Madhya Pradesh High Court
Amit Chandra vs The State Of Madhya Pradesh on 18 March, 2015
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.20952/2012
Amit Chandra
Vs.
State of Madhya Pradesh and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Sanjay Agrawal, learned counsel for the petitioner.
Shri Lalit Joglekar, learned Panel Lawyer for the
respondents No. 1 and 3 to 5.
ORDER
( 18.03.2015) The petitioner, an employee of the respondent Rajya Swasthya Samiti, is aggrieved by the order dated 23.11.2012, passed by the Chief Medical and Health Officer, Narsinghpur, dispensing with the services of the petitioner, on the allegation that he was unauthorisedly absent from duty. It is contended that the petitioner was selected for appointment on contract basis after holding a competitive examination by the Professional Examination Board, vide order dated 4.8.2009. An agreement was executed in between the petitioner and the respondent No.2 and posting order was issued on 24.8.2009, posting the petitioner at Gotegaon, District Narsinghpur. In terms of agreement, the petitioner was entitled to certain leaves. There were conditions mentioned in the agreement that in case the employee remained undutiful towards the work assigned to him, he may be removed from the post by terminating the contract of appointment after giving him an opportunity of hearing. Other condition was that either party can terminate 2 the contract after giving a month's notice or in lieu of notice a month's salary. Condition No.9 of the said agreement was specifically prescribed that in case the employee remained absent for more than a month's period from his place of posting, then his services would be terminated automatically. Though it was specifically provided in the agreement that initial appointment was for a period of one year, but the said contract was continuing as it was extended on time and again.
2: It is the case of the petitioner that after joining the duty and continuance of service for a reasonable period of three years, since the petitioner has taken ill, he moved an application for grant of leave with effect from 18th September to 17th October, 2012. As the petitioner was advised continuous treatment, with the medical certificate, he applied for extension of leave on 18.10.2012. Looking to the persisting illness, the petitioner was further required to extend his leave and for the said purposes, he submitted the application supported with a medical certificate. After the prolong treatment, since the petitioner became fit to join the duty, with a medical certificate of fitness, the petitioner gave his joining on 30.11.2012. Even after giving the joining, nothing was intimated to him, nor any order was communicated when he made a representation then only the impugned order was served on the petitioner and, therefore, assailing the said order, he was required to file the present writ petition.
3: It is the case of the petitioner that there was no application of Condition No.9 of the agreement, inasmuch as the petitioner has given the applications for grant of leave and, therefore, unless those applications were 3 rejected, decisions were communicated, it cannot be said that the petitioner was absent from duty without the sanction of the competent authority. Thus, it is contended that the action taken by the respondents for removal of the petitioner from service is bad in law.
4: Upon service of the notice of the writ petition, a return has been filed by the respondent No.2, contending inter alia that since the petitioner was a contract appointee, in terms of the contract, he was required to continue on the post regularly, but since he has absented himself for a period more than a month from the place of working, it was deemed that the services of the petitioner have come to an end. In such circumstances, in absence of any order of sanctioning the leave, it was rightly held that the petitioner was treated as absent from duty. Thus, it is contended that the whole petition is misconceived and is liable to be dismissed. By filing a rejoinder, the petitioner has stated that it was not his fault if the applications submitted by the petitioner were not considered by the competent authority and no sanction of the leave was granted. It is contended that in fact there were reports against certain persons submitted by the Block Medical Officer of the Community Health Centre, but no action on the reports were taken. Wrongly the services of the petitioner have been dispensed with. By filing the additional return, it is contended that the applications were not rightly sent to the authorities for grant of leave by the petitioner. After due consideration of the circumstances, order was rightly passed against the petitioner. As far as the other contract employee was concerned, said Ku. Priyanka Yadav, though was earlier found absent from the post, but on account of her personal reason, she has resigned from the service and 4 that being so, action was not taken against her. The petitioner was not to be obliged by retaining him in service, because of his own conduct.
5: At the time of hearing of the writ petition, more particularly, the application for grant of interim relief subsequently filed by the petitioner, it is pointed out by learned counsel for the petitioner that in identical circumstances, this Court has reached to the conclusion that even if a contract appointee is to be removed from the services on account of alleged misconduct, an enquiry is required to be conducted. These aspects have been looked into by this Court in various writ petitions and, therefore, the petitioner would also be entitled to the similar relief.
6: Per contra, it is contended by learned counsel for the respondents that in case action is taken under Clause 9 of the agreement, and if it is deemed as if the petitioner has relinquished the post because of his continuous absence for more than one month from the place of posting, no formal enquiry was required to be conducted. The power has rightly been exercised by the competent authority. These aspects have not been considered in any of the cases referred by the learned counsel for the petitioner, by this Court and, therefore, the case of the petitioner is distinguishable, who was found absent from duty for a period of more than one month and, therefore, was rightly treated to be removed from service.
7: After due consideration of the rival submissions of learned counsel for the parties, one thing is clear. If there is abandonment of the services in terms of Clause 9 of the agreement by the employee, by remaining absent 5 from duty for more than one month period, no formal order in writing even is required to be issued. In fact, it is a case of rescinding with the agreement by the employee as the specific clause is mentioned in the agreement itself. However, if the misconduct is alleged and an order of removal is issued, of course Clause 6 of the agreement would be applicable and then an opportunity of hearing is required to be granted to the employee concerned before issuing the order of termination. What is contended in the impugned order is that he is removed from the post since he was found absent unauthorisedly from the duties. It is not an intimation that the services are deemed to be abandoned by the petitioner because of his continuous absence for a period of more than one month from the work place. The wordings in the order impugned indicate that his absence from duty was treated to be a misconduct, as it was alleged that he was unauthorisedly absent. Whether such a misconduct was proved or not, it could be said only if enquiry would have been conducted.
8: Trite it is that normally hard and fast Service Rules are not made applicable for the contract employees as their terms and conditions of contract are separately fixed. Unless the Rules are adopted by the employer for governing the services of the employees, such Rules are not to be made applicable. However, it is also well established law that a person is not to be branded without affording an opportunity of hearing. In the given circumstances, when the petitioner made the application for grant of leave, according to the statements made in the return itself, it was not said to be rejected. The grant of leave to the employee is the prerogative of the employer. What were the circumstances, why the 6 application made by the petitioner was not considered by the employer, is not clear. Nothing has been said whether such an application was rejected and the order of rejection was duly communicated to the petitioner. How his absence from duty, when he made an application for grant of leave, was treated as unauthorised, is not explained. It is clear that the respondents themselves have not acted under clause 9 of the agreement, rather they were required to act on Clause 6 of the agreement.
9: These aspects have been mainly considered by this Court in W.P.No.6937/2013 (Rahul Jain Vs. Principal Secretary, State of M.P. and others) decided by the coordinate Bench of this Court at Indore, on 4.7.2013. Interpreting Clause 6 of the agreement, which is common for all contract appointees as a formate of contract is prescribed in all over Madhya Pradesh by the respondent No.2, it has been categorically held that in terms of law laid down by this Court in the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal [2001 (3) MPLJ 616] , no stigmatic order was to be issued against the employee even though he was working on contract basis, without following the procedure laid down for conducting the enquiry and obtaining the proof of misconduct. In view of the aforesaid analysis of law by the coordinate Bench of this Court at Indore, in no manner, a doubt is created whether action of the respondents herein was stigmatic or not. Since the order itself says that because of the unauthorised absence, the petitioner was removed from the post with immediate effect, it has to be held that the misconduct of remaining absent from duty, was required to be enquired into and a proof of the same was to be obtained, that too after affording an opportunity of hearing to the petitioner. This 7 law has been reiterated by this Court in W.P.No.19710/2013 (Mahesh Sahu Vs. The State of M.P. and others) decided on 11.2.2015.
10 : In view of the aforesaid discussions, it has to be held that the stand taken by the respondents that the petitioner has abandoned the services on account of remaining absent from duty for a period of more than one month in terms of Clause 9 of the agreement, cannot be countenance and, as such, the order impugned issued against the petitioner has to be treated as stigmatic order. The same runs contrary to the law laid down by this Court in the case of Rahul Tripathi (supra).
11 : Consequently, the writ petition is allowed. The order dated 23.11.2012 Annx.P/1 is hereby quashed. As far as the reinstatement of the petitioner in service is concerned, the petitioner is entitled to the said benefit. However, since the petitioner though was willing to work and has given the joining, but was not allowed to work, to that extent, a compensation is required to be paid to the petitioner. Consequently, the petitioner would be entitled to 40% of the back wages for the contract period, which amount to be calculated and paid to the petitioner within two months from the date of receipt of copy of this order.
12 : The writ petition is allowed to the extent indicated herein above. However, looking to the facts and circumstances of the case, there shall be no order as to costs.
(K.K. TRIVEDI) Judge A.Praj