Mukesh Kumar v. The State Of Bihar & Ors.

.... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 27-02-2013 Heard learned counsel for the parties. Assailing the impugned order dated 17.7.2012, which reads as follows:- ^^bl dk;kZy; ds vkns”k la[;k 69 lg&ifBr Kkikad & 1904] fnukad& 13-07-2012 ds dze la0& 18 ij vafdr Jh eqds”k dqekj] firk& Jh fouksn izlkn Hkxr dk iqufuZ;kstu foHkkxh; vkns”k la[;k vk0l0&22@fu0l0¼nj0½& 16&05@2012@100 lg ifBr Kkikad& 752] fnukad& 07&07&2012 ds vkyksd esa jn~n fd;k tkrk gSA ;g vkns”k fnukad 13-07-2012 ls gh izHkkoh gksxkA** learned counsel for the petitioner has submitted that while it may be true that the petitioner was continued as a Junior Engineer on Patna High Court CWJC No.1610 of 2013 (3) dt.27-02-2013 2 contract basis with fixed tenure for a period of one year pursuant to his order of appointment dated 4.7.2011, once he was continued in service and was also granted extension of the tenure by a further period of one year by another order dated 13.7.2012, which in turn could have enabled him to continue at least up to 12.7.2013, his premature termination on the basis of an order passed by the Engineer-in-Chief dated 7.7.2012 is wholly illegal specially when no show-cause notice was given to the petitioner prior to premature termination of his service. This Court, having noticed the aforesaid question relating to violation of principle of natural justice, in its order dated 28.1.2013 had granted four weeks time to the respondents to file their counter affidavit but, learned counsel for the State has submitted that he could not receive any instruction. Thus in view of the admitted position as it appears from the records of this case specially Annexure Nos. 1, 2 & 3 read with Annexure-4, the order of suspension of the petitioner by the Engineer-in-Chief on 7.7.2012, that while the petitioner having completed one year tenure was granted extension for further period of one year by an order of the Chief Engineer dated

13.7.2012, the Engineer-in-Chief, on receipt of certain adverse report regarding the petitioner having been found prima-facie Patna High Court CWJC No.1610 of 2013 (3) dt.27-02-2013 3 responsible for some misconduct, had placed him under suspension by an order dated 7.7.2012. Ordinarily, after the completion of tenure of one year of the petitioner, in view of the earlier order of appointment of the petitioner dated 4.7.2011, had come to an end on 3.7.2012 and when the petitioner was not even granted further extension till 3.7.2012, his service could have been dispensed with applying the doctrine of pleasure in the event of any unsatisfactory service record or misconduct because the petitioner at best was a contractual employee. That, however, was not done and on 7.7.2012, even when the tenure of the petitioner had come to an end, he was sought to be suspended under the order of Engineer-in-Chief. This Court could have ignored such order of suspension passed after completion of period of one year tenure but now when the Chief Engineer of the department had ultimately issued the order dated 13.7.2012 granting extension to the petitioner by a further period of one year, which in turn could have enabled the petitioner to continue in service on 12.7.2013, his premature removal by the impugned order dated 17.7.2012 must be held to be bad specially when there is no whisper in the said order dated 17.7.2012 that the petitioner was even confronted by way of any show-cause notice. Patna High Court CWJC No.1610 of 2013 (3) dt.27-02-2013 4 It has to be kept in mind that the petitioner was not a regular employee and thus, there was no need of initiating a departmental proceeding because the petitioner as a contractual employee is not entitled to protection under Article 311(2) of the Constitution of India but, if the respondents had contemplated a departmental proceeding by the order dated 7.7.2012 as contained in Annexure-4, the petitioner could not have been shown the door unceremoniously on the basis of the impugned order dated

17.7.2012, even without giving a show cause notice. In that view of the matter, this Court would quash the impugned order as contained in Annexure-1 dated 17.7.2012 and would remit the matter back to the Principal Secretary of Water Resource Department to decide the issue relating to further continuance of the petitioner in service. In the event Principal Secretary would find that it is an act of misconduct on the part the petitioner which would disentitle the petitioner to continue in service on contract till 12.7.2013, he would issue a show cause notice to the petitioner and pass his order after considering the show cause reply filed by the petitioner. This exercise must be completed by the Principal Secretary within a period of three months from the date of receipt/production of a copy of this order. Patna High Court CWJC No.1610 of 2013 (3) dt.27-02-2013 5 Till such period, the petitioner may report to the office of Engineer-in-Chief but he shall not be given any work on account of his being placed under suspension which order of- course would re-emerge on account of quashing of the impugned order dated 17.7.2012. The issue of payment of his remuneration would however abide by the order passed by the Principal Secretary, Water Resources Department. With the aforementioned observations and direction, this application is disposed of. Rishi/- (Mihir Kumar Jha, J)