Patna High Court
Case Details
Patna High Court CWJC No.1166 of 2012 (3) dt.01-02-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.1166 OF 2012 =============================================== MAHENDRA KUMAR SON OF SRI SACHHIDANAND MANDAL RESIDENT OF VILLAGE MANIKPUR, P.O. R.T. MOHAN, P.S. SIMRAHA, DISTRICT ARARIA. .... .... PETITIONER/S VERSUS RURAL 1.THE STATE OF BIHAR. SECRETARY, 2.PRINCIPAL DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3.DEPUTY DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4.DISTRICT DEVELOPMENT COMMISSIONER, ARARIA 5.DISTRICT MAGISTRATE CUM DISTRICT PROGRAMME OFFICER, ARARIA. DEVELOPMENT DEVELOPMENT SECRETARY, RURAL .... .... RESPONDENT/S
Legal Reasoning
=============================================== Appearance : For the Petitioner/s:Mr. Md.Imteyaz Ahmad, Adv. For the Respondent/s:Mr. Kundan Bhadur Singh SC-22 =============================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3/ 01-02-2013 Heard counsel for the parties. The petitioner is aggrieved by an
Decision
order dated 17.12.2011, whereby and whereunder, the District Magistrate cum District Programme Co-ordinator, Araria has terminated the contractual engagement of the petitioner on the basis of certain allegations of misappropriation or misuse of the Government fund. Learned counsel for the petitioner has submitted that the petitioner was not Patna High Court CWJC No.1166 of 2012 (3) dt.01-02-2013 2 afforded reasonable opportunity to file his show cause and in fact the order of termination being based on an allegation brought forward in the Social Audit Report of Jan Jagaran Shakti Sangathan, Araria could not have been made the basis for removal of the petitioner specially when no specific show cause notice in this regard was given to the petitioner. Mr. Thakur learned counsel appearing on behalf of the petitioner has, however, very fairly stated that one show cause notice was given to the petitioner which specifically did not contain the complaint of Jan Jagaran Shakti Sangathan, Araria or its Social Audit Report in which there was a different allegation received from the villagers and registered labourers. In the considered opinion of this Court, the show cause notice dated 18.10.2011 actually is the show cause notice relating to the order of removal of the petitioner, inasmuch as, from the reading of the show cause notice it would be clear that a number of registered labourers as also the villagers had made certain allegations on the basis of which the Programme Officer, Forbesganj has Patna High Court CWJC No.1166 of 2012 (3) dt.01-02-2013 3 submitted some report. As a matter of fact the petitioner on receipt of the show cause notice had not only appeared before the authority but had also demanded the copy of the documents including the FIR as also the report of the social audit. Thereafter the petitioner had submitted his show cause reply, copy whereof has been enclosed as Annexure-10. In view of the above, this Court would find that the uncontroverted averment in paragraph no. 14 and 16 of the counter affidavit reading as follows:- "Jan Jagran Shakti Sangatan made social audit of the schemes under Gram Panchayat Halhalia in presence of the villagers and the machinery of the Government. During course of social audit the villagers and labours holding Job Cards made complaint that the works have not been done according to estimate no payment of wage to the labours and also regarding realization of some rupees from the job Card holders in lieu of giving them the Job Card. On the basis of the above illegal act, the P.O. Forbesganj instituted F.I.R in Forbesganj P.S vide Forbesganj P.S case no. 235/2010 against the P.R.S and others. That with regard to the statements made in para no. 15 is concerned, it is stated that before filling the show cause by the fact mentioned in the F.I.R and the objections raised during the social audit were given to the petitioner by the programme petitioner, the Patna High Court CWJC No.1166 of 2012 (3) dt.01-02-2013 4 officer, Forbesganj." would not now entitle the petitioner to raise the question of any prejudice in the matter of filing of his show cause reply or the impugned order being bad on account of use of expression termination of the petitioner being based on allegations incorporated in the social audit report submitted by Jan Jagaran Shakti Sangathan, Araria. True it is that if any report was sought to be relied against the petitioner, it should have been clearly mentioned in the notice but then as is quite well settled by now that the rules of natural justice are not the codified laws and therefore the issue has always to be examined from the point of view of prejudice as was held by the Apex Court in the case of State Bank of Patiala & Ors. Vs. S.K. Sharma reported in 1996 SC 1669. Having thus arrived at the conclusion that the impugned order does not suffer from any material irregularity and that the petitioner was holding a contractual employment, this Court does not find any error in the order terminating the services of the petitioner, inasmuch as, there was a Patna High Court CWJC No.1166 of 2012 (3) dt.01-02-2013 5 complete loss of faith in the petitioner on account of alleged misappropriation or misuse of the Government fund which has been quantified in paragraph no. 10 of the counter affidavit in the following terms:- " That with regard to the statements made in para no. 8 of the writ petition is concerned, it is submitted that some after schemes, the advance of Rs. 8,87,000/- is with the convenor (P.R.S) Mahendra Kumar." completion of There is no denial of these clear averments made in the counter affidavit and this Court in view of the pendency of the criminal case also against the petitioner would not like to make any observation as that may prejudice either party. At the same time the criminal case against the petitioner is still pending and therefore if the petitioner has been removed by way of loss of faith, the order passed by the authority on 17.12.2011 shall not be treated to be stigma for the time being and on the basis of this order the petitioner will not be disqualified from any other assignments either in semi government or Government sector. The result of the criminal case or any other proceeding instituted Patna High Court CWJC No.1166 of 2012 (3) dt.01-02-2013 6 against the petitioner for recovery of the aforementioned amount of Rs. 8,87,000/- however, will not in any way be prejudiced on account of this order passed by this Court. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha, J) Ranjan