]: i! IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION N0. OF 2004. PETITIONER RESPONDENTS: _VERSUS r^ ^ ^J w/ -* -a ** ••A<." ^M^ /^ 67^/^ %¥v .•' ay -••/ y -^ •? ^^ Shiboram Yadav, Son of Kharkhaar Ram Yadav, aged about 36 years, resident of Sheettala Para, Tahil & Post Chura, District; Raipur, 1. State of Chhattisgarh through the Collector, Raipur. 2. The Commissioner, Tribal & Scheduled Caste Development Department, Mantralaya Raipur. 3. The Principal, Govt. Higher Secondary School, Chura, Distt: Raipur. 4. The Project Administrator, Integrated Tribal Welfare Project, Ghariyaband, District: Raipur. WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA. \. O! HIGH COURT OF CHHAmSGARH AT B1LASPUR WritRetition No. 4548 of 2004 Petitioner Sbiboram Yadav Versus Respondents State of CMiattisgarh through fhe Collector and others ^?' Post for order on f 7 Noveinber, 2006. Sd/- Satish K. Agnihotri Judge ^.11.2006 ^: -\ ^\) HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petitioa No. 4548 of 2004 Petitioner Shiboracu Yadav Versus Respondents State of Chhattisgarh tbrough the CoUcctor and othcrs SB: Hon'ble Mr. Justice Satlsh K. Agnihotrl, J Shri P.S. Koshy, Advocate for the petitioner. Shri A.S. Kachhawaha, Govemment Advocate for the Respondents/State. O RDER .^- ( 17' November, 2006) The foUowm.g order of the Court is passed by Satish K. A@tlltot»t,J. The preseat petition filed zuider Article 226/227 offhe Constitution of India challenges the validity of the unpugned ori.er dated 22.5.2004 (Annexure P/1) whereby fhe petitioner was renioved froiu service with immediate effect under Rule 13 (vii) of tiie Departiaent Workcharged and Coiitingency-paid Einployees Recruitnient aud Conditions of Service Rules, 1975 (for short "fhe Rules, 1975"), for having been passed wifhout followiag principles of natural justice aud fair-play in action. The iacts ofthe case, in nutsheU, are fhat the petitioner was euiployed as Chowkidar by the respon.de.nt No. 4 aud was posted wifh the respondeut No. 3 w.e.f. 13.5.1993 on monfhly basis at coUector rate as ''Contingency-paid Employee*'. A show cause D^otice was issued on 1.5.2004 (Annexure P/2) asto why fhe petitioner be not removed from senyice for haviug couunitted uiisconduct on the ground that a siim. of Rs. 4,22,908/- kept ia tlie office, was stolen from fhe office. The petitioner submitted his reply (Annexure P/3) denyuig all the allegations and charges leveUed agaiast him. The respondents aUegedly conducted fhe prelimiaaiy enquiiy ou fhe basis of fhe reply subinitted by the petitioner and passed fhe finat order of removal of service under Rule 13 (vii) of the Rules, 1975 wifiiout affordiag an opportunity of hearing to the petitioner. The petitioner fiii-fher inade a representation dated 22.5.2004 (Annexune P/4) befone the CoUector, Raipur for holding ftie departinental enquiiy before ituposing the severe punishiaeiit of reuioval fiioni service. The CoUector, Raipur ignored coinptetely the representation ffled by the petitioner. Being aggrieved, the petitioner has filed tbis petition unpugnmg fhe order dated 22.5.2004 (Anaexure P/ 1) and furfher prayuig that fhe petitioner be reuistated in service with faU bacls: wages and aB consequential reliefs. Shri P.S. Koshy, leanied counsel appearing for fhe petitioner would subniit fhat the petitioner has been peualized for fhe fault of the office. The said amount Rs. 4,22,908/- was uot in fhe knowledge of tlie petitiDner. One Shri Saatosh Chourasiya, a clerk ui fhe office of the respondent No. 3 allegedly withdrew fhe wages of fhe staff on 7.4.2004. It was atleged that Shri Santosh Chourasiya had brought the wages iil his rooni and had placed it in fhe Alinirah of his rooau, which was luider his control. The aUeged amount was stolea iu the night of 7.4.2004. It was not verified aad proved as to whether the bag wherein fhe alleged amount was kept was actualty containing Rs. 4,22,908/-. On verification, it was found tliat an aaaount of Rs. 79000/- was stffl tyuig in fhe said AIinirah after the aUeged fheft had taken place. The respondents/aufhorities without affording an opportunity of hearing to fhe petitioner, on the basis of some preliminaiy enquiry imposed the severe punishment of removal from service. According to leamed counsel for the petitioner, this <^ rr: \ would tantamouut to violatiou ofprinciples ofnaturaljustice and fair- play ui action. Thus, fhe petition deserves to be allowed wifh fuU back wages. 5. Shri A.S. Kachhawaha, leai-ned Goveninient Advoeate appearuig for the respondeats/State would submit, per contra, that fhe intemal enquiry conduct to find out fhe alleged inisconduct coininitted by the petitioner was ex parte. It is furfher stated clear tih.at the petitioner was not served wifh. ftie charge-sheet and ftu-ther he was not afforded an opportunity of hearing enabluig him to put forward his case befone fhe aufhorities. It was next contended that snice the iiiipugned order was passed after considering reply of the petitioner. There was no error or uregularity iit passing fhe impugned order. 6. I have heard leamed counsel for the parties and perused tfae petition, retum aad docuinents appended to the petition as also to the retum. It is admitted position that no departinental enquiry was held and no opportuiuty of hearing was afforded to the petitioner. The unpugned order was passed on fhe basis of fhe reply subiaitted by fhe petitioner. 7. Rules, 1975 are frauied in exercise of the powers conferred by the pnoviso to Article 309 of the Constitution of India, which govenis service conditions of Contingency-paid Eiaployees. The petitiouer was Contingeacy-paid Einployee. The respondents/authorities have invoked jurisdictiou to reniove tlie petitioner under Rule 13 (vii) ofthe Rules 1975. The Rule 14 offhe Rules 1975 provides for procedure for imposing penalties, which reads as under:• "14. Procedure for iniposing penalties-(ij No order imposuig any of fhe penalties specified ia clauses (vi), (vii) aad (viii) of Rule 13 shatl be passed except after- (i) the eiaployee is infoi-med in writing, when possible to do so, of fhe proposal to take action against him and of the aUegations on which it is proposed to be taken. (ii) the employee is, as soou as possible, given au opportuaity to explaui his position in regard to fhe aUegations niade against Iiim. (ui) such explanation, ifauy, is taken into consideration. Provided further that (1) no person shaU be dismissed without the order of fhe conipetent aufhority and provided fiirther fhat (2) it shalt not be necessaiy to do so where tiie Head of the Departmeut finds it necessary to reiaove an einployee froin service on the ground ofsecurity oftlie State. (2) An order in writing refen-ed to ui sub-rule (1) shaU take efiFect iminediately oa deUveiy to the einployee and in fhe event of refusal by the einployee to accept deliveiy of it, afExed on fhe notice board of the estabUshment on which he is bome and such aflSxing of the same on the notice board wffl deemed to have been served on him. 8. The Supreme Court ia the case ofAaoop Jaiswal Vs. Goverameat of India aad aaother1 has observ'ed iu para 12, as under;- "12. It is, therefone, now weU setfled fhat where the form of the order is inerely a camoufl^e for au order of disinissal for miscouduct it is ahways open to ttie court before which ttie order is challenged to go behiad the fonn and ascertain fhe true charact.er of fhe order. If tiie court hoMs fhat fhe orier though in the form is inerely a detenmination of eiaploynient is in realily a cloak for an order of puiiishment, fhe conrt would not be debarred, merely because of the form of the order, in giving effect to fhe rights conferred by law upon fhe employee." 9. The Supreme Court in the case of Chandra Prakash SIiahi Vs. State of U.P. and others2 has observed in para 12, as under: "12. Now, it is weU settfcd ib.at the temporary govemment servants or probationers are as uiuch entifled to the protection of Article 311 (2) of tlie Constitution as tlie permaiient employees despite tlie fact that temporaTy govemment servants have no right ^' to hold the post and fheir services are liable to be tennmated at aay time by giving thenu a inonth's notice wifhout assi^ning any reason eifher iu terms of the contract of service or under ffae relevaat statutoiy rules regulating the terms and conditions of such service. The courts can, therefore, lift the vefl of an irmocuousty-worded order to look at the real face of fhe order and to find out whefher it is aa innocent as worded. (Sec: Parshotata Lal Dhingra v. Union of India.) It was explained in this decision tiiat uiefficiency, negligence or inisconduct Baay have been the factors for inducing fhe Oovenunent to tenninate fhe services of a teinporary eniployee under fhe tenms of fhe contract or under the statutoiy Seryice Rules regulating fhe tenas and conditions of service which, to put it differeufly, may have been the moti.ve for terminatuig tiie services but the niotiwe by itsetf does not inake the order punitive unless fhe order was "fouiided" on those factors or ofher disqualiGcations." 10. The Supreme Court ia the case of Pavanendra Narayan Verma Vs. Sanjay Gaadhi PGI of Medical Sciences and aaother3 has observed in para 21, as under' "21. One of the jiidicially evolved tests to determine whether in substance an order of termination is punitive is to see whefher prior to the termination fhere was (a) a fuU-scale formal enquuy (b) into aBegations involving nioral turpitude or luisconduct which (c) culrainated in a finding of guBt. If all three factors are present the termiaation has been held to be punitive irrespective of the forra of the tennination order. Conversely if aay one of the three factors is niissiag, the termination has been upheld." 11. The Supreme Com-t in the case of State of Punjab aiid others Vs. Balbir Sin^i4 has observed in para 7, as unden- "7. Thus the principle that in order to detennine whefher ttie niisconduct is inotive or foundation oforder oftennination, the test to be appUed is to ask the question as to what was fhe '•object of the enquiiy". If an enquiiy or an assessment is done with fhe object of findmg out any misconduct on the part of fhe eiaployee Yw and for fhat reason. his seryices are termiriated, then it woiild be punitive in nature. On the ofher hand, if such an enquiiy or an assessnient is aimed at detenninuig the suitabilily of an employee. for a particular job, such tennination would be termination siinpliciter and not punitive iu nature. Ttiis principle was laid down by Shali, J. (as he fhen was) as eariy as 1961 ia the case of State of Orissa v, Ratu Narayan Das7. It was held fb.at one should look in.to "object or purpose of the enquiry" aud not nierely hold fhfi termiaation to be punitive inerely because of an autecedent enquiry. Whether it (onler of tennination) amouuts to an. order of disuiissal depends upon fhe uature of fhe euquiry, if any, fhe proceedings taken fherein and the substeiice of the fiaal order passed on such enqiiuy.........° 12. The The Supreme Court in the case of State of Puajab aad others Vs. SuUnrinder Sit^i5 has observed iu para 19, as unden- "19. It inust be bome m. niiud ttiat no euiployee whefher a probationer or temporaiy will be dischai^ed or reverted, arbitrarily, without any rhyiae or reason. Where a superior ofiicer, in order to satisfy himself whether the einployee concemed should be continued in service or not inakes inquiries for this purpose, it would be wrong to hold that the inqiiuy which was held, was really intended for the purpose of unposing punishiaeut. If in eveiy case where soiae kind of fact-findiag inquiiy is naade, wherein the employee is either given an opportainity to explain or the inquiry is held behmd his back, it is held that tlie order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concemed should be retained in service or not would run fhe risk of being dubbed as an orier of punishiaent........ 13. Tbe inipugned order is punitive ia nature and ftie iiapugned ori.er has beea passed in violation ofArticle 311(2) offlie Coastitution oflndia and further violation of fhe principles of natural justice aad fair play in action. ^" [^- 14. Iu ttie facts of the case when fhe service of the petitioner has been removed without holding proper formal enquiry to find ont guflt of the petitioner. It was not established that the petitioner was involved in the aBeged fheft in any inanner. Thus, the order of removal of fhe petitioner froin semce wifhout holduig a fonnal enqiiiiy and without afFordmg him opportunity of hearing negates fhe principlea of natural justice and fau'-play iu action. 15, For fhe reasons and analysis hereinabove, the unpiigned orier dated 22.5.2004 (Annexure P/1) is quashed. On the question of grant of ^ back wages, no foundation has been laid down with reganl to the gainful emptoyme.nt of the petitioner. Since fhe petitioner has been restrained from workine and eai-ning his liveKtiood, tbe petitioner ia entitled to grant of 40% back wages which woiild subserye ttoe interest ofjustice. 16. For ttie reasons stated-above aad dictet laid down in varioiis cases, cifed above, the petition is aUowed with 40% back wages. In the facts and circumstances ofthe case, there shall be no order as to costs. Sd/- Satish K. Agnihotri Judge E£J;IU »{(1984)28cc369]. 2{(2000),5SCC1525 3{ (2002) 1 SCC 520} ,1(2004) 11 SCC 743}