Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sushil Kumar Mishra on 2 March, 2022
Author: Rohit Arya
Bench: Rohit Arya
1
The High Court Of Madhya Pradesh
WA No. 47 of 2020
(THE STATE OF MADHYA PRADESH AND OTHERS Vs SUSHIL KUMAR MISHRA AND OTHERS)
Gwalior, Dated : 02-03-2022
Shri Ankur Modi, learned Additional Advocate General for appellant/State.
Shri Kunal Suryawanshi, learned counsel for respondent No.1.
This appeal by the State of Madhya Pradesh is directed against the order dated 18.07.2019 passed in W.P. No. 3101/2004.
The respondent No. 1-workman was initially appointed on contractual basis on 12.05.1999 as Accountant on terms and conditions inter alia providing for termination of employment in the event his performances found to be unsatisfactory (Condition no. 3 amongst others). The appointment initially was for one year and thereafter has been continued with extension orders issued each year. The respondent No. 1-workman has been terminated by the impugned order dated 13.07.2004 for the following reasons:-
^^lafonk vk/kkj ij dk;ZZjr ys[kkiky Jh lq'khy feJk ds fo:} xou izdj.k es FIR ntZ gksus ds dkj.k ,oa dk;Z O;ogkj vlarks"k tud ik;s tkus ds dkj.k ftyk fu;qfDr lfefr }kjk fy;s x;s fu.kZ; ds dze es budh lafonk fu;qfDr] fu;qfDr 'krksaZ ds vk/kkj ij lafonk lekIr djrs gq, rRdky izHkko ls lsok;sa lekIr dh tkrh gSA^^ After service of show cause notice dated 24.04.2004, it appears that though the respondent No. 1-workman filed reply on 27.04.2004 (Annexure P/7). Respondent No. 1-workman also appears to have demanded documents for defending his case. It further appears that during pendency of enquiry, the respondent No. 1-workman has been terminated by the impugned order dated 13.07.2004.
Learned Single Judge on perusal of the impugned order opined that the impugned order is stigmatic in nature casting stigma of embezzlement and without enquiry, termination of employment is patently illegal. Consequently, the impugned termination order dated 13.07.2004 has been quashed extending liberty to the appellant/State to take appropriate action, if so advised, after following due procedure of law besides 50% back wages and costs of Rs.2000/-.
2Shri Ankur Modi, learned Additional Advocate General for State while taking exception to the impugned order contends that the respondent's engagement by the appellant/State was purely on contractual in nature with expressed condition No. 3, whereunder his services were liable to be terminated if found unsatisfactory. Hence, no exception could have been taken to the impugned termination order being covered by condition No. 3 of the appointment letter. That apart, once the respondent No.1-workman allegedly found involved in embezzlement of public funds, where an FIR has been lodged, his further continuance in the department, that too, on the post of Accountant by no stretch of imagination could have been desirable. Hence dissatisfaction recorded on that account justifying termination was impregnable. Therefore, the learned Single Judge has fallen in error having quashed the termination order. That apart, since the appointment was on contractual basis, he had no lien to the post. Hence, termination of the employment with the award of the back wages in the obtaining facts and circumstances was wholly unwarranted. With the aforesaid submissions learned counsel for the appellant/State prays for quashment of the impugned order.
Per contra, Shri Kunal Suryavanshi, contends that though the initial appointment order was styled as appointment on contractual basis, but in fact the respondent No. 1-workman has been continued without break in service for almost five years. During this period, neither the respondent No. 1-workman has been served with any notice nor any enquiry against him. He has had an unblemished service record. He has performed his duties to the best of his abilities and to the utmost satisfaction of his superiors. The allegations of embezzlement are based on maneuver facts and far from truth. Respondent No.1-workman is innocent and has been falsely implicated. The respondent No.1-workman despite repeated requests was not supplied with relevant documents enabling him to put up his effective defense. To add pain to injury, the appellant instead of completing enquiry in a fair manner, stopped enquiry in midway and terminated the employment with stigmatic reasons, hence impugned termination order suffers from vice of arbitrariness and unreasonableness. By no yardstick, the same could be said to be in conformity with the protection guaranteed under Article 14 and 16 of the Constitution of India.
3With the aforesaid submissions, learned counsel submits that the learned Single Judge did not commit any error of law on fact while quashing the impugned termination order. Since termination order itself is per-se illegal, no exception can be taken to the order for payment of 50% back wages as the same is based on the concept of justice, equity and good concise. Consequently, learned counsel prays for dismissal of the writ appeal.
Heard.
Undisputedly, the respondent's appointment to the post of Accountant was purely on contractual basis for one year and terminable in the event the performance found to be unsatisfactory. It is true that the respondent No. 1- workman has been continued for five years doing the perennial nature of work. Hence significance of continuity of service cannot be subverted with submission that the services were only for one year extendable by issuance of fresh order of appointment. But, regard being had to the nature of appointment, respondent No. 1-workman cannot be said to have any lien on the post to which he can claim as a matter of right. Nevertheless, before termination of the employment, respondent No.1-workman deserved a notice and opportunity of hearing, a minimum requirement underlying the principles of natural justice and concept of rule of law. (AIR 1979 SC 429 referred to). Indeed, a notice was given to the respondent No. 1-workman and he has also filed reply seeking demand of documents necessary to put up the effective defense. However, undisputedly, documents were not supplied. Moreso, before completion of enquiry, the respondent No.1-workman has been terminated under the pretext of condition No. 3 of the appointment letter.
In view of the aforesaid facts and circumstances, in our considered opinion, learned Single Judge did not commit any error of law on fact while setting aside the impugned termination order. Consequently, the respondent No. 1-workman has rightly been ordered to be reinstated. However, we are of the view that regard been had to the nature of employment and the seriousness of the allegations made against the respondent No. 1-workman, the order of 50% back wages was not called for. Accordingly, the said part of the order is set aside. The respondent No. 1-workman shall be taken back in service. However as directed in the impugned order, the appellant/State shall be at liberty to restart the enquiry after supply of 4 relevant documents as demanded by the respondent No. 1-workman and intended to be used against the respondent. Thereafter, the respondent No. 1-workman shall be allowed to file a reply. The appellant/State shall conduct a proper eqnuiry with due observance on principle of natural justice and thereafter shall be free to pass an order.
With the aforesaid, writ appeal stands disposed of.
(ROHIT ARYA) (MILIND RAMESH PHADKE)
JUDGE JUDGE
ar
ABDUR RAHMAN
2022.03.05
12:02:37 +05'30'