Madhya Pradesh High Court
Dr.Ajeet Kumar Tiwari vs The State Of Madhya Pradesh on 31 March, 2015
:: 1 ::
Writ Petition No.17566/2007, 14774/2008,
14776/08 and 14777/2008
31.3.2015.
Shri S.N. Saraf, learned counsel for petitioner in Writ
Petition No.17566/2007.
Shri Piyush Bhatnagar, learned counsel for petitioner in
Writ Petition No.14774/2008.
Shri Akshat Agrawal, learned counsel for petitioner in Writ
Petition No.14776/2008.
Shri Avinash Zargar, learned counsel for petitioner in Writ
Petition No.14777/2008.
Shri Aashish Anand Bernard, learned Government
Advocate for the respondent-State, in all petitions.
Common issue which arises for consideration in these batch of writ petitions is whether the impugned order (dated 10.12.2007 in W.P. : 17566/07, 14774/08, 14776/08) and (dated 13.12.2007 in W.P. : 14777/08); whereby, the services of the petitioners, Chief Executive Officers, on probation, have been dispensed with, are stigmatic as would warrant a departmental enquiry or termination simpliciter.
Appointed on probation as Chief Executive Officers in pursuance to selection through examination held in the year 1997 by M.P. Public Service Commission, petitioners were posted in various Janpad Panchayat/Block. The period of probation was extended from time to time. That, in the year 2007, instead of extending the period of probation or regularizing their services, petitioners' services were dispensed with by the Authorities concerned purportedly in exercise of powers under sub-rule (4) of Rule 8 of M.P. Civil Services :: 2 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 (General Condition of Service) Rule, 1961, which provides for that "the services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant".
The order dispensing with the petitioner's service (in Writ Petition No.17566/2007) is worded in the following terms -
Øekad 16928@ 3340 @ 22 @ fo&2@ LFkk- @07 e/;izns'k 'kklu iapk;r ,oa xzkeh.k fodkl foHkkx ds vkns'k Øa-7642@22@fo&2@LFkk-@98 fnukad 18-05-98 ds }kjk Jh vkj0,u0 xqIrk dh fu;qfDr eq[; dk;Zikyu vf/kdkjh tuin iapk;r ds in ij nks o"kZ dh ifjoh{kk vof/k ij dh xbZ Fkh A Jh xqIrk us eq[; dk;Zikyu vf/kdkjh ds in ij fnukad 28-05-98 dks dk;ZHkkj xzg.k fd;k gS A 2- e-iz- flfoy lsok,a ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8¼3½ ds vuqlkj ijhoh{kk/khu O;fDr dks mldh ifjoh{kk vof/k ds nkSjku ,slk izf'k{k.k izkIr djuk gksxk rFkk ,slk foHkkxh; ijh{kk,a mRrh.kZ djuk gksxh] tks fofgr dh tk,A 3- e-iz- flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8¼2½ ds vuqlkj fu;qfDr izkf/kdkjh i;kZIr dkj.kksa ls ifjoh{kk vof/k dks ,slh vof/k rd vkSj c<+k ldsxk] tks fd ,d o"kZ ls vf/kd ugha gksxh A pwafd Jh xqIrk us ifjoh{kk vof/k esa foHkkxh; ijh{kk mRrh.kZ ugha dh Fkh A vr% foHkkx ds vkns'k Øekad 4159 fnukad 01-04-03 }kjk Jh xqIrk dh ijhoh{kk vof/k fnukad 31-03-04 rd c<+kbZ xbZ gS A 4- e/;izns'k flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8¼4½ ds vuqlkj ifjoh{kk/khu O;fDr dh :: 3 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 lsok,a ifjoh{kk dh vof/k ds nkSjku ml fLFkfr esa lekIr dh tk ldsxh] ;fn fu;qfDr izkf/kdkjh dk ;g er gks fd og ,d mi;qDr 'kkldh; deZpkjh fl) ugha gks ldsxk A ifjoh{kk dky esa gh Jh xqIrk dks vk;qDr Xokfy;j laHkkx Xokfy;j ds vkns'k Øekad D;w0 @ fodkl @ LFkk- @23&4@71@01 fnukad 22-09-03 }kjk lafonk 'kkyk f'k{kd dh p;u izfØ;k esa xaHkhj vfu;ferrk,a cjrh tkus ds dkj.k rhu okf"kZd osruo`f);ka vlap;h izHkko ls jksdus dh 'kkfLr ls nf.Mr fd;k x;k gS A vr% e-iz- flfoy lsok ¼lsok dh lkekU; 'krsZa½ fu;e 1961 ds fu;e 8¼4½ ds vuqlkj Jh vkj0,u0 xqIrk] mi;qDr 'kkldh; deZpkjh fl) ugha gksaxs A vr% Jh xqIrk dh lsok,a ,rn~ }kjk rRdky izHkko ls lekIr dh tkrh gSA e-iz- ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ¼,l0,u0 flag½ milfpo e-iz- 'kklu iapk;r ,oa xzkeh.k fodkl foHkkx That, paragraph 4 of the orders dispensing with the services of the petitioners in respective petition contains similar reasons -
In Writ Petition No.14774/2008 -
4- e/;izns'k flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8¼4½ ds vuqlkj ifjoh{kk/khu O;fDr dh lsok,a ifjoh{kk dh vof/k ds nkSjku ml fLFkfr esa lekIr dh tk ldsxh] ;fn fu;qfDr izkf/kdkjh dk ;g er gks fd og ,d mi;qDr 'kkldh; deZpkjh fl) ugha gks ldsxk A Jh MkW frokjh ds fo:) vuq'kklukRed dk;Zokfg;ksa :: 4 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 dk fooj.k fuEukuqlkj gS % & 1- vk;qDr mTtSu ds vkns'k fnukad 16-04-04 }kjk foHkkxh; tkWp lafLFkr dh xbZ gS A 2- foHkkx ds i= fnukad 18-10-05 }kjk e/;izn's k flfoy lsok ¼oxhZdj.k fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 16 ds varxZr dkj.k crkvks lwpuk i= tkjh fd;k x;k gS A 3- vk;qDr pEcy ds vkns'k fnukad 05-08-06 }kjk foHkkxh; tkWp lafLFkr dh xbZ gS A 4- v- Ø- 24@03 esa vfHk;kstu Loh--fr gsrq lgefr nh xbZ A 5- vk;qDr Xokfy;j ds Kkiu fnukad 03-05-07 }kjk e/;izns'k flfoy lsok ¼oxhZdj.k fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 16 ds varxZr dkj.k crkvks lwpuk i= tkjh fd;k x;k gS A 6- vk;qDr Xokfy;j ds Kkiu fnukad 18-08-07 }kjk e/;izns'k flfoy lsok ¼oxhZdj.k fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 14 ds varxZr dkj.k crkvks lwpuk i= tkjh fd;k x;k gS A In Writ Petition No.14776/2008 -
4- e/;izns'k flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8¼4½ ds vuqlkj ifjoh{kk/khu O;fDr dh lsok,a ifjoh{kk dh vof/k ds nkSjku ml fLFkfr esa lekIr dh tk ldsxh] ;fn fu;qfDr izkf/kdkjh dk ;g er gks fd og ,d mi;qDr 'kkldh; deZpkjh fl) ugha gks ldsxk A ifjoh{kk dky esa gh Jh fllkSfn;k dks vk;qDr mTtSu laHkkx mTtSu ds vkns'k Ø-7072@,Q&56@01@fo&3@03 fnukad 29-07-03 }kjk lafonk 'kkyk f'k{kd dh p;u izfØ;k esa xaHkhj vfu;ferrk,a cjrh tkus ds dkj.k nks okf"kZd osruo`f);ka vlap;h izHkko ls jksdus dh 'kkfLr ls nf.Mr :: 5 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 fd;k x;k gS A blh izdkj vk;qDr mTtSu laHkkx ds vkns'k Ø-5013@nks&LFkk-@06 fnukad 15-06-06 }kjk Jh fllkSfn;k dh ,d osruo`f) vlap;h izHkko ls jksdh xbZ gS A In Writ Petition No.14777/2008 -
4- e/;izns'k flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8¼4½ ds vuqlkj ifjoh{kk/khu O;fDr dh lsok,a ifjoh{kk dh vof/k ds nkSjku ml fLFkfr esa lekIr dh tk ldsxh] ;fn fu;qfDr izkf/kdkjh dk ;g er gks fd og ,d mi;qDr 'kkldh; deZpkjh fl) ugha gks ldsxk A Jh pkSgku ds fo:) vuq'kklukRed dk;Zokfg;ksa dk fooj.k fuEukuqlkj gS % & 1- v- Ø- 02@03 esa fnukad 22-12-03 dks pkyku izLrqr gksus ls vkns'k fnukad 16-09-05 }kjk fuyafcr fd;k x;k 2- foHkkxh; vkns'k fnukad 31-03-05 }kjk nks osruo`f) vlap;h izHkko ls jksdh xbZ gS A 3- vk;qDr bankSj laHkkx ds vkns'k fnukad 30-05-06 }kjk ,d osruo`f) vlap;h izHkko ls jksdh xbZ gS A 4- vk;qDr bankSj ds i`- Ø- 358 fnukad 07-02-06 }kjk e/;izns'k flfoy lsok ¼oxhZdj.k fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 16 ds varxZr dkj.k crkvks lwpuk i= tkjh fd;k x;k gS A 5- bankSj ds Kkiu Ø- 1547 fnukad 24-07-06 }kjk e/;izns'k flfoy lsok ¼oxhZdj.k fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 16 ds varxZr fu;e 16 dk dkj.k crkvks lwpuk i= tkjh fd;k x;k gS A The question is whether the termination of service is simpliciter as contended by learned counsel for the State of M.P. or stigmatic as alleged by respective petitioners. Because :: 6 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 if simpliciter, the termination has to be upheld even if no enquiry is conducted. But if the order casts stigma then unless preceded by a departmental enquiry, the order cannot be upheld -
The law on the issue is trite.
In Radhey Shyam Gupta v. U. P. State Agro Industries Corpn. Ltd. (1999) 2 SCC 21, it is held -
34. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case (AIR 1961 SC
177). It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry.
It has been so decided in Champaklal's case (AIR 1964 SC 1854). The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is :: 7 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 started, a charge-memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case (AIR 1968 SC 1089) and in Benjamin's case (1967 Lab LJ 718) (SC). In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case (AIR 1980 SC 1896), the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
35. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature :: 8 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases.
In Pavanendra Narayan Verma v. Sanjay Gandhi P. G. I. of Medical Sciences (2002) 1 SCC 520, their Lordships were please to observe -
21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive :: 9 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz.
what language in a termination order would amount to a stigma ? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."
In State Of U.P. v Ram Vinai Sinha (2010) 15 SCC 305, it is held -
"As per the order of termination, the services of the respondent were terminated on the ground that his services were not required. At the same time, it is not disputed that his juniors were retained in service. Termination of the services of the respondent while retaining his juniors in service was sought to be justified on the ground that he :: 10 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 was found unsuitable in view of the criminal case registered against him. Hence, it was not a termination simpliciter. But before holding that he was unsuitable and terminating his services, no notice was issued to the respondent and no enquiry was conducted and he was not given any opportunity of being heard. Therefore, the impugned termination of service was in violation of the principles of natural justice, illegal and arbitrary. It also offended the provisions in Art. 311(2) of the Constitution of India. Hence, the Tribunal was justified in quashing the order of termination of service of the respondent and the High Court rightly refused to interfere with the order of the Tribunal. The fact that the respondent was subsequently convicted by the criminal court and the matter is pending in appeal will not change the legal position regarding the illegality of the impugned order of termination of service."
When these tests are applied in the case at hand, it is clear from paragraph 4 of each of the order under challenge that the events in the past wherein the petitioners were visited with the show cause notice or even punished has been prime consideration (and non-passing of examination is secondary) while adjudging the suitability of these officers which cast the stigma affecting the future prospects. The termination of service of probationer in such cases is permissible only when departmental enquiry is held in the allegation and decision is :: 11 ::
Writ Petition No.17566/2007, 14774/2008, 14776/08 and 14777/2008 taken after affording an opportunity of hearing.
Since the impugned orders do not satisfy these parameters, they cannot be given the stamp of approval and therefore, are quashed. The respondents, however, would be at liberty to hold an enquiry if they are of the opinion that each of the petitioners will not shape into a suitable Government servant and after affording an opportunity of hearing which will include of recording the evidence, can pass order in accordance with law.
In the result, the petitions are allowed to the extent above. No costs.
Let a copy of this order be retained in connected writ petitions.
(SANJAY YADAV) JUDGE vinod