Allahabad High Court
Vineet Kumar vs State Of U.P. And 4 Others on 9 January, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 28 Case :- WRIT - A No. - 4929 of 2016 Petitioner :- Vineet Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjay Kumar Rai,Sanjay Kumar Rai,Vikas Budhwar Counsel for Respondent :- C.S.C. Hon'ble Siddharth,J.
Heard Sri Vikas Budhwar, learned Counsel for the petitioner and Sri Harish Srivastava, learned Standing Counsel for the respondents.
The petitioner has filed the above noted writ petition, praying for the quashing of the termination order dated 31.10.2015, passed by respondent no.4, Project Director/District Joint Programme Coordinator, Shamli. Further prayer has been made for directing the respondent authority to reinstate the petitioner on his work and pay honorarium to him for the period of termination of his services The petitioner was appointed on the post of Technical Assistant by the Chief Development Officer/ District Programme Coordinator, Muzaffanragar, by the appointment letter dated 29.05.2008, issued by Chief Development Officer/ District Programme Coordinator, District Muzaffarnagar, on contractual basis for minimum period of 1 year. It was provided in the aforesaid appointment letter that in case the petitioner is found guilty in some work or his work is not satisfactory, then on the report of the Programme Officer of the concerned Block and on the recommendation of the appointing authority, i.e., Chief Development Officer/ District Programme Coordinator, Muzaffarnagar and after the approval of the District Magistrate, the petitioner shall be removed from the panel and appropriate legal proceedings shall be taken.
On some complaint made by Sri Narendra Malik, an enquiry was conducted against the petitioner and without supplying him the copy of complaint or issuing any show cause notice, recovery of Rs.39,228/- was ordered against him by the order dated 18.10.2014, by the Programme Director, Shamli.
The petitioner assailed the aforesaid order dated 18.10.2014 before this Court, by way of Writ- A No.20528 of 2015, which was disposed of the direction that the respondent no.4 will afford opportunity of hearing to the petitioner and after considering his explanation/reply of the petitioner within 6 weeks and till then on the recovery against the petitioner in pursuance of the order dated 18.10.2014, passed by the Programme Director, Shamli was stayed.
By the impugned order dated 31.10.2015, the Programme Director has terminated the services of the petitioner in pursuance of some order dated 20.10.2015, passed by the District Magistrate, Shamli, alleging that he has unauthorizedly signed a "Completion Certificate" regarding work of another Gram Panchayat in connivance with the Panchayat Secretary, which was not part of his duty. In the aforesaid Gram Panchayat, there was misuse of funds, amounting to Rs.1,17,683/-and the petitioner was held liable to pay Rs.39,228/-.
The respondents have filed their Counter Affidavit stating that the services of the petitioner were contractual and his contract of service is renewed only if his services are found satisfactory. No government service rules apply to the petitioner and his contractual appointment is renewed on year to year basis. The petitioner signed the "Completion Certificate" for the work done in Gram Sabha Kudana, Vikas Khand, Shamli, which is outside the limit of the area, where the petitioner was appointed. The signing of the same means affirming the quality and quantity of the construction, which the petitioner was not authorized to sign and when the enquiry was done by the District Level Team, misappropriation of government funds was found. The petitioner was aware of the entire facts and he was provided full opportunity of hearing. The recovery is based on the report of the District Level Committee. In his reply dated 16.10.2015, he has admitted that he has made signature on the Completion Certificate due to ignorance and being contractual employee, he has no right to file the writ petition, which is devoid of merits and deserve to be dismissed.
The petitioner has filed Rejoinder Affidavit stating that the petitioner signed the Completion Certificate in dispute, regarding the work of 13th Finance Commission, on the oral direction of the Block Development Officer, Shamli, when the Gram Pradhan and Gram Panchayat Secretary were required to sign the same. The petitioner has been appointed only for the work of MNREGA and not for the work of 13th Finance Commission.
Counsel for the parties have been heard at length.
On the basis of the above pleadings, the learned Counsel for the petitioner has argued that the petitioner has neither being supplied the copy of the complaint, nor any charge sheet was issued to him, nor any enquiry into the allegations made against him were made by the respondents in compliance of the Article -311 of the Constitution of India. The impugned order is not an order of termination of his contractual work simpliciter, but it results into evil consequences of recovery of Rs.39, 228/- against the petitioner and therefore, without proper enquiry into the allegations, with the participation of the petitioner, the impugned order passed against the petitioner can not be justified. The stand of the respondents would have been justified, had the order been of simple termination of contractual service or order refusing to extend/renew his contract of contractual service, but it is not so. Rather, it is punitive order directing recovery of his substantial amount and casting stigma on the work and conduct of the petitioner for all times to come and therefore, the petitioner should have been heard on the complaint and also on the report of the District Level Committee which formed the basis of his punishment. He has further argued that it was required to be ascertained before punishing the petitioner, whether he was actually involved in the financial transaction and was involved embezzlement or he was only the signatory of the Completion Certificate on the direction of a Senior Officer. Without proper enquiry into the allegations against the petitioner, the impugned order passed against him can not be justified.
The learned Counsel for the petitioner has relied upon the Judgment in the case of Jarnail Singh Vs. State of Punjab, (1986) 3 SCC 227, wherein it was held, "22. The petitioners are undoubtedly temporary adhoc employees having no right to the posts they hold. In the case of Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 : (AIR 1958 SC 36) it has been observed by this Court as follows:
" In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima the termination is not, a punishment and carried with it no evil consequences and so Art. 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence. Inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be compiled with......"
(23). In the case of State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234: (AIR 1968 SC 1089) the following propositions were laid down by this Court while considering the question whether in case of termination of service of a temporary servant or a probationer, Art.311(2) of the Constitution would be affected or not. The propositions are as follows:-
"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of this Constitution.
2. The circumstances preceding or attendant on the order of termination have to be examined. In each case the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable from preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Art. 311 of the Constitution.
5. If there be a full scale departmental enquiry envisaged by Art. 311, an Enquiry Officer is appointed, a charge-sheet submitted explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."
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27. The question whether the order terminating the service of a probationer made according to the terms of appointment can never amount to punishment in the facts and circumstances of the case was considered by a Bench of 7 Judges of this Court in the case of Shamsher Singh v. State of Punjab, (1975) 1 SCR 814: (AIR 1974 SC 2192). In that case the services of two Judicial Officers who were on probation were terminated by the Government of Punjab on the recommendation of the High Court under R. 7(3) in Part D of the Punjab Civil Services (Judicial Branch) Rules 1951 as amended. The services of the probationers were terminated without saying anything more in the order of termination. This was challenged on the ground that though the order on the face of it did not attach any stigma, yet the attendant circumstances which led to passing of the order if considered then the orders would amount to have been made by way of punishment violating Art.311 of the Constitution. It has been observed relying on the observations of this Court in Parshotam Lal Dhingra v. Union of India ( AIR 1958 SC 36) by A.N. Ray C.J. as follows:
" No abstract proposition can be laid down that where the serves of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case, if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Art. 311(2) of the Constitution."
(28). This decision was followed and relied upon in the case of Anoop Jaiswal v. Govt. of India, (1984) 2 SCR 453: (AIR 1984 SC 636). In that case the appellant being seleced for appointment in the L.P.S. was undergoing training as a probationer. On a particular day all the trainees arrived late at the place where P.T./unarmed combat practice was to be conducted, although prior intimation was sent to them in this regard. This delay was considered as an incident which called for an enquiry. This appellant was considered to be one of the ring leaders who was responsible for the delay. Explanation was called for from all the probationers. The appellant in his explanation sincerely regretted the lapse while denying the charge of instigating others in reporting late. After receiving the explanations, all the probationers including the appellant were individually interviewed in order to ascertain the facts. On the basis of the explanation and interview, but without holding any proper enquiry the Director recommended to the Government of India that the appellant should be discharged from the service. The Government accordingly passed an order of discharge of the appellant on the ground of unsuitability for being a member of the I.P.C. This order was challenged in the Writ Petition, it has been held as follows:
"Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Curt before which the order is challenged to go behind the form and ascertain the true character of the order, if the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment the Court would not be debarred merely because of the form of the order, in giving effect to the rights conferred by law upon the employee."
29. The order was held to be bad as it was made on the ground of misconduct without affording reasonable opportunity to the appellant to defend himself as provided under Art. 311(2) of the Constitution."
Per contra, the learned Standing Counsel has argued that the petitioner was not a regular employee entitled to protection of Article 311 of the Constitution of India and consideration of his reply was made by the respondent no.4 before passing the impugned order, which is sufficient compliance of Article 14 of the Constitution of India and the petitioner was not entitled to regular enquiry before the impugned order of punishment was passed against him. The case laws relied upon him are not applicable to the facts of the case of the petitioner and the order of recovery of the misappropriated amount from the petitioner along with the punishment of termination of service is justified under the facts of the case.
After consideration of the rival submissions, it is clear that after going through the law laid down by the Apex Court in the case of Jarnail Singh (supra), it is clear that where an employee, temporary, probationer, adhoc, contractual, etc., is removed from service as per the contract of service/terms of appointments, there is no requirement of compliance of Article 311 of the Constitution of India, but if the termination of his services is founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.
In the present case, the services of the petitioner have not been terminated due to non extension of the period of contract or due to termination of contract simpliciter, but his services have been terminated by casting stigma of embezzlement of government funds and by way of punishment in very clear and unambiguous terms. Hence, of compliance of Article 311 of the Constitution of India was necessary for the respondents in doing away with the services of the petitioner and directing recovery of Rs. 39,228/- from the petitioner.
It is further notable that the procedure of termination of service provided in the appointment letter dated 29.05.2009 of the petitioner was that in case the petitioner is found guilty in some work or his work is not satisfactory, then on the report of the Programme Officer of the concerned Block and on the recommendation of the appointing authority, i.e., Chief Development Officer/ District Programme Coordinator, Muzaffarnagar and after the approval of the District Magistrate, the petitioner shall be removed from the panel and appropriate legal proceedings shall be taken. However, a perusal of the impugned order shows that the Programme Director has passed the order on the order dated 20.10.2015 of the District Magistrate, terminating the service of the petitioner, on the basis of report of the Programme Director. Therefore, there was no involvement of the Prgramme Officer and the Appointing Authority i.e., Chief Development Officer/ District Programme Coordinator, Muzaffarnagar in the passing of the impugned order, as per the procedure provided in the appointment letter of the petitioner. Hence on this account also the impugned order can not be sustained.
Therefore, the termination order dated 31.10.2015, passed by respondent no.4, Project Director/District Joint Programme Coordinator, MNREGA, Shamli is quashed. Respondents are directed to reinstate the petitioner on his contractual work and pay honorarium to him for the period of termination of his services, including arrears, within a period of 2 months from the date of presentation of the certified copy of the order before the respondent no.3. However, the respondents are at liberty to pass fresh order in accordance with law.
The writ petition is allowed. No order as to costs.
Order Date :- 09.01.2018 Ruchi Agrahari