Nafr High Court
Case Details
1 SATISH TUMANE Digitally signed by SATISH TUMANE NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved for orders on 11/12/2024 Pronouncement for order on 06/01/2025 WPS No.5328 of 2016 1 - Deepak Dhara S/o Shri R.S. Dhara, Aged About 44 Years R/o Near Telephone Exchange, In Front Of C.M.P.F. Colony Gate Phase I Plot No 31, Police Station Sarkanda, Rajkishore Nagar, Bilaspur, Chhattisgarh versus ... Petitioner(s) 1 - State Of Chhattisgarh Through Secretary, Health And Family Welfare Department, Mahanadi Bhawan, Police Station New Raipur, Tahsil Raipur, Civil And Revenue District Raipur, Chhattisgarh 2 - Mission Director, National Health Mission, 4th Floor, Chhattisgarh Housing Board Premises (South East Corner), Sector 27, New Raipur District Raipur Chhattisgarh 3 - Commissioner, Directorate Of Health Services, New Raipur, District Raipur Chhattisgarh 4-Collector, Kondagaon, District Kondagaon Chhattisgarh 5- Chief Medical And Health Officer, Kondagaon, District Kondagaon Chhattisgarh ... Respondent(s) For Petitioner(s)
Legal Reasoning
decision rendered by the Coordinate Bench of this Court in the matter of Narendra Kumar Dubey vs. State of Chhattisgarh and others (WPS Nos.6244 of 2009 & 6245 of 2009) decided on 24.01.2011. 3. On the other hand, learned counsel appearing for the Respondent No.2 while supporting the order impugned, submits that as per the direction of the Collector, Kondagaon, a three members committee was constituted on 21.06.2016 for holding disciplinary proceedings against the petitioner, wherein the petitioner has participated and after providing him sufficient opportunity of hearing, the said committee has submitted its report (Annexure P-10), whereby the charges levelled against the petitioner 5 were found to be proved and that after considering his reply to the show cause notice issued on 13.07.2016 (Annexure P-11), in pursuance to the said report (Annexure P-10), the contractual appointment of the petitioner has been terminated in view of the clause 14.2 of the Chhattisgarh Human Resource Policy, 2014. The petition, as framed, is therefore, liable to be dismissed. 4. I have heard learned counsel appearing for the parties and perused the entire papers annexed with this petition carefully. 5. What is reflected from the pleadings of the parties that the Collector, Kondagaon, vide its order dated 20.05.2016 (Annexure P-5) had constituted a three members committee in order to hold an enquiry with regard to certain financial irregularities committed by the petitioner for withdrawal of Rs.33,000/- based upon the forged bills, as per the publication made in this regard on 18.03.2016 in a daily newspaper “Haribhoomi”, while constituting the committee and wherein, the petitioner was directed to produce all the relevant papers before the said committee and, during inspection, certain irregularities were found to be committed, owing to which, a notice (undated, May, 2016) (Annexure P- 6) was issued to the petitioner, who in turn, vide its reply dated 23.05.2016 (Annexure P-7) has denied the allegations. It, however, appears that without holding any enquiry and that by merely considering the reply of the petitioner, the Collector, Kondagaon, vide its order dated 30.05.2016 (Annexure P-8), observed that the alleged withdrawal was made by him without obtaining prior approval from his superiors and the Mission Director, National Health Mission, Raipur was thereby, requested to terminate his contractual appointment, by holding 6 departmental enquiry against him and said Deenbandhu Dewangan. 6. It is to be seen further that the Deputy Director, National Health Mission, Raipur, vide its order dated 21.06.2016 (Annexure P-9) has constituted a three members committee in pursuance to the aforesaid direction issued by the Collector, Kondagaon in order to hold a departmental enquiry against the petitioner with regard to the alleged allegations. It is to be seen further at this juncture that the committee, so constituted, has submitted its report (Annexure P-10) and by taking note of the enquiry report (Annexure P-8), as was conducted by the Collector, Kondagaon on 30.05.2016, the petitioner has been held guilty and, a show cause notice dated 13.07.2016 (Annexure P-11) was thereupon issued to him and, after considering his reply (Annexure P-12) submitted on 18.07.2016 (Annexure P-12), services of him have been terminated vide order impugned dated 25.07.2016 (Annexure P-1) holding him to be guilty of the alleged allegations of misconduct and financial irregularities. It is to be seen that before arriving to such a conclusion, no enquiry was, however, found to be conducted, as required by virtue of clause 14.2 of the Chhattisgarh Human Resource Policy, 2014 and, the order impugned has been passed straightway while terminating his contractual appointment. The order impugned, thus, appears to be stigmatic in nature as it was passed without holding any enquiry, which would affect his future prospects. 7. The aforesaid observation is fortified by the principles laid down by the Supreme Court in the matter of Dr. Vijayakumaran C.P.V. (supra), wherein it has been observed at paragraph-8, as under :- 7 8. “It is well-established position that the material which amounts to stigma need not be contained in the order of termination of the probationer, but might be contained in “any document referred to in the termination order”. Such reference may inevitably affect the future prospects of the incumbent and if so, the order must be construed as ex-facie stigmatic order of termination. A three- Judge Bench of this Court in Indra Pal Gupta vs. Model Inter College, reported in (1984) 3 SCC 384, had occasion to deal with somewhat similar situation. In that case, the order of termination referred to the decision of the Managing Committee and subsequent approval by the competent authority as the basis for termination. The resolution of the Managing Committee in turn referred to a report of the Manager which indicated serious issues and that was made the basis for the decision by the Committee to terminate probation of the employee concerned.“ 8. Recently, in the matter of U.P. State Road Transport Corporation and others (supra), the Supreme Court has held at para -19 as under :- 19. “The services of the respondent have been determined solely on the ground of misconduct as alleged but without holding any regular inquiry or affording any opportunity of hearing to him. The termination order has been passed on the basis of some report which probably was not even supplied to the respondent. No show cause notice appears to have been issued to the respondent. Therefore, the order of termination of his services, even if on contractual basis, has been passed on account of alleged misconduct without following the Principles of Natural Justice. The termination order is apparently stigmatic in nature which could not have been passed without following the Principles of Natural Justice.” 9. In somewhat similar situation, the Coordinate Bench of this Court in the matter of Narendra Kumar Dubey and connected matter (supra), has observed while placing reliance upon the principles laid down by the Supreme Court in various matters at paragraphs 9 to 11 and 14, as under :- 8 09. ………………………..”In such a case, it is well settled that if the order of punishment is stigmatic, even in case of temporary appointment, or during probation, ad-hoc or contract basis, proper opportunity of hearing after holding proper enquiry to establish the allegations of financial irregularities or negligence, is mandatory. 10. The identical issue came up for hearing before this Court in Dhaluram Kosariya (supra), wherein this Court, after having considered various decisions of the Supreme Court, observed as under: “l3. The Supreme Court in the case of Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another, has observed in para 34 as under: - “34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive.” 14. The Supreme Court in the case of Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others has observed in para 35 as under:- “35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. . .” 9 15. The Supreme Court in the case of Nar Singh Pal vs. Union of lndia and Others has held as under:— “The appellant, although a casual labour, had acquired temporary status. Once an employee attains the “temporary” status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other articles dealing with services under the Union of India. The services were terminated on account of the allegation of assault made against the appellant. The order of termination in the instant case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of punishment and, therefore, was an order of dismissal which, having been passed on the basis of preliminary inquiry and without holding a regular departmental inquiry, cannot be sustained.” 16. The Supreme Court in the case of Chandra Prakash Shahi vs. State of U.P. and Others has observed in para l2, as under:— “12. Now, it is well settled that the temporary government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month’s notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The Courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is an innocent as worded. (See: Parshotam Lal Dhingra Vs. Union of India). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive 10 unless the order was “founded” on those factors or other disqualifications.” 17. The Supreme Court in the case of State of Punjab and others vs. Balbir Singh has observed in para 7, as under:- “7. Thus, the principle that in order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the “object of the enquiry”. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simplicitor and not punitive in nature.This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa Vs. Ram Narayan. Das. It was held that one should look into the “object or purpose of the enquiry” and not merely hold the termination to the punitive merely because of an antecedent enquiry. Whether it (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry. . . .” 18. In the instant case the facts of the case clearly establish that the termination of the service of the petitioner was not a termination simplicitor but on the basis of the alleged irregularities and misconduct committed by the petitioners.” 11. The ratio laid down in Dhaluram Kosariya (supra) has been referred with approval in Chandikeshwar Singh v. State of Chhattisgarh & Others, 2007 (3) MPHT 106 (CG) as under: “13....The order of removal being penal in nature, visiting with civil consequences, cannot be passed without holding the enquiry in accordance with the elaborate provisions as prescribed in Rule 7 of the Rules, 1999.” 14. Having regard to the above stated facts and circumstances 11 of the instant cases and applying the well settled principles of law to the cases on hand, the impugned termination order is not a termination simplicitor in terms of clause 4 of the appointment order, but is a stigmatic order which has been passed without affording proper opportunity of hearing to the petitioners in a proper enquiry. Thus, the impugned termination orders are unsustainable.” 10. Applying the aforesaid principles to the case in hand, I have no hesitation to hold that the order impugned terminating the services of the petitioner is ex-facie stigmatic in nature, as it has been passed without subjecting him to regular enquiry. The order impugned dated 25.07.2016 (Annexure P-1) passed by the Respondent No.2 is, therefore, liable to be and is hereby quashed. However, liberty is reserved to the concerned respondent authorities to take appropriate steps, if so advised, after affording proper opportunity of hearing to the petitioner and after following the principles of law, as mentioned herein-above. 11. The petition is accordingly allowed with the aforesaid observation.
Arguments
: Shri Manoj Paranjpe, Advocate appears along For Respondents No.1 & 3 to 5 For Respondent No.2 : : with Shri Shaswat Mishra, Advocate Shri Ratan Pusty, Govt. Advocate Shri Koushal Yadav, Advocate Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal CAV Order 2 01. By virtue of this petition, the petitioner is questioning the legality and propriety of the order dated 25.07.2016 (Annexure P-1) passed by the Respondent No.2-Mission Director, National Health Mission, Raipur, whereby, the services of the petitioner have been terminated. 02. Briefly stated the facts of the case are that the petitioner was appointed on the post of District Programme Manager on 26.09.2008 after following the constitutional scheme of appointment in the office of Chief Medical and Health Officer at Ambikapur and thereafter, he was transferred to Kondagaon in the month of May, 2015. While performing his duty as such, a complaint was made pertaining to irregular appointments in the Health Department, therefore, an enquiry was conducted and two persons, except the petitioner, were found responsible therein, vide Enquiry Report dated 10.03.2016 and show cause notices were, accordingly, issued to one Priyanka Jangde and Deenbandhu Dewangan on 07.05.2016, but, no action was, however, taken. It is pleaded further that another enquiry with regard to the same complaint was made by the Joint Director and, statement of the petitioner was recorded and since the petitioner was found to be on leave when the advertisement for appointment was issued on 21.10.2015, therefore, no action was taken against him. 2.1 Further contention of the petitioner is that the Collector, Kondagaon, vide its order dated 20.05.2016 (Annexure P-5) has constituted a three members committee in order to hold an enquiry pertaining to withdrawal of Rs.33,000/-, which was alleged to have been recovered based on the forged bills, as was published to that effect in a daily newspaper “Haribhoomi” on 18.05.2016 and, the petitioner was directed to produce 3 the entire relevant papers before the said committee. According to the petitioner, the said committee has enquired the matter in his absence and, an undated letter (Annexure P-6) was issued to him in the month of May, 2016, whereby, he was asked to furnish his explanation on the same date and, in response to it, the petitioner has submitted his explanation on 23.05.2016 (Annexure P-7), denying specific allegations of financial irregularities committed by him and stated further that he has rather followed the instructions of his superiors. Further of his contention is that the alleged enquiry was conducted behind his back and by virtue of the enquiry report dated 30.05.2016 (Annexure P-8), he (petitioner) along with one Deenbandhu Dewangan are held guilty by the Respondent No.4 (Collector, Kondagaon) and thereby, requesting the Mission Director, National Health Mission to terminate the contractual appointment of both of them, by holding a departmental enquiry against the petitioner and said Deenbandhu Dewangan. 2.2 In pursuance to the aforesaid direction, the Deputy Director, National Health Mission, Raipur, vide its order dated 21.06.2016 (Annexure P-9) has constituted a three members committee in order to hold an enquiry pertaining to the alleged allegations of recruitment and financial irregularities committed by the petitioner and in the said enquiry, the committee, so constituted, by taking note of the enquiry report (Annexure P-8) held by the Collector, Kondagaon, the petitioner has been held guilty for the alleged irregularities vide enquiry report (Annexure P-10) and show cause notice (Annexure P-11) was accordingly issued to him asking his reply within a period of three days. In response to the said show cause notice, the petitioner has submitted his reply (Annexure P-12) on 18.07.2016. It is contended further that 4 although, the reply was submitted, but, without considering the same and without providing proper opportunity of hearing, the services of the petitioner have been terminated by the Respondent No.2 vide its order impugned dated 25.07.2016 (Annexure P-1) on account of misconduct and financial irregularities committed by him. 2.3 While referring to the aforesaid facts, it is contended by the learned counsel appearing for the petitioner that since his services have been terminated without providing him opportunity of hearing by holding, inter alia, that he has committed misconduct and financial irregularities, therefore, the order impugned is stigmatic in nature and therefore, deserves to be quashed. In support, learned counsel appearing for the petitioner has placed his reliance upon the decisions rendered by the Supreme Court in the matter of Dr. Vijayakumaran C.P.V. vs. Central University of Kerala and Others, reported in (2020) 12 SCC 426 and U.P. State Road Transport Corporation and others vs. Brijesh Kumar and Another, reported in 2024 SCC Online SC 2282 as also the
Decision
No order as to costs. SD/- (Sanjay S. Agrawal) Judge Tumane