IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10214 of 2009 PRAVEEN KUMAR, S/O DR. RAJENDRA PRASAD MISHRA, R/O P/A-4, BOOTY, RANCHI-17, P.S.- SADAR RANCHI, DISTRICT-RANCHI. ……………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND CHAIRMAN, STATE HEALTH SOCIETY, BIHAR, PATNA. 2. THE DISTRICT MAGISTRATE-CUM-CHAIRMAN, DISTRICT HEALTH SOCIETY, ROHTAS AT SASARAM, DISTRICT-ROHTAS. 3. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, ROHTAS AND SECRETARY TO DISTRICT HEALTH SOCIETY, ROHTAS, AT, P.O. AND P.S.- SASARAM, DISTRICT-ROHTAS. 4. THE MEDICAL OFFICER-IN-CHARGE-CUM- CHAIRMAN, KALYAN SAMITI, SHEO SAGAR PRAKHAND, SHEOSAGAR, P.S.-SHEOSAGAR, DISTRICT-ROHTAS. 5. THE DISTRICT PROGRAMME MANAGER, DISTRICT HEALTH SOCIETY, AT AND P.S.-SASARAM, DISTRICT-ROHTAS. …………………RESPONDENTS. ----------- 3 20.09.2010 By Annexure-10, a communication of the Civil Surgeon-cum-Chief Medical Officer, Rohtas dated 01.10.2008, petitioner was informed that, under the orders of the Collector-cum-Chairman of the District Health Society, Rothas his services are being dispensed with, as he was found absent from duty on 22.07.2008 while working as Block Health Manager of Primary Health Centre, Shivsagar in the district of Rohtas. This order has been challenged by the petitioner in this writ application. Petitioner was appointed as Block 2 Health Manager on contract basis on fixed honorarium, vide Annexure-1 dated 24.03.2007, after due selection held for the purpose. Accordingly, he joined on 02.04.2007. Vide Annexure-5, he received a show cause notice under the signature of the District Collector. In the notice, it was mentioned that the Collector had held surprise inspection of the Primary Health Centre on 18.07.2008 and was informed that the petitioner had not attend the Centre on 17.07.2008 and 18.07.2008 without any authorization. The notice also mentioned that petitioner had not sent any information to the District Programme Manager nor had submitted any application for leave. Hence, he was asked to show cause by 10.08.2008, as to why he should not be removed from his post and, as to why, due to unsatisfactory service 20% of his salary should not be deducted. By this show cause notice petitioner was given time till 10.08.2008 to file his reply. However, from Anneuxre-4 it appears that meeting of the District Health Society under the Chairmanship of the District Collector was held on 09.08.2008 itself and it was 3 resolved in the meeting that services of the petitioner should be dispensed with and 20% of his salary should be deducted. Clearly, this decision was taken by the Society prior to the time granted to the petitioner for filing his explanation. After this decision of the Society, a letter was issued under the signature of the District Collector on 11.08.2008, as contained in Annexure-6, by which, the dates in the show cause notice were corrected. It was stated that the dates mentioned in the show cause notice was a typing mistake and the date of his inspection mentioned in the show cause notice dated 06.08.2008 as 18.07.2008 be read as 22.07.2008, and the date of absence of petitioner mentioned in the said notice as 17.07.2008 and 18.07.2008 be read as 21.07.2008 and 22.07.2008. This letter was issued to the petitioner clearly after the decision had already been taken by the District Health Society for dispensing with his services and for deducting his 20% salary. It appears that earlier show cause notice was forwarded to the petitioner by the office of the Civil Surgeon through letter 4 no.2003 dated 04.08.2008. In reply, petitioner submitted his explanation, as contained in Annexure-7 dated 12.08.2008, in which, he stated that 17.07.2008 was a holiday and on 18.07.2008 he had gone on supervision along with the Medical Officer in connection with ‘Muskan’ Programme. The corrected notice dated 11.08.2008 was also received by the petitioner and in reply to the same he submitted his explanation, as contained in Annexure-8. In his explanation, he stated that on 22.07.2008 and 23.07.2008 he was on leave on account of death of one of his relations as he had to attend the shradh ceremony at Dhanbad. It was stated that, he had submitted his leave application to the Incharge Medical Officer and after its acceptance he had proceeded on leave. Along with the said explanation, he enclosed photocopies of his leave application as well as the relevant pages of the casual leave register. However, by the impugned order, he was communicated that the District Collector had found his explanation as unsatisfactory, and, therefore, had passed orders for dispensing with his services. 5 Learned counsel for the petitioner submits that even prior to the date, by which, petitioner was asked to submit his reply to the show cause, the respondents had taken a decision to dispense with his services and deduct his 20% salary which is in clear violation of Principles of Natural Justice. He submits that in reply to the letter containing corrected date of show cause he had submitted his explanation wherein he had clearly stated that he was on casual leave on 22.07.2008 and 23.07.2008 after acceptance of his application for casual leave by the Incharge Medical Officer. With this explanation, he had also enclosed duly accepted leave application and photocopy of casual leave register. It is apparent that these documents and his explanation was not considered by the District Collector and in the light of the decision already taken by the Society on 09.08.2008 his services were dispensed with. He submits that this is clearly a non-application of mind by the District Collector and, therefore, the order dispensing with the services of the petitioner, stands vitiated on that account 6 also. He submits that on the allegation of his being unauthorizedly absent from duty, his services have been dispensed with and, therefore, the same casts a stigma upon the petitioner. Counter affidavit has been filed in this case. It is contended that the petitioner’s engagement was on contract basis for two years under the State Health Society, Bihar which is a Society registered under the Cooperative Societies Act and, therefore, he was not a Government servant. Therefore, provisions of Article 311 (2) of the Constitution will not apply in the case. It is contended that, as per the bye-laws of the Society the contractual services of the petitioner could be terminated on giving one month’s notice or giving one month’s honorarium in lieu of the same. Learned counsel for the respondents in respect of his submission has referred to a judgment of this Court in the case of K.C.Thomas Vs. R.L.Gadeock and Ant. reported in AIR 1970 Patna 163, and contend that a registered Society is governed by its own by-laws and the rules in respect of service conditions of 7 Government servants and provisions of Article 311 (2) of the Constitution does not apply to the employees of the Society. It is true that the employees engaged by a Society are not Government servants and holder of civil posts. Therefore, the protection of Article 311 (2) of the Constitution is not available to them. Nonetheless the fundamental Principles of Natural Justice and fair play does apply to any employee of the Society also. If the said Principles are applied in the case of the petitioner, it is apparent that the fair opportunity was not given to the petitioner and his services were dispensed with only on account of his absence from duty for one day for which he had furnished some explanations which was apparently not considered. By the first show notice, petitioner was allowed time till 10.08.2008 to submit his explanation. The proceeding of District Health Society dated 09.08.2008 shows that even without waiting for his explanation, decision was taken to dispense with his services and deduct his 20% salary. This clearly shows that the Society was in a hurry 8 to take decision in respect of the petitioner and, as the meeting was chaired by the District Collector, obviously, the District Collector prevailed upon the Society to come to that decision even without waiting till the time granted to the petitioner. The District Collector had himself given him time till 10.08.2008 to file his reply, but this decision shows that he was carrying some bias against the petitioner on account of which he hurried through the decision for dispensing with his services without waiting for reply of the petitioner. Secondly, in respect of his absence on 21.07.2008 and 22.07.2008 petitioner had furnished an explanation, vide Annexure-8, which as appears to this Court was worth considering. The typed copy of the said application for leave and photocopy of the causal leave register, documents which were annexed with his explanation as contained in Annexure-8, are annexed as Annexure-3 and 3/1. The same shows that the application of the petitioner was received on 21.07.2008 and leave to the petitioner for 22.07.2008 and 23.07.2008 were granted. These two documents have not been challenged or 9 disputed by the respondents in the counter affidavit. Therefore, even if it is not appropriate for this Court to make any comment with regard to authenticity and genuineness of the documents, this much is clear that the same ought to have been considered by the District Collector along with his explanation, as contained in Annexure-8, before passing any order for dispensing with his services. It is true that in contractual service, service of the employee is governed by the terms of the contract which did contained provision for dispensing with the services of the contracted employee upon one month’s notice or, in lieu of the same, on payment of one month’s honorarium. That provision is for dispensing with the services of an employee without any stigma or allegation against him and in the exigencies of the situation. The impugned order shows that the services of the petitioner were dispensed with on allegations which casts a stigma and, therefore, petitioner was entitled for a fair opportunity to explain his conduct and was entitled for consideration of his explanation 10 before any decision could be taken against him. In view of the above discussions and consideration, this Court finds that the order dispensing with the services of the petitioner, as contained in Annexure-8, is not sustainable in law. In the circumstances, the same is quashed. As per the terms of the contract the petitioner would have been continued as Block Health Manager till 02.04.2009. Learned counsel for the petitioner submits that, thereafter, the contract of all other Block Health Managers have been renewed by the respondents. Since on 1.10.2008 the petitioner is not in service, therefore, this Court is not inclined to allow full honorarium of the period from 01.10.2008 till 02.04.2009 the date till when he would have continued. However, this Court directs the respondents to consider the petitioner on suspension during the period and allow him 50% of his honorarium of the period from 01.10.2008 to 02.04.2009. On 02.04.2009, his suspension shall be treated to have been withdrawn and he shall be treated to have 11 been exonerated from all the charges and respondents shall consider his case for further extension or renewal of contract without being prejudiced by the impugned order of dispensing with his services and without being prejudiced by the said allegation of his absence from duty for one day. His case shall be considered at par with other Block Health Managers and if their services or contract have been renewed the case of the petitioner shall also be considered for the same. The writ application is allowed with the aforesaid observations and directions. Arvind/ ( J. N. Singh, J.)