Madhya Pradesh High Court
Brahamdutta Gupta vs State Of Madhya Pradesh And Ors. on 5 March, 2004
Equivalent citations: 2004(2)MPHT510
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Petitioner who was working in the post of Accounts Officer, Municipal Corporation, Gwalior and had retired from service on attaining the age of superannuation on 30-6-2003, feels aggrieved by action of the respondents in passing order Annexure P-1 dated 7-8-2003 withdrawing an earlier order dated 28-6-2003, granting contract appointment to the petitioner for a period of one year after his retirement.
2. Case of the petitioner is that he had a long experience of working in the Accounts Section of Municipal Corporation, Gwalior and considering his experience and requirement in the Municipal Corporation after his retirement on 30-6-2003, a resolution was passed by the Mayor in Council vide Annexure P-3 on 24-5-2003 resolving to grant contract appointment to the petitioner for a period of two years after his retirement. The aforesaid resolution was forwarded to the State Government and sanction and permission was granted by the State Government vide order Annexure P-4 dated 28-6-2003. for appointing the petitioner on contract basis for a period of one year with effect from 1-7-2003.
3. It is stated that the petitioner joined and was working when intervenors filed a writ petition in the nature of a Public Interest Litigation challenging the order of contract appointment issued to the petitioner. When notice on the aforesaid Public Interest Litigation was issued, instead of justifying the action the Government and the Corporation withdrew the order of appointment, granted in favour of the petitioner by the impugned order Annexure P-1 and reported to the Division Bench of this Court that the appointment of the petitioner has been withdrawn. The Public Interest Litigation was dismissed as having rendered infurctuous, contention of the petitioner in the present petitioner is that the respondent Municipal Corporation having resolved to appoint the petitioner for two years and the Government having appointed the petitioner for one year, terminating his service before the period stipulated in the order is illegal and arbitrary.
4. It was vehemently argued by Shri H.D. Gupta, learned Counsel for the petitioner that the termination is because of allegations levelled in the Public Interest Litigation with regard to illegality said to have been committed by the petitioner and terminating the service on the ground of such illegality without conducting enquiry is unsustainable. It was argued by learned Counsel that, removal amounts to casting stigma on the petitioner and therefore by applying the theory of lifting of the veil, as termination is on the allegations levelled in the Public Interest Litigation, petitioner was entitled to opportunity of hearing and therefore, it was submitted that the termination is illegal.
5. In support of his contention learned Counsel for the petitioner places reliance on the following judgments : Rahul Tripathi v. Rajeev Gandhi Shiksha Mission, Bhopal and Ors., 2001 (3) M.P.H.T. 397, Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. and Ors., 2003 (3) SCC 263, Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr., 1999 (2) SCC 21, Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101, The State of Assam and Ors. v. Akshaya Kumar Deb, AIR 1976 SC 36.
6. Respondents and intervenors have refuted the aforesaid and it is the case of the respondents that as the petitioner's appointment was purely contractual in nature, it could be withdrawn by giving one month notice by either side and if the notice was not given the only relief that can be claimed by the petitioner is only payment of notice pay.
7. Shri S.B. Mishra, learned senior Counsel appearing for the intervenors submitted that the petitioner does not have any right to continue in the office, when the irregularities committed in the matter of his contract appointment were highlighted by the intervenors in the Public Interest Litigation. State Government and Municipal Corporation have withdrawn the order. In that view of the matter it is submitted that the petitioner cannot claim any relief.
8. I have heard learned Counsel for the parties and perused the record. Admittedly, the petitioner completed the entire tenure of service and was superannuated on attaining the age of superannuation on 30-6-2003. Subsequently, his appointment was a contract appointment for one year. Contract appointment is governed by the conditions stipulated in the circular issued by the State Government dated 10-8-1989 filed as Annexure P-7 by the petitioner. In the said circular itself it is stipulated that a contract appointment appointing an employee after retirement can be terminated by either side by giving one month notice or wages in lieu thereof. That being so the termination of contract appointment in the present case is strictly in accordance with the conditions governing the terms of such appointment. The petitioner having completed his tenure of appointment could only claim benefit of the contract on the basis of which he was appointed after his superannuation.
9. The question of applying the theory of lifting of the veil and stigma being caused in terminating the appointment is prima facie not applicable in such cases of contract appointment. The petitioner was only entitled to a month notice or salary in lieu thereof and nothing more. The judgments referred to by learned Counsel with regard to casting of stigma and lifting of veil are all cases pertaining to terminating the service of an employee, who has not completed tenure of his service or they are cases pertaining to terminating the service of probationer and temporary employee. None of these cases relates to termination of a pure contractual appointment as per the contract.
10. Even otherwise if the case of the petitioner is examined with reference to the question of casting of stigma and opportunity of hearing, It is now well settled that if the allegations or irregularities which is complained of being the reason for termination is only a motivating factor, then no enquiry is necessary. It is well settled in law that enquiry or hearing is required only in such cases where the allegations is the foundation for taking action. In the present case as indicated hereinabove, petitioner had already retired, he was on contract appointment. His appointment was challenged on various grounds in W.P. No. 1867/2003 (PIL) by the intervenors before this Court. Even though intervenors had levelled various allegations against the petitioner, the respondents instead of contesting the petitioner thought it appropriate to withdraw the contract appointment.
11. It is therefore, clear that that Public Interest Litigation filed against the petitioner and the allegations, if any contained in the same only motivated the respondents to terminate the contract. It cannot be said that, it was the foundation for terminating the service of the petitioner. The question with regard to motive and foundation has been considered by the Supreme Court in a series of cases and finally the matter has been considered in the case of Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors., 1993 (3) SCC 60, Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr., 2002 (1) SCC 520. Supreme Court in the case of Mathew P. Thomas (supra), after considering various judgments has observed as under :--
"From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorise or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter or a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the fact of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to gel rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in realty removed from service on the foundation of his misconduct.
12. The facts and circumstances of the present case as anlysed here-
inabove clearly indicate that the respondents decided to terminate the contract appointment in accordance with the terms and conditions of the contract by innocuous order, simpliciter in nature and not on the basis of any allegations.
Even if Public Interest Litigation and the allegations made therein had any bearing for taking the action, it only motivated the respondents to take action, It cannot be said that allegations in the Public Interest Litigations formed the basis for terminating the contract of the petitioner.
13. In that view of the same, considering the legal position as has been indicated hereinabove, I find no ground to interfere in the matter.
14. Accordingly, petition stands dismissed without any order as to costs.