W £€§ii§iléf £E§£$H PETITIONER RESPONDENTS @ IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR é ? Li ‘4 /2009 f” W.P. (S) NO. Narendra Kumar Dubey, S/o. Shri Nandeshwar Dubey, aged about 44 years, R/o. Kusmi, District Surguja (CG) VERSUS 1] State of Chhattisgarh, Through: Secretary, School Education, Department of School Education/ \N/ SarVa Shiksha Abhiyan, D.K.s. Bhawana Raipur, District Raipur (CG) 2] /Mission Director, State Project Offlce, Rajeev Gandhi Shiksha Mission, Chhattisgarh Pension Bada, Raipur, District Raipur (CG) / 3] Director & District Mission Director, RajeeV Gandhi Shiksha Mission (Sarva Shiksha Abhiyan), Ambikapur, District Surguja (CG) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA 1] PARTICULARS OF THE PETITIONER (S): As stated above in the cause title. PARTICULARS OF THE RESPONDENT (S g: As stated above in the cause title. / / ' / Commissioner, Surguja Division, Ambikapur, Surguja, District Surguja (CG) Coordinator, 6]"J District Project Rajiv Gandhi Shiksha Mission (Sarva Shiksha Abhiyan), Ambikapur, District Surguja (CG) / HIGH COURT OF CHHATTISGARH AT BILASPUR Post for pronouncement ofjudgment & order on £5! @ay of January, 201 1. t r Sd/— Satish K Agnihotri ” u Judge 1 L .,,,., Writ Petition (S) No. 6244 of 2009 PETITIONER : Narendra Kumar Dubey. VERSUS RESPONDENTS : State of Chhattisgarh & Others. PETITIONER Writ Petition (S) No. 6245 of 2009 : Amrit Toppo. VERSUS RESPONDENTS : State of Chhattisgarh & Others. #:g HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No. 6244 of 2009 Narendra Kumar Dubey. VERSUS RESPONDENTS : State of Chhattisgarh & Others. Writ Petition (S) N0. 6245 of 2009 PETITIONER : Amrit Toppo. VERSUS > RESPONDENTS State of Chhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF ' INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present: Shri Rajendra Tiwari Senior Advocate with Shri Manoj Paranjpe Advocate for the petitIOner Shr1 N N Roy, Panel Lawyer for the State/respondent No 1 4 andS Shr1 A S Kachhwaha ADvocat for the respondent No 2 3 & 6 (Delivered on .297‘day of January, 20f 1) 1. Both the petitions involve common facts and question of law. thus, both the writ petitions W.P (S) No. 6244 and 6245 of 2009, are being disposed of by this common order. 2. Challenge in these petitions are to the order dated 13.10.2009 (Annexure P/1) passed in Vi.Ja.Appea1 No. 19/2009 and 20/2009, whereunder, the appeal filed against the order dated 17.02.2009 r (Annexure P/2) passed by the Collector cum District Mission Director, Rajiv Gandhi Shiksha Mission, Ambikapur, was confirmed. . The facts, in brief, as projected by the petitioners is that the petitioner in Writ Petition (S) No. 6244 of 2009, (hereinafter referred to as ‘the first petitioner’) and the petitioner in Writ Petition (S) No. 6245 of 2009, (hereinafter referred to as ‘the secondpetitioner ’) were initially appointed as Block Resource Coordinator and Accountant, respectively in District Project Office/Block Centre of Rajiv Gandhi Prathmik Shiksha Mission on contract basis on a flxed monthly pay. Appointment of the petitioners was in accordance with legal provisions and through proper selection process, pursuant to the advertisement dated 05.01.1996, after inviting applications from all the eligible candidates. The select list was published and the r petitioners were accordingly selected and appointed on their respective posts vide orders dated 17.01.1996 and 07.09.1998, respectively. After completion of the District Primary Education Project, Rajiv Gandhi Shiksha Mission, their services were taken by the District Project Officer, Rajiv Gandhi Shiksha Mission, Ambikapur vide order dated 31.12.2002 (Annexure P/4) duly sanctioned by the State Govemment, by order dated 10.04.2003 (Annexure P/5). The District Project Coordinator inspected the Block Resource Centre on 18.12.2008 and prepared a inspection memo at the back of the petitioners and submitted the same t0 the Collector (Annexure P/7). On the basis of inspection memo, the Collector issued a show-cause-notice on Axle: 22.12.2008 (Annexure P/8) calling upon the petitioners to submit response within a period of three days, stating that in¢the event, response is not found satisfactory, serious disciplinary action may be taken against them. The petitioners submitted their reply to the said show cause notice on 03.01.2009 (Annexure P/9). Thereafter, by the impugned order dated 17.02.2009 (Annexure P/2), they were removed from service. Thereagainst, the petitioners filed an appeal before the Commissioner under the provisions of Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966.‘The Commissioner, agreeing with the findings recdrded by the Collector, dismissed the appeal, confirming the order passed by the Collector, vide its order dated 13.10.2009 (Annexure P/l). l . Shri Rajendra Tiwari, learned senior counsel appearing with Shri Manoj Paranjpe, counsel for the petitioner, would submit that Collector has passed the order of termination on the basis of inspection report of the District Project Officer without supplying a Y copy of the report of the inspection, which was conducted at the back of the petitioners. The order of termination is not an order of termination simplicitor in terms of clause 4 of the appointment order, but is a stigmatic order, holding that financial irregularities have been committed by the petitioners. . Shri Tiwari would further submit that the allegations of financial irregularities are the foundation of the termination of the services of the petitioners. Even if the appointment of the petitioners were temporary, their services could not have been terminated simplicitor, when there are allegation of financial irregularities and dereliction of duty, without affording an opportunity of hearing to the petitioners. Shri Tiwari would next submit that in a case of stigmatic order, proper enquiry has to be held, aher supply of a copy of the investigation report and other relevant materials as the same is mandatory before passing stigmatic order of punishment. He would rely on a decision of the Supreme Court as well as this Court in Chandraprakash Shashi v. State of UPI, State ofPunjab & Others v. Balbeer Singh2, Shamsher Singh v. State of Punjabi and Dhaluram Kosariya v. State of Chhattisgarh & Others". 6. On the other hand, Shri A.S.Kachhwaha, learned counsel appearing for the respondent No. 2, 3 and 6 would submit that the impugned termination order was passed by the Collector in terms of clause 4 of the appointment order. Secondly, the services of the petitioners were temporary and they could have been terminated at any point of time, without notice. Shri Kachhwaha would further submit that on inspection of the records for the year 2007-2008 and 2008-2009, several financial irregularities and negligence 0n the part of the petitioners were reported by the inspection team and thereafter, a show-cause-notice was given to the petitioners to submit their response. Response was also filed, which were nOt found satisfactory, l (2000) 5 scc 152 , 2”(2004) 11 scc 743 3 AIR 1974 sc 423 4 2008 (III) MPJR-CG 110 7\ l 7 1 and as such, the impugned termination orders were passed-in terms of clause 4 of the appointment order. He would next contend that the petitioners have already admitted their guilt in their response and have submitted that if any mistake was committed, the same may be condoned. Shri Kachhwha relies on a decision of the Supreme Court in Delhi Transport Corporation'v. D.T.C. Mazdoor Congress & 0thers5. 7. Shri Roy, learned Panel Lawyer appearing for the State/respondent No. 1, 4 and 5 would make similar submission as that of the learned counsel for the respondent No. 2, 3 and 6. 8. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 9. The appointment of the petitioners was, though temporary, but in accordance with the provisions of law, by inviting applications from the eligible candidates and after holding selection process. Thus, the , appointment of the petitioners was not illegal. The inspection team has inspected the records, indisputably without information and in absence of the petitioners. The show cause notice was entirely based on the inspection report submitted by the inspection team. The respondents have neither in their pleadings, nor orally, denied the averments of the petitions to the effect that enquiry report and other relevant documents were never supplied to the petitioners, alongwith the show cause notice. Further, reply within three days was also unreasonable. s (1991) Supp. 1 SCC 600 x Reasonable time ought to have been granted to the petitiohers. Thus, the notice cannot be held as a proper show cause notice. In such a case, it is well settled that if the order of punishment is stigmatic, even in case of temporary appointment, or during probation, ad-hoc or contract basis, proper opportunity of hearing after holding proper enquiry to establish the allegations of financial irregularities or negligence, is mandatory. . 10. The identical issue came up for hearing before this Court inDhaluram Kosarzy‘a (supra), wherein this Court, after having considered various decisions of the Supreme Court, observed as under: “l3. The Supreme Court in the case ofRadhey Shyam Gupta vs. U.P.State Agra 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 tennination 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 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 armexures. 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 enquiry was conducted. . .” 15. The Supreme Court in the case of Nar Singh Pal vs. Union oflndia 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 gthe 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 tennination 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 l2, as under:— “12. Now, it is well settled that the temporary govemment . servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary govemment servants have no right to hold the post and 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 Dhz'ngra,Vs. Union of India). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Govemment 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 services 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 order to 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 (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 service of the petitioner was not a termination simplicter but on the basis of the alleged irregularities and misconduct cbmmitted by the petitioners.” ll.The ratio laid down in Dhaluram Kosariya (supra) has been referred with approval in Chandikeshwar Singh v. State of Chhattisgarh & Others’s, 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 of the Rules, 1999.” 12.In Samsher Singh (supra), the Supreme Court has clsarified the distinction between the term ‘motive’ and ‘foundation’ holding that innocuously worded order can be passed on foundation of grave charges. 6 2007 (3) MPHT 106 (CG) 13.In Delhi Transport Corporation (supra), 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 of the 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 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.” l4.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 termination order is not a termination simplicitor in terms of clause 4 of the appointment order, 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 termination orders are unsustainable. 15.In View of the above, the impugned orders dated 13.10.2009 (Annexure P/l) and 17.02.2009 (Annexure P/2) are quashed. m i / (SS However, liberty is reserved to the respondent authorities to take appropriate steps, if so advised, after affording proper opportunity of hearing to the petitioners and after following the principles of law, as aforestated. 16.Both the writ petitions are allowed to the extent indicated above. No order asto costs. :p; Satish‘K. Agn‘x‘hmri C 5 Jtldge h J , I 4 l ~ [Sd/. Amit