Ku. Anita Singh v. Madhya Pradesh Adivasi Vitta Evam Vikas Nigam & Ors.

HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 76 of 1999 PETITIONER Ku. Anita Singh. VERSUS RESPONDENTS Madhya Pradesh Adivasi Vitta Evam Vikas Nigam & Another. Post for pronouncement oforder on ./3. day ofJuly, 2012. A, Sd/- Satish K. Agnihotri Judge \ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 76 of 1999 PETITIONER Ku. Anita Singh. RESPONDENTS VERSUS Madhya Pradesh Adivasi Vitta Evam Vikas Nigam & Another. PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'bIeShri Satish K. Asnihotri, J. Present: Shri Rakesh Pandey, Advocate for the petitioner. Smt. Anju Ahuja, Advocate for the respondent No. 1. None for the respondent No. 2, despite service ofnotice. ORDER (Delivered on .7JAday ofJuly, 2012)

1. By this petition, the petitioner seeks quashing of the order dated

06.05.1998 (Annexure P/5), whereby, the Managing Director of the Madhya Pradesh Adivasi Vitt Evam Vikas Nigam, Bhopal, the respondent No. 1, has terminated the petitioner from ser^ice on the ground that her appointment was made de hors the mles and farther, her ser^ices were not/found satisfactory. The petitioner further seeks a direction to the respondent authorities to reinstate her back in service with all consequential benefits.

2. The facts, in brief, as projected by the petitioner are that the petitioner was initially appointed as Lower Division Clerk on contract basis for a period of two years w.^./ 14.08.1995 and posted at Branch Office, Raipur, by the respondent No. 1. The then, Govemment ofMadhya Pradesh, by memo dated 29.11.1996 (Annexure P/2) sanctioned various temporarily till i ,-^ '^-i9^ '•-^a'y 28,02,1997 and to open branch offices in various districtSo Condition No. 6 of the said memo provided that the employees working on contract basis, could be regularized under the specified norms of the State. Pursuant to the said policy decision, respondent No. 1 constituted a Committee for verifying the eligibility of the candidates for the purpose of regularization. The recommendation of the Committee was placed before the respondent No. 1, and thesame was accepted. As a sequel, ser^ices of 18 employees including the petitioner, were regularized vide order dated 29.07.1997 (Annexure P/3), pursuant to which., the petitioner j6ined her post on 16.09.1997 (Annexure P/4). Later on, vide order dated 06.05.1998 (Annexure P/5), the services of the petitioner was terminated without issuing any prior notice or opportunity ofhearing.

3. Being aggrieved, the petitioner filed a petition before the Madhya Pradesh State Administrative Tribunal, Bench at Raipur, (for short tthe Tribunal'). According to the petitioner, since the Tribunal had no jurisdiction, and as such, the said petition was withdrawn by order dated 10.12.1998 (Annexure P/6). Thereafter, the writ instant petition was filed on 06.01.1999, seeking the above stated reliefs before the High Court of Madhya Pradesh, Jabalpur. Afiter bifurcation of the State of Madhya Pradesh, the case was transferred to this Court.

4. Shri Pandey, learned counsel appearing for the petitioner would submit that the impugned order is violative ofArticle 14 and 16 of '.i ':• 'y , ^ ^ . ...^" -» ; the Constitution of India. The acts of the respondent authorities is mala fide, discriminatory and passed in a whimsical manner^ without affording any oppbrtunity of hearing before the impugned order was passed. He would further submit that the juniors to the petitioner continued to work with the respondents, however, the petitioner has been singled out for termination on extraneous consideration. Even ifthe appointment ofthe petitioner was found to be not in accordance with the provisions ofthe rules, even then, an enquiry ought to have been made before terminating the ser^ices of the petioitner* It would be next contended that one Rajendra Singh who was also regularized alongwith the petitioner, also suffered a termination in the same manner as that of the petitioner. On his filing a writ petition being W.P. No. 2044/1998, this Court allowed his petition by order dated 16.11.1998 and held his termination to be illegal and the employee has already been reinstated.

5. On the other hand, Ms. Ahuja, leamed counsel appearing for the respondent No. 1 would submit that the petitioner is not entitled to regularization on three counts, firstly, the entire establishment of the respondent in itself was temporary, secondly, clause 6 of the memo dated 29.11.1996, pertaining to regularization of the contract appointees is not applicable in case of the petitioner and thirdly, the petitioner did not complete 2 years of contractual services on the date of her regularization. Further, due to her irregular and negligent performance of her day to day duties, functions and responsibilities, the impugned order was passed. lt^s^- N <-...; There was no necessity for making any enquiry for it and the petitioner was removed from her ser^ice.

6. None appeared on behalfofthe respondent No. 2, however, retum has been filed. In the retum, it is contended that the services ofthe petitioner were terminated prior to formation of the State of Chhattisgarh. Since she was not in the service at the time of bifurcation of the State of Chhattisgarh, she was not allocated to the State of Chhattisgarh. It appears, that the retum filed by the respondent No. 1 has been relied on by the respondent No. 2 also and prayed for dismissal ofthe petition.

7. Lastly, Shri Pandey would further submit the objection regarding maintainability bf this petition was never raised by the respondents. The original application filed before the Tribunal was not maintainable as under the notification issued by the State Govemment under section 15(2) ofthe Administrative Tribunals Act, 1985, the respondent No. 1 was not included being an autonomous body. Further, in an identical situation, Rajendra Singh, after withdrawal of the original application from the Tribunal an filing of the writ petition before the High Court was allowed. He would rely on decision of the Supreme Court Surguja Transport Service v. State Transport Appellate Tribunal, M.P. Gwalior & Others and Haryana State Cooperative Land Development Bank v. Neelam . ' 2 (1987) 1 SCC 5 (2005) 5SCC 91

8. Heard leamed counsel appearing for the parties, pemsed the pleadings and documents appended thereto.

9. ON MAINTAnSTABILITY: On the question of maintainability of the writ petition, it is well settled that ifthe petition/application has been withdrawn for filing before other judicial fomm without seeking liberty, the petitioner is not restrained from taking recourse to other judicial fomm. In the identical situation, a writ petition was filed filed in the High Court i.e. in the matter ofHaryana State Coop. Land Development Bank (supra). Thereafter, on the request of the petitioner, the petition was dismissed as withdrawn on the ground that the petitioner may approach the Labour Court. No liberty was granted. However, the Labour Court rejected the application on the principle of res judicata which was held as wrong by the Supreme Court.

10. In Surguja Transport (supra), the Supreme Court held that when the writ petition is withdrawn without liberty, the fresh writ petition is not maintainable in the High Court, however, other remedies like a suit or a petition under Article 32 of the Constitution of India, may be maintainable. As such, withdrawal does not amount to res judicata. The Supreme Court, in the said case, observed as under: "9......But we are ofthe view that the principle underlying Rule 1 ofOrder XXIII ofthe Code should interests of administration ofjustice to cases ofwithdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as extended gi^r^!: ^^^_ ^,,^^ "^ / ^"'^. ^^s^. ^ ^^\^%^ ^ '^^y ^,.^/ explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount io.^res judicata, the remedy under Article 226 of the constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission....."

11. In view ofthe above well settled principle oflaw, the writ petition is maintainable.

12. ON MERITS: The service of the petitioner was regularized by order dated 29.07.1997 (Annexure P/3) after having completed two years of service, as contract employee on the basis of a recommendation made by the selection committee. Thus, it cannot be held that the regularization of the employee was not accordance with the rules. However, clause 1 of the order of regularization provides that the ser^ice of an employee may come to an end at any time on one month's notice by either side or one month's pay with allowance in iieu ofnotice. In the case on hand, the removal order was not passed after giving one month's notice or salary in lieu of notice. The petitioner was removed from the service on the ground that her work was not satisfactory and appointment was not in accordance with law as she had not completed two years service on contract basis. The petitioner vvas appointed on contract basis on 14.08.1995 as is evident from the !: *^ v'^^...'/- :;>..,^..,.^<" order of appointment dated 14.08.1995 (Annexure P/l). The ser^ice ofthe petitioner was regualrised on 29.07.1997 (Annexure P/3). It was short of few daySo However, it cannot be said that the petitioner had not completed two years of service, thus, she could have been terminated from service. At the most, the date of regularization could have been postponed till the petitioner completed two years, afiter recommendation of the selection committee. Thus, the contention of leamed counsel appearing for the respondents that it was contrary to mles as the petitioner had not completed two years. of ser^ice, is without any basis and deserves to be rejected. There is no provision that in case if the work is not satisfactory, the ser^ices of an employee can be terminated without affording an opportunity ofhearing. Hence, the ground of removal on the ground of service of the petitioner not being satisfactory, cannot sustain in the eyes oflaw.

13. Admittedly, in an identical situation, i.e. in case ofRajendra Singh, who was removed from the service, on 06.05.1998, the High Court of Madhya Pradesh, in W.P. No. 2044/1998 (Rajendra Singh v. Madhya Pradesh Adivasi Vitt Evam Vikas Nigam) quashed the said removal order, by order dated 16.11.1998 (Annexure P/8).

14. Indisputably, the impugned order of removal was passed without affording an opportunity of hearing which is against the well settled prmciples of law. An: order visiting with civil (evil) consequences, if passed without affording an opportunity of hearing to the employee(s), is vitiated (See Shrawan Kumar Jha lir'h ^i^ ^s^^^r'^ 'T ~ .^. •. •J:^''' -• ^. ^•^'-. and others v. State of Bihar and others3, D.K.Yadav v. J.M.A. Industries Ltd. & Others , Basudeo Tiwari v. Sido Kanhu University & Others5, Canara Bank & Others. v. Debasis Das & Others6, Vivekanand Sethi v. Chairman, J&KBankLtd. & Others7, Mohd. Sartaj & another v. State of U.P. & Others8, Inderpreet Singh Kahlon & others v. State ofPunjab & others9, Ashok Kumar Sonkar v. Union oflndia & Others , State ofManipur & Others v. Y.Token Singh & Others , Jas^ant Singh Pratap Singh Jadeja v. Rajkot Municipal Corporation & another , Nehru Yuva Kendra Sangathan v. Mehbub Alam Lashkar , State ofPunjab & Others v. Constable Avtar Singh (Dead) Through LRs, . Ku. Punam & Others v. State of Chhattisgarh & Others and Mrityunjay Shukla & Others v. Municipal Corporation Raipur & Others16.).

15. Applying the well settled principles of law, as aforestated, to the facts of the case on hand, and in view of the foregoing, impugned order dated 06.05.1998 (Annexure P/5) is quashed.

16. ON BACK-WAGES : There is no pleading in respect of gainful employment by the petitioner, no adjudication can be made on the