Writ Petition No. 102334 of 2021 · High Court of Karnataka · 2024

ORDER The prayer made in this petition is to quash the order dated 28.05.2021 passed by respondent No.2 vide Annexure-D and direction to respondent No.2 to re-instate in service with all monetary benefits.

2. Heard the learned counsel for petitioner and learned High Court Government Pleader for respondents.

3. The respondent No.2 has appointed the petitioner by order dated 30.08.2011 vide Annexure-A as Gram Sahayak of Sonna village in Bilagi Taluk. Respondent No.2 has issued a show cause notice to the petitioner on 05.05.2021 dated

04.05.2021 to show cause, as to why he did not turn to work and has violated the quarantine rules vide Annexure-B. The petitioner sent his reply to the said show cause notice on

07.05.2021 vide Annexure-C. The respondent No.2 passed an order of dismissal dated 28.05.2021 vide Annexure-D. The petitioner has challenged the said order of his dismissal vide Annexure-D in this writ petition, with a prayer to re-instate in service with all monetary benefits.

4. Learned counsel for petitioner would contend that, the petitioner has denied the allegations made against him in - 3 - NC: 2024:KHC-D:4997 WP No. 102334 of 2021 the show cause notice, in his reply notice and without holding any enquiry in that regard, the petitioner has been dismissed from service and therefore, the said order of dismissal is not sustainable in law. He submits that even though, the petitioner is a temporary employee and enquiry has to be held prior to his dismissal and on that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of Nepal Singh Vs. State of U.P and Others reported in (1985) 1 SCC 56. He also placed reliance on the decision of the Hon’ble Apex Court in the case of Om Prakash Goel Vs. Himachal Pradesh Tourism Development Corporation Ltd., Shimla and Another reported in (1991) 3 SCC 291. Wherein, the Apex Court held that an order of termination from that of a temporary employee on the ground of misconduct, is not sustainable in the absence of any enquiry.

5. The learned High Court Government Pleader would contend that, on perusal of the appointment order of the petitioner vide Annexure-A indicates that, his appointment is temporary and one of the condition imposed in the appointment order is that, he can be removed from work, if any complaints are received against him, without assigning any reasons. She - 4 - NC: 2024:KHC-D:4997 WP No. 102334 of 2021 further contends that, the petitioner has violated quarantine rules and he has disrespected and quarreled with his colleagues and in that regard, he has sworn in affidavit dated 27.02.2017.

6. Having heard the learned counsels and perused the records.

7. The appointment order dated 30.08.2011 vide Annexure-A indicates that, the petitioner is a temporary employee appointed as Gram Sahayak. The said appointment order indicates that, the father of the petitioner by name Sri.Buransaheb Saidusab Ghanti was working as Gram Sahayak and on his resignation dated 21.06.2011, the said post of Gram Sahayak has been vacant and the petitioner has applied for the said post.

8. The show cause notice dated 04.05.2021 vide Annexure-B indicates that, the petitioner did not perform his duties properly and in that regard, earlier 3 notices were issued and Tahsildar has given him a warning. It also indicates that, the petitioner has disrespected his superior officers and misbehaved with public and in that regard complaints were also received against the petitioner in writing and orally by the - 5 - NC: 2024:KHC-D:4997 WP No. 102334 of 2021 Village Accountants. Even there is a allegation that, the petitioner has also misbehaved with his colleagues and in that regard, the President of Gram Shank Sangh has written letters on 2 occasions asking him to take action against the petitioner. The said show cause notice also indicates that, inspite of petitioner being tested Positive for Covid-19, he has violated the home quarantine rules and moved around in the village and went to other villages. The petitioner in his reply dated

07.05.2021 vide Annexure-C has denied all those allegations made against him in the said show cause notice. After receipt of reply of the petitioner to the show cause notice, no enquiry was held and impugned order dated 28.05.2021 Annexure-D came to be passed by Tahsildar, Bilagi, dismissing the petitioner from services from the post of Gram Sahayak. In the case of Nepal Singh (supra) the Hon’ble Apex Court considering the removal of a temporary capacity Sub-Inspector of Police has observed that, the dropping of enquiry initiated for want of jurisdiction and inspite of that, it is not open to mention in the report as a statement of fact that, the appellant had married a second time against the Government Servants’ - 6 - NC: 2024:KHC-D:4997 WP No. 102334 of 2021 Conduct Rules. The Hon’ble Apex Court further observed as under; “We may observe that where allegations of misconduct are levelled against a Government servant, and it is a case where the provisions of Article 311(2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The Court will view with great disfavor any attempt to circumvent the constitutional provision of Article 311(2) in a case where that provision comes into play.”

9. In the case of Sri. K.S.Nanjegowda V/s. State of Karnataka and Others reported in 2021 (1) KAR.L.J.498, the Co-ordinate Bench of this Court after referring to the decision of the Hon’ble Apex Court has held as under;

13. Further, Court SMT. SHANTHALAKSHMI THE COMMISSIONER FOR SERICULTURAL DEVELOPMENT in Writ Petition No. 26851/1998 (S-KAT) decided on 24/06/2002 framed three points for consideration. Point No. 3 relates to, “Whether the order of termination dated 21-1-1997 is valid?” Para 10 relates to Re- Point (iii) which is extracted hereunder for ready reference

10. In a series of decisions, the - 7 - NC: 2024:KHC-D:4997 WP No. 102334 of 2021 Supreme Court has held that even in the case of temporary employees or daily wage employees, an order of termination on the allegation of involvement criminal offence, cannot be treated as a simple order of retrenchment, but will have to be treated as an order of punishment and therefore should preceded a regular departmental enquiry [see decisions in OM PRAKASH GOEL HIMACHAL PRADESH TOURISM DEVELOPMENT CORPORATION [1991(3) SCC 291], NAR SINGH PAL vs UNION OF INDIA [2000(3) SCC 588] AND CHANDRA PRAKASH SHASHI STATE OF UTTARPRADESH [2000(5) SCC 152]. Even an ad-hoc employee cannot discharged a measure of punishment or by casting a stigma, without an enquiry [vide STATE OF UP VS KAUSHAL KISHORE SINGH [1991(1) SCC 691] AND HARDEEP SINGH vs STATE OF HARYANA (1987) SUPP. SCC 295]. In view of the aforesaid decisions, the impugned action of terminating the services of the petitioners is illegal and contrary to the principle laid in the - 8 - NC: 2024:KHC-D:4997 WP No. 102334 of 2021 aforesaid decisions. Therefore, this Court is of the considered opinion that once the order passed by the respondents is stigmatic in nature, the petitioners will certainly not get any job in future on account of stigmatic order. This Court is of the opinion that in all fairness, an opportunity of hearing should have been granted petitioners while terminating their services and thereafter, they should have taken appropriate action in accordance with law.

14. In the present case, it is not disputed that respondent/BBMP have not resorted to initiate any domestic enquiry before passing orders of termination/dismissal dated *08.09.2010 and *29.10.2010 respectively. Merely issuing notice for which petitioners have denied the alleged allegations, in such circumstances domestic inquiry is warranted.

10. In view of the above decision, the impugned action of terminating the services of the petitioner is illegal and contrary to the principles laid down in the aforesaid decisions. Therefore, this Court is of the considered opinion that, once the order passed by the respondents is stigmatic in nature, the petitioner will certainly will not get any job in future on account - 9 - NC: 2024:KHC-D:4997 WP No. 102334 of 2021 of stigmatic order. This Court is of the opinion that, an opportunity should be granted the petitioner while terminating his services and thereafter, he should have taken appropriate action in accordance with law. It is not disputed that, the respondents have not initiated any domestic enquiry before passing an order of termination/ dismissal dated

28.05.2021 vide Annexure-D. Merely, issuing a notice for which the petitioner has denied the allegations, in such circumstances the domestic enquiry is warranted. Resultantly, the writ petition is allowed and order dated 28.05.2021 vide Annexure-D is quashed. The petitioner is re-instated in service without any monetary benefits.

11. The respondents are at liberty to initiate enquiry against the petitioner. Sd/- JUDGE PJ / CT:BCK List No.: 1 Sl No.: 25