Chandan Tiwari v. Deputy Commissioner, Koderma having its office at P.O. and P.S

--- : Mr. Piyush Chitresh, Advocate : Ms. Priyanka Bobby, Advocate --- 6/14.06.2022 Learned counsel for the parties are present.

2. This writ petition has been filed for the following reliefs: “For issuance of direction upon the respondents for quashing of letter No. 1020 dated 23.07.2020 (Annexure-5) whereby the petitioner has been dismissed from his service as Gram Rojgar Sewak as the reply to the show cause was not found satisfactory by the respondents authorities and the petitioner was found guilty of various irregularities during his work tenure.”

3. Learned counsel for the petitioner submits that the petitioner has been working as Gram Rojgar Sewak in Markachcho Block, District Koderma since 04.06.2007 and the job profile of the petitioner consisted of various works. Disbursement of job card (i) (ii) Maintenance of register (iii) (iv) (v) Maintaining the works carried out by the majdur and Implementation of finalize scheme Providing Rojgar/Employment to majdur issuance of muster roll etc. The petitioner has been working since last eleven years nine months and ten days as on 20.06.2019. 4. The learned counsel for the petitioner submits that the petitioner was issued a show cause vide memo dated 01.07.2020 making various 2 allegations against the petitioner and was granted only two days’ time to file his reply. 5. The learned counsel submits that the grant of short notice of 24 hours and two days has been considered by the Hon’ble Patna High Court in the judgment passed in CWJC No. 17904 of 2016 wherein it has been held that a notice of 24 hours or even two days would neither satisfy the notice period nor would satisfy grant of reasonable opportunity to defend nor an order passed thereon would be held an order passed after following due procedure of law. 6. He submits that in the said case, the appointments were made which continued uninterruptedly for two or three decades without any complaint was set at knot in a sweeping manner and similar is the case of the petitioner who has been working for a long time and the services of the petitioner has been discontinued by granting him only two days’ notice. 7. The learned counsel has also submitted that the impugned order dated 23.07.2020 is a non-speaking order, although the petitioner had filed a detailed reply in connection with the allegations leveled against the petitioner. The learned counsel for the petitioner submits that there is no doubt that the appointment of the petitioner is contractual appointment, but since the petitioner has been discontinued by making allegations, therefore due process of law is required to be followed. 8. The learned counsel for the respondents has opposed the prayer and has submitted that appointment of the petitioner was contractual appointment only providing for payment of honorarium. He submits that a number of allegations were leveled against the petitioner including issuance of forged job card, use of JCB machine in execution of work under MANREGA, non-issuance of job card from the labour found working, non-mentioning of date of the work done by the labour on the job card, non-mentioning of date of work demand, non-availability of muster roll on the spot, making of attendance of labourer once in a week etc. She submits that the petitioner has filed reply and some of the allegations made against the petitioner stood admitted in the reply. She also submits that as the appointment itself is contractual, no interference is called for. She has also submitted that in the impugned order it has also been mentioned 3 that the petitioner had sent a message to the Deputy commissioner that he would commit suicide. Thereafter an F.I.R. has also been registered against the petitioner. 9. After hearing learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute even from the side of the petitioner that essentially the appointment of the petitioner was made on contractual basis upon payment of honorarium under MANREGA and it appears that the petitioner has been working since 05.11.2007. However, vide show cause notice dated 01.07.2020, serious allegations were levelled against the petitioner which was made on the basis of inspection and allegations has been pointed out by learned counsel for the respondents as mentioned above. 10. It is not in dispute that the petitioner was directed to file a reply within a period of two days, but the fact remains that the petitioner duly filed the reply within two days and the detailed reply of the petitioner is contained at Annexure-4. This court finds that inspite of short time to respond, the petitioner duly filed a detailed and complete reply and thus, this court is of the considered view that no prejudice has been caused to the petitioner by providing a short time of only two days to respond to the show cause notice. The judgment relied upon by the petitioner passed by Hon’ble Patna High Court in CWJC No. 17904 of 2016 dated 17.01.2017 does not apply to the facts and circumstances of this case. In the judgement passed by Hon’ble Patna High Court, the procedure of appointment was under challenge after 20 to 30 years of appointment on the basis of report of CBI and orders were passed in haste after granting 24 hours’ notice depriving the petitioner of a reasonable opportunity to canvas their case , produce relevant documents with supporting case laws in support of their case and thus serious prejudice was cause to the petitioners of the said case by grant of short period of 24 hours to respond to the notice. In the present case, the petitioner has in fact filed his reply to show cause notice within a period of two days and it is not the case of the petitioner and even from the reply filed by the petitioner (Anneuxre-4), that the petitioner required any further time to include any further materials in response to the show-cause, rather a 4 detailed reply has been filed by the petitioner. Accordingly, this court is of the considered view that no prejudice has been caused to the petitioner by virtue of a short notice period of two days only. 11. It is not in dispute that the allegations levelled against the petitioner were of following nature: - (a) Issuance of forged job card (b) Getting the work executed by using JCB machine as confirmed by the villagers. (c) Some of the villagers working on the spot did not have the job card. (d) The work done by the labourers as entered in the job card did not mention the date. (e) The date of work demand was not mentioned. (f) Incorrect date was mentioned in the notice regarding initiation of work. (g) People from other villages were engaged for executing the work. (h) Muster roll was not available on the spot. (i) Making attendance of the labourer once in a week (j) getting the work order passed by involvement of fictitious persons in the Gram Sabha.

12. Upon going through the reply filed by the petitioner it appears that some of the aforesaid allegations particularly those mentioned at serial no. (c ) to (i) clearly stood admitted by the petitioner as per his show cause reply and the petitioner also stated with regard to some allegations that he has rectified the errors and proper steps have been so that there may not be any problem in future. Some of the allegations and response of the petitioner in the show-cause reply are as under: - i. It was alleged that the work was started from 06.02.2020 but as per the notice board the date of commencement was shown as

15.02.2020. In response to this allegation the petitioner had mentioned about rectification of this error stating that the same was a result of human error. ii. It was alleged that the work was going on in village Bhagatiyadih but all the labourers were from another village namely Pasiyadih and the work demand was en-block shown to have been done by labourers from Bhagatiyadih village. It stood admitted by the petitioner in his reply that the labourers were not from Bhagatiyadih village but were shown to be from Bhagatiyadih village as per work demand. However, the 5 petitioner had responded by stating that no person from Bhagatiyadih village had demanded work. iii. It was alleged that execution of such works was also included which required use of machines for execution. Although the petitioner tried to justify the choice of the work, but did not deny that execution of such work required use of machines. iv. It was alleged that those persons who were found at the place of work were not found with their job card and proper entries were not made in the job card which were available on the spot and there was complete mismatch in the records and the work was not being monitored properly. The mismatch in records was also admitted by the petitioner and he also admitted that day to day entries were not being made. v. It was alleged that the petitioner did not mention the date of work demand in the records and there was mismatch when seen with the entries made in muster roll and job card. In response, the petitioner admitted about the mismatch in connection with the entries in the records and tried to explain the mismatch and had also stated that appropriate steps have been so that there may not be any problem in future. vi. It was alleged that a number of fictitious job card were issued which were being used as per convenience and the labourers were not able to explain the work done by them to which the petitioner had responded by stating that the labourer had weak memory and out of fear they might not have responded before higher authorities.

13. As per the impugned order, the response filed by the petitioner was not found satisfactory and therefore the contractual engagement of the petitioner was terminated. It has also been recorded in the impugned order that the petitioner had also sent a whatsapp message threatening that he would commit suicide and an F.I.R. has also been registered against the petitioner on 18.06.2020. The issuance of such whatsapp message has not been denied by the writ petitioner in the writ petition but the petitioner has stated in the writ petition that the whatsapp message was not a part of the show cause notice to the petitioner. 6

14. This court finds that the petitioner was dis-engaged primarily on the ground that the show cause reply was not found satisfactory and this court finds that incidentally the aforesaid undisputed Whattapp message was also mentioned in the impugned order. 15. The nature of work required to be performed by the petitioner in the light of those mentioned by the learned counsel for the petitioner as recorded above, when seen in the light of the allegations read with the reply of the petitioner, there can be no doubt that the petitioner has failed to perform his duties as per law. 16. Considering the nature of allegation levelled against the petitioner and the fact that the petitioner had admitted some of the allegations in his show cause reply and that the appointment of the petitioner was essentially contractual in nature, this court is not inclined to interfere with the impugned order contained in memo No. 1020 dated 23.07.2020 (Annexure-5), discontinuing the engagement of the petitioner, in exercise of powers under Article 226 of the Constitution of India. Accordingly, this writ petition is dismissed. 17. Pending I.A., if any, is closed. Binit (Anubha Rawat Choudhary, J.)