensed with. (7) l have heard leamed counsel for the parties and perused the records. 3 (8) From the order of appointment of the petitioner vide order dated 15~07— 1985 (Annexure A-1), it is clear that the petitioner was appointed as contingency'paid employee. This fact has also not been disputed by the petitioner. However, submission is that petitioner attained quasi permanent status after comptetion of five years of service as provided under the Chhattisgarh Government Servants (Temporary and Quasi-Permanent Service) \ Rules. 1960 (For shod “the Rules, 1960“). I fund myself unable to accept this submission. Bare perusal of Rule-1 sub Rule (3) Clause-C of the Rules, 1960 clearly shows that those rules are not applicable to government servants who are paid out of contingencies. In view of this, it is clear that a person, who is appointed as a contingency paid employee, is not entitled to the benefit of Rule 3 of the Rules, 1960. Consequently. it cannot be said that upon completion of five years of service petitioner attained quasi-permanent status in service. In ‘ y _ view of this. petitioner could not claim statutory protection of Rule 6 of the Rules ‘ H V 1960 which provide that the service of a government servant in quasi permanent status shall be liable to termination in the same circumstances and in the same manner as in the case of a government servant in permanent l ‘ status. / , (9) Terms and conditions of service of a contingency paid employee in sales tax department are governed by the Rules. 1981. Rule 13 thereof provides ( penalty that may be imposed on any employee. Rule 13 clause (vii) provides for penalty of removal from service which shall not be a disqualification for future employment. Rule 14 of the Rules of1 981 provides as under:- \ i ‘ 14.“Procedur;e any of the penalties for imposing specined penalties.- in clause (vi) (1) (vii) No and order (viii) imposing of rule 13 shall be passed except after- . ‘ (i) the do so, employee of the proposal is informed to take in writing, action when against possible him and to of the allegations on which it is proposed to be taken; (ii) the allegations opportunity employee made to explain is, against as soon his him; position as possible, in regard given to the an l, ‘i _ T, (iii) such explanation, if any, is taken into consideration “T ‘ ’ provided the order that of the no competent‘authority person shall be dismissed except when without the Head of the department finds it necessary to dismiss an employee from service on the ground of security of the State. effect (2) An immediately order in writing on delivery referred to the to employee in sub-rule and (1) in shall the event take J\ll of refusal by the employee to accept delivery of the order it shalt be affixed to the notice board of the establishment in which his borne and such affixing of the same on the notice board will be deemed to have been served him. A conjoint reading of Rule 12, 13 & 14 of the Rules, 1981 would show that on an allegation of misconduct, penalties specified in Rule 13 can be imposed by following the procedure prescribed under Rule 14. Rule 14 requires that the employee should be informed in writing about the proposal to take action against him and all the allegations on which it is proposed to be taken and the employee is iven opportunity to explain his position in regard to the allegations made against him. It further provides that before taking any action. explanation, if any, offered should be taken into consideration. (10) Examining the undisputed facts of the present case in the light of above statutory provisions, it is found that on the allegation of misconduct, notice as contemplated under Rule 14 of the Rules, 1981 was given to the petitioner on 23-10-1990 (Annexure A-2) informing in writing the proposal to take action against him and also the allegations on which it is proposed to be taken. He was given opportunity to explain his position in regard to the allegation by the said notice. The reply filed by the petitioner offering his explanation was also taken into consideration which is'clearly retiected from the order of removal from service dated 05-11-1990 ‘(Annexure A-5). The competent authority considered the nature of allegations, factual aspects and also the reply submitted by the petitioner. The competent authority has also applied its mind to the reply submitted by the petitioner and after due consrderation of the same recorded a specifc fndmg that the same is not satisfactory On such fnding of guilt the competent authority in exercise of powers conferred under Rule 13 (vii), imposed penalty of removal from service. HI (11) Contention of learned counsel appearing for the petitioner that before imposing penalty of removal from service, the respondents were duty bound to comply with the provisions of Rule 14 of the CCA Rules, 1966, is liable to be reiected inasmuch as in respect of contingency paid employee, specific rules governing their recruitment as also disciplinary action have been made. As those rules of 1981 lay down specie! provision with regard to the procedure to be followed before imposing penalty of removal from service in the cases of contingency paid employee, the provisions contained in CCA Rules, 1966 are not applicable. This is clear from bare reading of Rule 3(1)(d) of CCA Rules, 1966. In so far as procedure for holding departmental enquiry in the matter of imposition of penalty of removal from service is concerned in respect of contingency paid employee, it would be sufficient compliance of the rules, if the procedure prescribed under Rule 14 ofthe Rules, 1981 are followed. (12) It is next urged by learned counsel for the petitioner that the impugned order of penalty imposed on him is violation of Article 31 1(2) of the Constitution of India. From the pleadings made in the petition, it is found that such plea of violation of Article 311(2) of the Constitution of lndia has been raised on the assu\mption that as the procedure prescribed in Rule 14 of CCA Rules, 1966 was not followed before imposing penalty of removal from service, it violated the constitutional requirement 3f affording reasonable opponunity of hearing. ln so far as statutory requirement is concerned, it is clear that before imposing penalty of removal from service, the procedure as laid down in Rule 14 of the Rules, 1981 was followed. lt has not been Pleaded by the petitioner that upon receiving show cause notice. the petitioner demanded any document or asked for examination of any defence witnesses for his defence. From the perusal of the order of punishment, it is seen that established facts and circumstances appearing against the petitioner were taken into onsideration by the competent authority and the same were also disclosed to the‘petitioner in the show cause notice by which petitioner was given an opportunity to offer his explanation. in hese facts and circumstance, it cannot be said that the petitioner was nt fforded reasonabie opportunity of hearing. As su, i am unable to hold that the impugned order of penalty suffers from violation of Article 311(2) f the Constitution of lndia. it (1 3) in order to substantiate his rguments, learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Hari Ram Mrya V. Uon of India, 2006 (9)SCC 167 and Teleoom District Manager and others vs. Keshab Deb, (2008) 8 SCC 402, wherein it has been held by he Supreme Court that where the service are terminated on the ground of misconduct, irrespective of whether the employee was regular or temporary, he i entitled to opportunity of being heard and stigmatc termination could not take place without holding proper enquir on the aliegation of misconduct and without affording proper opportunity of hearing. Present is not a case where the petitioner was not given opportunity of hearing as has been pointed above because show cause notice was given to the petitioner and the procedure as contemplated in \Rule 14 of the Rules 1981 was followed before imposing penalty of removal from service? (14) The last submission made by learned counsel for the petitioner is that present is a case of double jeopardy inasmuch as the penalty has already been imposed on the petitioner vide order dated 23-1 0-1990 (Annexure A-2). lt is argued that as suspension has been specified as one of the penalties under Rule 13 of the Rules, 1981, penaity for alleged misconduct was already . imposed vide order dated 23-10-1990 and further removal from service vide c t s o a ch o a au ni t s i y , impugned order dated 05-11-1990 (AnnexureA-S) amounts to imposing two punishment in one single act of misconduct. This argument though attractive but on closure examination deserves rejection. A perusal of order dated 23-10-1990 (Annexure A—2) would disclose that it is purely an order of suspension simplicitor and not as a penalty. True it is that the order also nnds mention of Rule 13 (v) of the Rules, 1981. The substance of the order as distinguished from its form would show that order does not say that the penalty i/ has been imposed but it shows that the petitioner is suspended with immediate effect until further orders. Moreover, the said order dated 23-10-1990 also stipulates that during the period of suspension, the petitioner would be entitled to subsistence allowance along with other allowances as provided in Rule 53 (2) Part-1 of Madhya Pradesh Fundamental Rules. Closure examination of the provision contained in Rule 13 of the Rules 1981 would show that suspension for a period not exceeding 14 days at a time without entitlement to any wages has been specified as one of the penalties. There is no such stipulation in the orderdated 23-10-1 990 that the penalty of suspension for a period of 15 days without wages is imposed. lt would thus be clear that the order is not an order of penalty but it is an order of suspension. This is fortified from the fact that immediately two. days thereafter show cause notice proposing to impose penalty under Rule 13 clause (yii) of the Rules, 1981 was issued. Challenge to the order of penalty on the ground of double jeopardy is therefore not made out. (15) ln the result. l do not find any illegality in the order of removal from 1 service. The petition is therefore dismissed. No order as to costs. . Sdl— Mohan Judge r i 77 . .i /V ff, i " manindra shrivastaVa\ i Turnane 1: