Madhya Pradesh High Court
Brijesh Kumar Patel vs The State Of Madhya Pradesh on 4 December, 2019
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W. P. No. 24864/ 2019
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 24864/ 2019
Brijesh Kumar Patel
Versus
State of Madhya Pradesh & Others
Date of Order 04.12.2019
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi
Whether approved for Yes
reporting
Name of counsels for For Petitioner: Shri Himanshu
parties Shukla, Advocate.
For Respondents/State: Shri
Vikalp Soni, Government Advocate.
Law laid down The Court need not issue a Writ merely because there is violation of the principle of natural justice, if admitted or indisputable factual position results only one conclusion.
Significant Para Nos. 14, 15 & 162 W. P. No. 24864/ 2019 THE HIGH COURT OF MADHYA PRADESH W. P. No. 24864/ 2019 (Brijesh Kumar Patel Vs. State of M.P. & Others) JABALPUR; Dated: 04/12/2019 Shri Himanshu Shukla, learned counsel for the petitioner.
Shri Vikalp Soni, learned Government Advocate for the respondents/ State.
Heard on the question of admission.
2. This petition under Article 226 of the Constitution of India has been filed seeking quashment of the order dated 04.01.2018 (Annexure-P/4) passed by respondent No.4 whereby the petitioner's contractual appointment has been terminated on the ground that a crime has been registered against him vide Crime No.348/2017 for the offence punishable under Sections 294, 323, 506 and 34 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(2)(v-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, and he was retained in jail and after filing of the challan, he was released on bail.
3. The impugned order further contained that 3 W. P. No. 24864/ 2019 Clause-16(1) of the Scheme of Madhya Pradesh State Employment Guarantee Council dated 02.06.2012, provides termination of the petitioner under the existing circumstances, accordingly, the said order has been passed. An appeal was also preferred by the petitioner, but the same was dismissed by order dated 07.03.2018 (Annexure-P/8).
4. Learned counsel for the petitioner submits that before terminating the services of the petitioner, he had not been granted any opportunity of hearing, therefore, the order impugned deserves to be set-aside because the guidelines issued in respect of appointment of Gram Rojgar Sahayak, which is available on record as Annexure-P/11 dated 02.06.2012 wherein Clause-15 very categorically provides as to in what manner, disciplinary action shall be taken against the petitioner and Clause-16 provides as to in what manner, the petitioner can be removed from service.
5. Learned counsel for the petitioner further submits that without providing any opportunity of hearing, the petitioner could not have been removed 4 W. P. No. 24864/ 2019 from service. He has also placed reliance upon a decision passed by Co-ordinate Bench in W.P. No.12831/2019 decided by order dated 20.09.2019, wherein the Court taking note of the condition of the order of appointment, has held that the order of appointment provides for giving an opportunity of hearing to the petitioner before his removal, as such the said requirement was not complied with, therefore, termination order has been held invalid.
6. On asking a specific query to learned counsel for the petitioner as to whether the fact regarding registration of offence is correct or not, he has submitted that the said fact is correct and offence has been registered against the petitioner.
7. Looking to the facts and circumstances of the case, undisputedly Condition No.15 of the order of appointment i.e.Annexure-P/1 dated 01.11.2014 very clearly contains that a person appointed on contract basis, if found involved in any criminal activities, then appointing authority will provide him adequate opportunity of hearing before terminating the contract 5 W. P. No. 24864/ 2019 appointment. However, the guidelines issued by the Council contained in Clause-16 prescribing the manner, in which contract appointment can be terminated, under which it is clearly mentioned that during the course of employment, if any criminal case has been registered or the employee is retained for more than 48 hours in custody, the contract appointment can be terminated.
8. The Panchayat and Rural Development Department has also issued instructions on 02.11.2019 (Annexure-P/13) making amendment in the guidelines specifying that if any criminal case is registered against a contract employee working on the post of Gram Rojgar Sahayak, then his services can be terminated.
9. In view of the aforesaid, it is clear that in the guidelines issued by the Council, there was no provision under which if termination is made on the basis of registration of criminal offence, then it is a mandatory requirement to provide an opportunity of hearing to the employee, although, in the order of appointment, the said condition has been inserted.
10. Although, there is no room left in the Policy 6 W. P. No. 24864/ 2019 that even after registration of offence, the employee can be continued in the employment and the contract can be allowed to be continued. While applying the rule of principle of natural justice, it is to be seen that if the same is not applied, what prejudice is caused to the employee.
11. In applying the principle of Audi alteram partem, the basic object is to ensure that there would not be failure of justice. Mere technical violation of the principle which amounts to negation of justice instead of doing justice between the parties would not be justified.
12. However, in the present case, situation is otherwise as has been explained hereinabove that no prejudice caused to the petitioner because has has otherwise admitted this fact that offence has been registered against him. In such a circumstance, not giving an opportunity of hearing would not cause any prejudice to him. The Supreme Court in the case of State Bank of Patiala & Others Vs. S.K. Sharma reported in (1996) 3 SCC 364, has observed as under:-
"Where however, there are no rules/ regulations/ statutory provisions incorporating the principles of natural justice, but those principles 7 W. P. No. 24864/ 2019 are implicit in the very nature of the action/order, if there is total violation of those principles i.e.no opportunity/hearing was given, then the action/order would be invalid but if there is violation of only a facet of the principles i.e.no adequate opportunity/no fair hearing was given, test of prejudice should be applied and if no prejudice caused, no interference would be called for."
13. Further, the Supreme Court in the case of M.C. Mehta Vs. Union of India & Others reported in (1999) 6 SCC 237, has also observed that:-
"16. Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the Court's discretion to refuse relief even though the rules of natural justice have been breached, on the ground that no real prejudice is caused to the affected party.
17. We shall initially refer to two cases where discretion was exercised not to grant relief and the first one was a case where relief was refused even though there was breach of natural justice. The first one is Gadde Venkateswara Rao Vs. Govt. of A.P. [AIR 1966 SC 828]. There the Panchayat Samithi, in exercise of its statutory powers passed a resolution on 25-8-1960 to locate a primary health centre at Dharmajigudem. Later, it passed another resolution on 29-5-1961 to locate it at Lingapalem. On a representation by the villagers of second resolution dated 29-5-1961 and thereby restoring the earlier resolution dated 25-8-1960. The result was that the health centre would continue at Dharmajigudem. Before passing the orders dated 7-3-1962, no notice was given to the Panchayat Samithi. This Court traced the said order of the Government dated 7-3-1962 to Section 62 of the Act and if that were so, notice to the Samithi under Section 62(1) was mandatory. Later, upon a review petition being filed, the Government passed another order on 18-4-1963 cancelling its order dated 7-3-1962 and accepting the shifting of the primary centre to Lingapalem. This was passed without notice to the villagers of Dharmajigudem. This order of the Government was challenged unsuccessfully by the villagers of Dharmajigudem in the High Court. On appeal by the said villagers to this Court, it was held that the letter order of the Government dated 18-4-1963 suffered from two defects, it was issued by the Government without prior show-cause notice to the villagers of Dharmajigudem and the Government had no power of review in respect of government orders passed under Section 62(1). But that there were other facts which disentitled the quashing of the 8 W. P. No. 24864/ 2019 order dated 18-4-1963 even though it was passed in breach of the principles of natural justice. This court noticed that the setting aside of the later order dated 18-4-1963 would restore the earlier order of Government dated 7-3-1962 which was also passed without notice to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution dated 29-5-1961 passed by the Panchayat Samithi. This court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice. Subba Rao, J. (as he then was) observed (at SCR p.189) as follows :
"Both the orders of the Government, namely, the order dated 7-3-1962, and that dated 18-4-1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under section 72 of the Act to review an order made under section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village."
(emphasis supplied) His Lordship concluded as follows:
"In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated 18-4-1963 ? If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
The above case is clear authority for the proposition that it is not always necessary for the court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law.
18. xxx
19. xxx
20. xxx
21. It is, therefore, clear that if on the admitted or 9 W. P. No. 24864/ 2019 indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice. "
14. Here in this case, by providing an opportunity of hearing asking the petitioner as to whether the offence has been registered against him or not, he has very categorically stated that the said fact is correct and as such, in a procedure for giving opportunity, nothing new could have been brought by the petitioner. Had it been a case in which on the basis of false information, contract is terminated, then it can be presumed that not providing an opportunity of hearing would have caused prejudice to the petitioner and that opportunity could change the mind of the authority and order could have been recalled.
15. However, in this case, an appeal was also preferred which has been rejected. The petitioner has also not questioned the order of appellate authority. In such a circumstance, I do not find any substance to entertain this petition merely on the ground that before issuing the basic order terminating the contract services, the petitioner had not been given any opportunity of hearing. Although, in an order passed by the Co-ordinate 10 W. P. No. 24864/ 2019 Bench in W.P. No.12831/2019, the Court has ultimately found that the order of termination is bad and it was set-
aside and thereafter, liberty was granted to the authority to proceed afresh in accordance with law, but no order has been passed by the Court directing reinstatement of the petitioner.
16. The facts of the present case are slightly different from that of the above case, as the petitioner in the present case has availed the remedy of appeal, which has also been decided but the order of appeal has not been assailed, whereas the original order of disciplinary authority merged in the order of appellate authority and in absence of any challenge to the said order, I am not inclined to interfere in the present petition.
17. In view of the above, the petition filed by the petitioner is hereby dismissed.
(SANJAY DWIVEDI) JUDGE Prachi Digitally signed by PRACHI PANDEY Date: 2019.12.17 16:45:00 +05'30'