Jharkhand High Court
Gaurav Kumar Sinha Son Of Late Anil Kumar ... vs The State Of Jharkhand on 17 March, 2023
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1103 of 2018
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Gaurav Kumar Sinha son of Late Anil Kumar Prasad, R/o Karma, PO
Karma, PS Tiliya, District Koderma.
... Petitioner
-versus-
1. The State of Jharkhand.
2. Deputy Commissioner, Koderma.
3. Deputy Development Commissioner cum Chief Executive Officer,
District Council, Koderma.
4. Additional Collector, Koderma.
... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioner : Mr. Mahesh Tewari, Advocate
For the Respondents : Md. Asghar, AC to Sr. SC II
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ORDER
RESERVED ON 01.02.2023 PRONOUNCED ON 17.03.2023 Petitioner, in this writ petition, has prayed for quashing the letter dated 18.10.2017 as contained in Memo No.588 (Annexure 5) issued by the respondent No.2, whereby the services of the petitioner has been terminated. Petitioner has further prayed to direct the respondents to reinstate the petitioner on the post of Assistant Clerk.
2. Petitioner was appointed as a Clerk on compassionate ground on 13.06.2015. The petitioner was arrested by the ACB on 10.07.2017, thus, he was suspended in terms of Rule 99 of the Jharkhand Service Code. Vide order dated 17.07.2017 as contained in Memo No.438 (Annexure 2), the petitioner was put under suspension and it was directed that he will only be entitled to subsistence allowance. Be it noted that against the petitioner, Hazaribagh ACB Police Station Case No.27 of 2017 was initiated under Sections 7 and 13(ii) of the Prevention of Corruption Act for allegedly demanding and accepting illegal gratification for the purpose of construction work of drain. On 20th September, 2017, petitioner was granted bail. The petitioner gave his joining on 14.10.2017, but, the impugned order was passed intimating that as his services were not satisfactory, it was decided to relieve him from duty. Be it noted that at the time of relieving the petitioner, he was under probation.
3. Counsel for the petitioner argues that the order is stigmatic and he has been removed only on the ground that he was arrested and got involved in a criminal case on the allegation of accepting bribe. It is his case that without 2 initiating any departmental proceeding, his services could not have been terminated.
4. Counsel appearing on behalf of the State-respondents submits that there is nothing in the impugned order to suggest that as the petitioner was arrested in a criminal case involving moral turpitude, his services were terminated. It is the case of the respondents that the petitioner was under
probation and during the probation, it was found that his services were unsatisfactory, thus, within the probation period he was terminated and the petitioner was relieved. It is their case that as per Rule 23 of the Jharkhand Government Servants (Classification, Control and Appeal) Rules, 2016, petitioner's probation can be put to an end and consequently he can be removed on the ground that his services are not satisfactory.
5. After hearing the parties, I find that it is an admitted case that the petitioner was on probation, when the District Establishment Committee, on 20.09.2017, took a decision to end the probation period of the petitioner and terminate his services. Though the petitioner submits that the ground for such termination is due to involvement in the criminal case, which involves moral turpitude, but, from the impugned order I find no whisper of any criminal case. It has only been mentioned that his services were not satisfactory. Further, Rule 23 of the Jharkhand Government Servants (Classification, Control and Appeal) Rules, 2016 reads as follows: -
,slk ifjoh{kk/khu dehZ ftldk xgukf/kdkj jkT; ljdkj ds v/khu fdlh in ij ugh gks] og fcuk lwpuk ds fdlh Hkh le; lsok ls c[kkZLrxh dk nk;h gksxk] ;fn ¼i½ ;fn ifjoh{kk dky ds nkSjku mlds izn'kZu ;k vkpj.k ds vk/kkj ij mls lsok esa cuk;s j[kus ds fy, v;ksX; le>k tkrk gSA
6. It is well settled that an order of termination/dismissal, if not stigmatic, if effected during period of probation, an employee is removed, there is no applicability of principles of natural justice. Providing an opportunity of hearing will only be applicable if the order is stigmatic. In the case of State of Punjab & Others versus Bhagwan Singh reported in (2002) 9 SCC 636, where the probationer was discharged during the period of probation, as his services were not found satisfactory, the Hon'ble Supreme Court at paragraphs 4 and 5 thereof has held as under: -
"4. ... when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an 3 assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.
5. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma."
7. The Hon'ble Supreme Court in the case of Registrar, High Court of Gujarat and Another versus C.G. Sharma, reported in (2005) 1 SCC 132 has held that an employee, who has been on probation, can be terminated due to unsatisfactory work. In the case of State of M.P. & Another versus Virendra Kumar Chourasia reported in 1999 SCC (L&S) 1155, the Hon'ble Supreme Court has held that in the event of non-stigmatic termination of the services of a probationer, the principles of audi alteram partem are not applicable.
8. All these judgments have been considered by the Division Bench of this Court in L.P.A. No.259 of 2019 [V. Srinivasula Reddy versus Jharkhand Urban Infrastructure Development Company Limited & Others] and has held that no show cause notice is necessary when services of a probationer has been terminated on a non-stigmatic ground.
9. As held earlier, from the impugned order I find that there is no whisper about any criminal case against the petitioner, nor it has been mentioned that because of he being taken into custody, he is being terminated. Thus, it cannot be said that the order is stigmatic. The only reason mentioned therein is that his services were not satisfactory. Thus, the impugned order cannot be said to be stigmatic, which would call for a regular Departmental Proceeding or issuance of a show cause. Further, Rule 23 of the Jharkhand Government Servants (Classification, Control and Appeal) Rules also provides for removal of an employee, who is under probation on the ground of unsatisfactory performance. Citing the reason of removal as "unsatisfactory performance during probation period" does not attach any stigma. Thus, I find no illegality in the impugned order, as the same cannot be said to be stigmatic. This writ petition is, accordingly, dismissed.
(Ananda Sen, J.) Kumar/Cp-02