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Madhya Pradesh High Court

Shambhoo Prasad Tiwari vs Madhya Pradesh State Agriculture ... on 6 September, 2023

Author: Sujoy Paul

Bench: Sujoy Paul

                                                          1
                          IN    THE       HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                        BEFORE
                                                   JUSTICE SUJOY PAUL
                                           ON THE 6 th OF SEPTEMBER, 2023
                                           WRIT PETITION No. 13781 of 2014

                         BETWEEN:-
                         SHAMBHOO PRASAD TIWARI S/O LATE CHUNNI LAL
                         TIWARI, AGED ABOUT 47 YEARS, OCCUPATION: ASSTT.
                         GRADE III, OFFICE OF DEPUTY DIRECTOR, MADHYA
                         PRADESH STATE AGRICULTURE MARKETING BOARD,
                         REGIONAL OFFICE, NAPIER TOWN JABALPUR,
                         (MADHYA PRADESH)

                                                                                     .....PETITIONER
                         (BY SHRI K. N. PETHIA - ADVOCATE )

                         AND
                         1.    MADHYA PRADESH STATE AGRICULTURE
                               MARKETING BOARD, THROUGH ITS MANAGING
                               DIRECTOR R/O 26 ARERA HILLS KISAN BHAWAN
                               BHOPAL (MADHYA PRADESH)

                         2.    DEPUTY DIRECTOR, MADHYA PRADESH STATE
                               AGRICULTURE MARKETING BOARD, REGIONAL
                               OFFICE, NAPIER TOWN, JABALPUR (MADHYA
                               PRADESH)

                                                                                   .....RESPONDENTS
                         (BY SHRI SAMRESH KATARE - ADVOCATE )

                               This petition coming on for admission this day, th e court passed the
                         following:
                                                           ORDER

This petition filed under Article 226 of the Constitution takes exception to the order dated 01/09/2014 whereby the petitioner was terminated from service by giving him one month notice as per condition No.1 of appointment order dated 31/08/2009.

2. Shorn of unnecessary details, the relevant facts for adjudication of this matter was that the petitioner while working as daily rated employee was considered for regularization and regularized by order dated 31/08/2009 (Annexure P/4). Certain conditions were mentioned in the said order. Thereafter, petitioner was required to fill-up a verification form and petitioner filled it up on 25/01/2013. The case of the petitioner is that he furnished all necessary information in the said form. The respondents sent a notice to the petitioner on 02/12/2013 (Annexure P/6). In turn, the petitioner submitted his reply dated 20/12/2013 (Annexure P/7). The respondents without conducting any enquiry, passed the impugned order dated 01/09/2014 and terminated the services of the petitioner.

3. Shri K. N. Pethia, learned counsel for the petitioner submits that the petitioner's claim for regularization was duly considered by a Screening Committee and he was regularized by a specific order dated 31/08/2009. There was no element of misrepresentation or suppression on the part of the petitioner in the verification form dated 25/01/2013. The petitioner not only disclosed the factum of criminal cases, enclosed the relevant judgments along with the form which is evident from entry No.12 of the said verification form. Interestingly, submits Shri Pethia, learned counsel for the petitioner that in the show cause notice, there was no allegation that petitioner suppressed any material fact while filling the verification form. Apart from this, the show cause notice shows that the petitioner stood exonerated/acquitted in all the criminal cases except one. The petitioner filed his reply on 20/12/2013 (Annexure P/7) and made it clear that neither on the basis of alleged conviction nor on the basis of any misconduct, any coercive action can be taken against the petitioner. Shri Pethia, Signature Not Verified learned counsel for the petitioner submits that impugned order dated 01/09/2014 Signed by: MANJU Signing time: 9/8/2023 5:07:28 PM 3 is stigmatic in nature.

4. To elaborate, it is argued that a careful reading of the impugned order shows that the respondents mentioned about the criminal cases and thereafter relied upon the alleged misconduct of the petitioner founded upon Regulation 50(1), (10), (13), (15) and (67) of the State Mandi Board Services (Regulations), 1998 (hereinafter referred as 'Regulations'). It is further argued that the termination of probationer by casting stigma amounts to a punitive termination which could not have been done without following the 'due process'. Shri Pethia in support of aforesaid contention placed reliance on a Division Bench Judgment of this Court passed in W.P. No.594 of 2020, State of M.P. and others v. Yogesh Choudhary . In addition, he placed reliance on the Supreme Court judgment reported in (2008) 2 SCC 273, State of M.P. and others vs. Hazarilal. It is urged that the impugned order may be set aside and petitioner who remained out of employment for no fault on his part be reinstated with all consequential benefits.

5. Sounding a contra note, Shri Samresh Katare, learned counsel for employer supported the impugned order. He submits that while regularizing the petitioner vide order dated 31.08.2009 (Annexure P/4), it was made clear that he will remain on probation for a period of two years. If for the purpose of appointment, petitioner furnished any incorrect information or suppressed any material information, his services could be terminated. Thus, impugned order of termination is passed on the basis of those conditions of regularization order dated 31.08.2009 read with show cause notice dated 02.12.2013 and the relevant Regulations.

6. No other point is pressed by learned counsel for the parties.

7. I have heard the parties at length and perused the record.

8. A bare perusal of the verification form filled up by the petitioner makes it clear that it was filled up subsequent to his regularization. Thus, it cannot be said that petitioner got the benefit of regularization by suppressing any material fact. Column-4 of verification form further shows that argument of Shri Pethia has substance that petitioner not only disclosed about the criminal cases, filed relevant judgments alongwith the verification form.

9. The most important aspect of this matter is that when respondents issued the so called show cause notice dated 02.12.2013 (Annexure P/6), it was nowhere alleged that petitioner had suppressed any material fact or misrepresented in any manner. Thus, there was no such allegation in the show cause notice that petitioner was guilty of suppression or misrepresentation. This is trite that an employee cannot be subjected to coercive action or punishment for an allegation which was not a subject matter of charge-sheet/show cause notice (See: AIR 1957 SC 7, Laxmi Devi Sugar Mills Ltd. v. Nand Kishore Singh).

10. Thus, it is clear like noon day that impugned order dated 01.09.2014 cannot sustain judicial scrutiny on the basis of factual backdrop mentioned in the show cause notice dated 02.12.2013 when there existed no allegation of suppression/misrepresentation. Even this notice shows that petitioner stood exonerated in all the cases except one.

11. Even if petitioner was a probationer, a careful reading of impugned order shows that it is stigmatic in nature. Merely because the respondents have terminated the services by invoking condition no.1 of appointment/regularization order, the order will not become an order simplicitor.

Indeed, its punitive element will be apparent if the entire order is minutely Signed by: MANJU Signing time: 9/8/2023 5:07:28 PM 5 examined. At the cost of repetition, the show cause notice dated 2.12.2013 cannot be a reason to take coercive action against the petitioner because in that there was no allegation against the petitioner about suppression/ misrepresentation.

12. The Apex Court in Anoop Jaiswal vs. Government of India and another (1984) 2 SCC 369 opined that the termination of a probationer on the ground of misconduct without holding any enquiry is bad in law.

13. The respondents have also invoked Regulation 34 to terminate the service of the petitioner during probation. If Regulation 34 is examined in juxtaposition to Article 311(2)(a) of the Constitution, it will be clear that it is almost a pari materia provision. Regulation 34 is also analogous to Rule 19(i) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966.

14. If averments of show cause notice dated 02/12/2013 (Annexure P/6) are accepted as such, the petitioner was convicted only in one case i.e. Crime No.115/2008 for committing offence under Section 279 of IPC. The said provision reads as under :-

"279. Rash driving or riding on a public way.- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

15. The Court imposed a fine of Rs.1000/- on the petitioner in the judgment dated 19/11/2011. Thus, ancillary question is whether the conduct of petitioner which led to his conviction was sufficient for imposing the punishment of termination from service.

16. Before dealing with the said aspect, it is noteworthy that in the Signature Not Verified Signed by: MANJU Signing time: 9/8/2023 5:07:28 PM 6 impugned order dated 01/09/2014, on the one hand the respondents have mentioned about the conviction and conduct of the petitioner and invoked Regulation 34 and on the other hand, invoked condition No.1 of the appointment order. The condition No.1 of the appointment order can be used for passing an order of termination simplicitor. In order to punish somebody even if he is a probationer, condition No.1 cannot be invoked. The Apex Court disapproved such termination of a probationer in Anoop Jaiswal (supra).

17. The judgment of Anoop Jaiswal (supra) was followed in Marwari Balika Vidyalaya vs. Asha Srivastava and others (2020) 14 SCC 449. The relevant portion reads as under :-

"23. In Anoop Jaiswal v. Union of India [Anoop Jaiswal v. Union of India, (1984) 2 SCC 369 : 1984 SCC (L&S) 256] , the appellant was undergoing training as a probationer. On a particular day, all the trainees arrived late at the place wherein P.T./unarmed combat practice was to be conducted. An enquiry was initiated and the impugned order of discharge under Rule 12(b) of the IPS (Probation) Rules, 1954 on the ground of his unsuitability for being a member of the IPS. It was held that the order was punitive in nature in absence of any proper enquiry. It was held as under :

"13. ... Even though the order of discharge may be non- committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution."

24. In the present case, the employee has served for five years before dismissal from the service by a stigmatic order, passed without holding an enquiry, we cannot entertain the submission raised by the learned Senior counsel for the appellant School that back wages should be denied. The manner in which termination had been made was clearly arbitrary and the order was illegal and void and thus back wages should follow."

(Emphasis Supplied)

18. So far Regulation 34 is concerned, it can be used with utmost care and caution. The Apex Court in Hazarilal (supra) considered this aspect and opined as under :-

"7. By reason of the said provision, thus, "the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge", but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted."

(Emphasis Supplied)

19. Section 279 of the IPC deals with case of rash driving or riding on a public way. I am unable to hold that for this offence, petitioner's services could have been terminated. In other criminal cases, the petitioner stood exonerated. In cases of exoneration, even if it is based on benefit of doubt, Regulation 34 cannot be used. Regulation 34 can be pressed into service only when the employee is convicted by the Court of competent jurisdiction.

20. In view of foregoing discussion, the impugned punitive termination order cannot sustain judicial scrutiny. Resultantly, the order dated 01.09.2014 is set aside. The respondents shall reinstate the petitioner with all consequential benefits except back wages within 45 days from the date of Signature Not Verified Signed by: MANJU Signing time: 9/8/2023 5:07:28 PM 8 production of copy of this order. It is noteworthy that since petitioner was only convicted under Section 279 of IPC and he remained out of employment for about 09 years, in view of Constitution Bench judgment of Supreme Court in the case of Union of India and another vs. Tulsiram Patel (1985) 3 SCC 398 Para-127, this Court deems it proper to curtail the back wages for the intervening period which will be sufficient to take care of the conviction of petitioner under Section 279 of IPC.

21. Petition is allowed to the extent indicated above.

(SUJOY PAUL) JUDGE manju Signature Not Verified Signed by: MANJU Signing time: 9/8/2023 5:07:28 PM