Jharkhand High Court
Mukesh Kumar Rajak vs The State Of Jharkhand on 18 January, 2020
Equivalent citations: AIRONLINE 2020 JHA 1321
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.681 of 2019
With
I.A. No.9892 of 2019
Mukesh Kumar Rajak, aged about 34 years, son of Sri Shivkumar Ram,
resident of vill-Gaji Bihra, P.O.-Pansa, P.S.-Mohammadganj, District-
Palamu, Jharkhand.
. ... Appellant
Versus
1. The State of Jharkhand.
2. The Principle Secretary, Rural Development Department,
Government of Jharkhand, having its office at Project Building,
Dhurwa, P.O.-Dhurwa, P.S.-Jagnathpur, Dist-Ranchi.
3. The Deputy Commissioner-cum-District Magistrate, Palamu, P.O. &
P.S. Daltonganj (now Medininagar), District-Palamu.
4. The Block Development Officer, Pipra, Hariharganj, P.O. & P.S.-
Hariharganj, District-Palamu.
5. The Deputy Development Commissioner, Palamu, P.O. & P.S.
Daltonganj, District-Palamu.
... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Shresth Gautam, Advocate
Mr. Anurag Kashyap, Advocate
For the Respondents : Mr. Rishi Raj Verma, JC to GA-V
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ORAL JUDGMENT
02/Dated 18th January, 2020 I.A. No.9892 of 2019:-
1. The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 20 days in filing the instant appeal.[2]
2. The ground has been raised showing sufficient reason to condone the delay i.e., non-communication with the appellant/writ petitioner, which caused delay of 20 days in filing the appeal and therefore, the prayer has been made to condone the delay otherwise the appellant/writ petitioner will suffer irreparable loss and injury.
3. Mr. Rishi Raj Verma, learned JC to GA-V representing the State of Jharkhand has objected to the reason shown in the interlocutory application.
4. This Court having heard the learned counsel for the appellant/writ petitioner and considering the reason shown in the interlocutory application as sufficient and taking into consideration the fact that instead of dismissing the appeal on limitation it would be just and proper to decide the appeal on merit, therefore, deem it fit and proper to condone the delay of 20 days in filing the appeal, accordingly, the delay of 20 days is hereby, condoned.
5. In the result, the instant interlocutory application is disposed of.
L.P.A. No.681 of 2019:-
6. The instant appeal is under Clause 10 of the Letter Patent against the order/judgment dated 12.06.2019 passed by learned Single Judge in W.P.(S) No.4727 of 2018 whereby and whereunder the order of termination dated 02.07.2018 passed against the appellant/writ petitioner has been declined to be interfered with by dismissing the writ petition.
7. The brief facts which are necessary for proper adjudication of the lis are as under:
The appellant/writ petitioner was appointed on contract to the post of Junior Engineer under the MGNREGA scheme vide Memo No.1728 dated 22.11.2013. The appellant/writ petitioner started discharging his duty, and while posted at Chhatarpur Block, vide order dated 17.12.2013, the allegation was leveled against him [3] that one Dobha has been constructed in another place instead of actual location area for which several inquiries have been made.
The appellant/writ petitioner was directed to file show cause, accordingly, reply to show cause was filed on 20.09.2017 as also inquiry was conducted and finally the reply having not being found to be satisfactory, the order of termination has been passed on
02.07.2018 which was challenged before this Court in W.P.(S) No.4727 of 2018 which has been declined to be interfered with by dismissing the writ petition which is under challenge in the present intra-court appeal.
8. Learned counsel for the appellant/writ petitioner has agitated the ground in assailing the order of termination as also order passed by the learned Single Judge about providing adequate and sufficient opportunity as also the order of termination without regular inquiry.
The submission has been advanced that since the order of termination is on the ground of misconduct which since is stigmatic in nature, hence, a full-fledged inquiry was required to be conducted by the authority before passing the order of termination.
Learned counsel for the appellant/writ petitioner has relied upon judgments rendered by Hon'ble Apex Court in the case of State Bank of India & Ors. vs. Palak Modi & Anr., (2013) 3 SCC 607 and Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & Ors., (2015) 15 SCC
151.
9. Per contra, Mr. Rishi Raj Verma, learned JC to GA-V representing the State of Jharkhand has submitted, defending the order passed by the learned Single Judge wherein the order of termination has been refused to be interfered with, on the ground that since the appointment of the appellant/writ petitioner was purely on contract and therefore, he has got no vested right for continuation of contract.
So far as the contention about conducting full-fledged inquiry is concerned, submission has been made that in a matter of [4] contract appointees, there is no provision provided for conducting regular inquiry rather bare observance of the principles of natural justice is required to be observed which has been observed in the present case, as such, it cannot be said by the appellant/writ petitioner that proper opportunity of hearing was not provided.
10. According to learned State counsel, the nature of order is not stigmatic rather he has been separated from service by not extending the period of contract. According to him, since the termination is simplicitor in nature, hence, no regular inquiry is required to be conducted, moreover, the show cause has been given which has duly been replied by the appellant/writ petitioner and on consideration of it, the impugned decision of termination has been passed, therefore, the contention which has been raised in this regard about non-observance of principles of natural justice, is not attracted.
11. This Court, having heard the learned counsel for the appellant/writ petitioner and on appreciating their rival submissions, deem it fit and proper to refer herein certain undisputed facts.
The appellant/writ petitioner was appointed by the order of Deputy Commissioner-cum-District Programme Co-ordinator, Palamau under MGNREGA Scheme vide Memo No.1728 dated 22.11.2013 as Technical Assistant (equivalent to Junior Engineer) on contract basis.
The consolidated amount of Rs.9,000/- has been agreed to be paid to the appellant/writ petitioner. The offer of appointment contains a condition that if the service will not be found to be satisfactory, the same would be cancelled at any time and for extension of contract, the decision of the Selection Committee would be final and acceptable. It has further been contended in the offer of appointment that an agreement will be arrived in between both the parties.
The appellant/writ petitioner has started discharging his duty and as per the appellant/writ petitioner, however, appointed on [5] contract basis and the period of contract has been extended time to time but while he was posted at Chhatarpur Block, the allegation of commission of irregularity about construction of a Dobha not in the ear-marked place has been leveled which has been found to be true in course of inquiry and therefore, a show cause was issued and served to the appellant/writ petitioner which has duly been replied but the same has not been accepted on the basis of irregularities surfaced in course of two inquiries.
It has been reflected in the inquiry about wrong measurement and illegal withdrawal of money and in consequence thereof, the contract has been cancelled and the appellant/writ petitioner has been separated from service vide order dated 02.07.2018.
The learned Single Judge has declined to interfere with the order of termination on the ground that his appointment was made on the basis of a contract which was cancelled and his service was consequently terminated after consideration of the reply furnished by the appellant/writ petitioner.
12. The appellant/writ petitioner has questioned the aforesaid finding on the ground that there is requirement to conduct full-fledged inquiry keeping the fact into consideration that the order of termination is on certain allegations.
This Court is not in agreement with the aforesaid submission holding it without basis, it is for the reason that admittedly the appellant/writ petitioner has been appointed on contract basis as Technical Assistant under MGNREGA Scheme.
It is evident from the offer of appointment that the appointment made is on contract initially for a period of one year subject to its extension depending upon the satisfactory performance. The appellant/writ petitioner has started discharging his duty but certain allegation of commission of irregularity and illegal withdrawal of money have been leveled.
[6]It is not in dispute that if any appointment is being made on contract basis, the same depends upon the terms and conditions of the contract and any action if decided to be taken by the authority, it depends upon the terms and conditions of the offer of appointment.
It is evident from the terms and conditions of the offer of appointment that the service if found to be not satisfactory, will be cancelled at any time and so far as the extension of the contract after the period of completion of one year, the same depends upon the final decision to be taken by the Selection Committee which would be acceptable, meaning thereby, the contract is to be extended if found to be rendering satisfactory service which can be cancelled if the service would not be found to be satisfactory even in course of subsistence period of contract.
13. So far as the contention as has been raised by the learned counsel for the appellant/writ petitioner that a full-fledged inquiry was required to be conducted but he has failed to draw attention of this Court under which law it has been provided to conduct a full- fledged inquiry before terminating the contract of the contractual engagee.
So far as the requirement to conduct full-fledged inquiry is concerned, the same is to be governed by the Public Servants (Inquiries) Act, 1850 which contains a provision about conducting the inquiry in case of any omission and commission alleged to have been committed by the public servant.
The State of Jharkhand in the light of the Act, 1850 has come out with the Civil Services (Classification, Control and Appeal) Rules wherein the provision for imposing major and minor punishment has been provided, under Rule 55 for imposing major punishment and 55-A for imposing minor punishment.
It has been provided in the aforesaid provision in pursuance to Public Servants (Inquiries) Act, 1850 that before imposing any major punishment as provided under the provision of [7] Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, a regular inquiry is required to be conducted but with respect to imposing minor punishment the requirement of law is to issue show cause notice and on its consideration, the decision is required to be taken, therefore, this Court, is of the view that since the appellant/writ petitioner is a contract engagee, will not be said to be public servant holding the substantive post attracting the applicability of the provision of Civil Services Classification Control and Appeal Rule which contains a provision for conducting a full-fledged inquiry in order to provide adequate and sufficient opportunity, therefore, the contention which has been raised about full-fledged inquiry before passing the order of termination, is not acceptable to this Court, accordingly, the said submission/ground is hereby, rejected.
14. This Court, further is of the view that if any appointment is being made on contract basis, the service will depend upon the terms and conditions of the contract and it is well written in the terms and conditions i.e., offer of appointment, that the contract can be terminated if the service is found not satisfactory and extension can also not be given if the service is not found to be satisfactory.
15. The appellant/writ petitioner while working as Technical Assistant has been found to be involved in commission of irregularities about construction of Dobha not in the ear-marked place as also withdrawal of money which came into surface in two inquiries.
The appellant/writ petitioner was provided with an opportunity to defend by serving him the show cause which has duly been replied, the authority after finding it not satisfactory has decided not to extend the period of contract by rescinding it and separating the appellant/writ petitioner from service.
The rescinding of agreement or contract in consequence thereof, if the service of a contract engagee is being separated, the same cannot be said to be punitive in nature in view of the condition of the offer of appointment about termination of the contract or its extension.
[8]16. Learned counsel for the appellant/writ petitioner has relied upon judgment in the case of State Bank of India & Ors. vs. Palak Modi & Anr. (supra) but the said judgment is not applicable in the facts of the instant case since the issue about non-observance of principles of natural justice in a case of stigmatic dismissal pertains to the appointment which was in the nature of probation. It is evident from the fact of the said case that the appointment has been made under the regular establishment and in that pretext while the employee was on probation, the punitive action of removing from service has been passed and in that context the judgment has been rendered about observance of the principles of natural justice but here in the instant case it is not a case of probation rather the case involved herein is the appointment on contract.
Moreover, it is not the case of the appellant/writ petitioner that the principles of natural justice has not been observed rather admittedly herein the show cause has been given which has been considered and when found not satisfactory, action has been taken by rescinding the agreement, therefore, this judgment is not applicable on facts herein.
17. The judgment relied upon by the learned counsel for the appellant/writ petitioner rendered in the case of Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & Ors., (supra) is also not applicable in the fact since the nature of appointment is under the cadre of permanent establishment and not of the contract.
It is settled position of law that the parameter to proceed for taking action with respect to the permanent appointees and appointment made against the substantive post is different to that of the contract appointees.
The permanent appointees will be governed by the Civil Services (Classification, Control and Appeal) Rules whereas the contractual appointees will be governed by the terms and conditions of the offer of appointment. In view thereof, this judgment is also not applicable in the facts and circumstances of the present case.
[9]18. This Court, after having discussed the matter in detail and after appreciating the finding recorded by the learned Single Judge, is of the view that no infirmity has been committed by showing no interference with the order of termination, accordingly, the present appeal fails and is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saurabh A.F.R.