Madhya Pradesh High Court
Bharat Singh More vs Panchayat And Rural Development ... on 7 January, 2020
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
(W.P. No.2174/2018(S)
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S. B.: Hon'ble Ms. Justice Vandana Kasrekar
W.P. No.2174/2018(S)
Bharat Singh More
Vs.
The State of M.P. & Ors.
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Shri P.R. Bhatnagar, learned counsel for the petitioner.
Shri A.S. Parihar, learned Panel Lawyer for the
respondents/State.
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ORDER
(Passed on this 7th day of January, 2020) Per Ms. Vandana Kasrekar, J.
The petitioner has filed the present writ petition challenging the orders dated 9/08/2017(Annexure-P/1) and 19/12/2014(Annexure-P/2), passed by the respondent no.3 Commissioner, Indore Division Indore,by which the appeal filed by the petitioner has been rejected and the order of termination/removal from service, issued by the respondent no.2 Collector, Khargone has been confirmed.
2. The petitioner was working on the post of Sub- Engineer under respondent no.5 on contract basis in MGNREGA Scheme of the Government of Madhya 2 (W.P. No.2174/2018(S) Pradesh.
3. On 10/07/2014, some villagers made complaint against the Sarpanch, Rozgar Sahayak and Secretary of the Gram Panchayat, Jaganathpura, Tehsil Goganva alleging financial irregularity by the above persons. On receiving the complaints, the respondent no.5 formed a committee to enquire into the allegations levelled in the complaint vide letter dated 10/07/2014. The Enquiry Committee has conducted the enquiry, in which it has been found that the labours are getting their wages through bank and to ascertain this fact, the Bank record is to be summoned.
The petitioner has also appeared at the time of this preliminary enquiry and no adverse finding has been given against the petitioner by the Enquiry Committee.
4. That, regarding construction of the road from block Goganva to Gram Panchayat, Jaganathpura, a separate enquiry was conducted by the Executive Engineer and Rural Engineering Service, Khargone. The Committee has submitted his enquiry report vide covering letter dated 19/09/2014. In the said Enquiry Report, the Assistant 3 (W.P. No.2174/2018(S) Engineer, MGNREGA has given the finding that the measurement has not been properly recorded in the measurement book by the Sub-Engineer and on the spot the work of around Rs.3,80,000/- has been found but Rs.7,92,088/- has been withdrawn against the construction of the road. Thus, around Rs.4,12,000/- is recoverable from the Assistant Engineer, Sub-Engineer, Rozgar Sahayak/Secretary and Sarpanch of the Gram Panchayat.
5. On the basis of the said enquiry report submitted by the Executive Engineer on 30/09/2014, a show cause notice has been issued to the petitioner by the Collector, Khargone on 30/09/2014 alleging financial irregularity and misconduct. After receiving the said notice, the petitioner has submitted an application on 7/10/2014 seeking relevant documents so that he could file a detailed reply to the show cause notice. After receiving the documents, on 31/10/2014, the petitioner has submitted a detailed rely to the show cause notice stating that wrong entries made in the measurement book were entered by Assistant Engineer and the payment was processed after the verification of the Assistant Engineer. 4
(W.P. No.2174/2018(S) On the basis of the said enquiry, a criminal case has also been registered against the petitioner under Sections 406, 409, 420, 467 and 468 of IPC. The petitioner, thereafter, released on anticipatory bail. It has further been stated that without considering the reply of the petitioner, the Collector has passed the order dated 19/12/2014, thereby removing the petitioner from the post of Sub-Engineer.
6. The aforesaid order dated 19/12/2014 was challenged by the petitioner by preferring a writ petition bearing W.P. No.640/2015. The above writ petition was withdrawn by the petitioner with liberty to file appeal before the competent authority. Accordingly, the petitioner has preferred an appeal before the respondent no.3 i.e., Commissioner, Indore Division, Indore, but the same was returned to the petitioner vide letter dated 13/06/2016 with the endorsement that with respect to the contractual employee, the appeal would lie to the Development Commissioner/Secretary of Panchayat and Rural Development Department. On 15/06/2016, the petitioner preferred an appeal before the Development Commissioner of M.P. State Rozgar Guarantee Council. 5
(W.P. No.2174/2018(S) The Development Commissioner, vide order dated 27/07/2016 has issued the notice to the petitioner for hearing of appeal on 5/08/2016.
7. That, after completion of the hearing, the appeal was closed for orders, but the Development Commissioner has not passed any order in the appeal and vide letter dated 22/02/2017 informed the petitioner that the Divisional Commissioner is authorized to decide the appeal, therefore, the same appeal is preferred before the Divisional Commissioner of the concern Division. The Divisional Commissioner, thereafter, passed an order dated 9/08/2017, thereby rejecting an appeal preferred by the petitioner. Being aggrieved by that order, the present writ petition has been filed.
8. Learned counsel for the petitioner argues that although the petitioner has filed the reply to the said show cause notice, however, the Collector has not considered the said reply on the ground that the same has not been filed. He further submits that the entire enquiry was conducted behind the back of the petitioner. Thus, in absence of 6 (W.P. No.2174/2018(S) detailed and proper enquiry, there is no concrete proof against the petitioner and the finding given on the basis of such erroneous enquiry is not maintainable. He further submits that the Enquiry Officer in its report has stated that because of the mud on the road proper enquiry could not be conducted. He further argues that the orders impugned amounts to stigma. Therefore, it could not have been passed without conducting regular enquiry, even then the petitioner is a contractual employee. He relied on the judgment passed by this Court in the case of Jitendra Vs. State of M.P. & Ors. reported in [2008(4) M.P.L.J. 670] as well as the judgment passed in the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission reported in 2001 (3) MPHT 397.
9. The respondents have filed their reply and in the reply they have stated that the petitioner is appointed on contractual basis for a period of one year and it was extended from time to time. As per Clause - 8.3 of the appointment order, the services of the employee appointed on contractual basis can be ended before stipulated term 7 (W.P. No.2174/2018(S) without any notice. As per Clause - 8.10 of the appointment order, if the petitioner has committed any misconduct or involved in criminal act then the petitioner can be removed form contractual service. As per Clause - 8.11 of the appointment order if the contractual employee remains absent from service for more than one month without any reason and without any imitation then his contractual service will come to end from the date he remained absent. In the present case also, as per the aforesaid clauses the petitioner has committed misconduct and also involved in the criminal activities as well he unauthorizedly remained absent for a period of one month. Therefore, his services were terminated in terms of the aforesaid clauses. It has further been submitted that the road construction work which was sanctioned under the Chief Minister field road project in Gram Panchayat Jaganathpura, certain irregularities were found while inspecting the above road work conducted by the Assistant Engineer and, thereafter, Assistant Engineer has submitted his report and during his inspection, he found thatincorrect/forged entries were made 8 (W.P. No.2174/2018(S) in the measurement book showing excessive work which was not found on the spot. On the basis of the said report, a show cause notice was issued to the petitioner on 30/09/2014. The petitioner has failed to file reply to the said show cause notice within a a period of seven days. Therefore, the services of the petitioner was terminated vie order dated 19/12/2014 against which the petitioner preferred an appeal which was also dismissed. Learned Govt. Advocate submits that the petitioner is a contractual employee and, therefore, no reinstatement can be ordered in his case and he is entitled for the damages only. He further submits that the petitioner is not a civil post holder, therefore, no further enquiry is required to be initiated against the petitioner before terminating his services.
10. The petitioner has also filed a rejoinder and refuted the allegations made therein against him.
11. Heard learned counsel for the parties and perused the record.
12. In the present case, the petitioner was initially appointed on the post of Sub-Engineer on contractual basis 9 (W.P. No.2174/2018(S) in MGNREGA Scheme of the Government of Madhya Pradesh. A comnplaint was made by some of the villagers against the Sarpanch, Rozgar Sahayak and Secretary of the Gram Panchayat, Jaganathpura, Tehsil Goganva alleging financial irregularity by the above persons. Upon receiving the complaints, the respondent no.5 formed a committee to enquire the allegations. Thereafter, has also appeared at the time of this preliminary enquiry, however, no adverse finding has been given against the petitioner by the Enquiry Committee. Regarding construction of the road from block Goganva to Gram Panchayat, Jaganathpura, a separate enquiry was conducted by the Executive Engineer and Rural Engineering Service, Khargone. The Committee has submitted their enquiry report vide covering letter dated 19/09/2014 in which the Assistant Engineer, MGNREGA has found that excess amount has been withdrawn against the construction of road. However, actual construction which is carried out on the spot is much less. On the basis of the said enquiry report submitted by the Executive Engineer, a show cause notice has been issued to the petitioner by the 10 (W.P. No.2174/2018(S) Collector, Khargone. After receiving the said notice, the petitioner filed his reply and, thereafter, the orders impugned has been passed, thereby removing the petitioner from the services vide order dated 19/12/2014.
13. From order of removal dated 19/12/2014, it reveals that no enquiry was initiated against the petitioner and the impugned order amounts to the stigma and, therefore, in the light of the judgment passed by this Court I the case of Jitendra(surpa) as well as Rahul Tripathi(supra), the services of the contractual employee cannot be terminated without holding any enquiry if the said order caste stigma on the petitioner. In the present case also, the services of the petitioner have been terminated on the ground that he was remaining unauthorizedly absent for a period of one month. However, regarding this no notice has been given to the petitioner. Therefore, this cannot be considered as one of the ground for terminating the services of the petitioner. The Appellate Authority also while passing the impugned order has not considered at all this aspect of the matter.
14. In the light of the aforesaid discussions, this writ 11 (W.P. No.2174/2018(S) petition is allowed. The impugned orders dated 9/08/2017(Annexure-P/1) and 19/12/2014(Annexure-P/2) are hereby set aside and the respondents are directed to reinstate the petitioner in services with 50% back wages within a period of three months from the date of certified copy of this order.
With the aforesaid, the writ petition stands disposed of.
(Ms. Vandana Kasrekar) Judge pn Digitally signed by Preetha Nair Date: 2020.01.08 15:46:32 +05'30' 12 (W.P. No.2174/2018(S)