Madhya Pradesh High Court
Sushil Kumar Mishra vs The State Of M.P.And Ors. on 18 July, 2019
1 WP 3101/04
THE HIGH COURT OF MADHYA PRADESH
W.P. 3101/2004
(Sushil Kumar Mishra Vs. State of Madhya Pradesh & others)
Gwalior Dt. 18/7/2019
Petitioner Sushil Kumar Mishra in person.
Shri Ravi Gupta, Dy. Govt. Advocate for the State.
1. The petitioner by way of this petition filed u/Art. 226 of
Constitution assails the order dated 13/7/2004 contained in P/1 issued by
the District Mission Director-cum-Collector, District Education Centre,
Shivpuri (M.P.) whereby contractual services of the petitioner have been
terminated on the dual grounds that conduct of the petitioner is un-
satisfactory and that the FIR is lodged against the petitioner in respect of
an offence of misappropriation of funds.
2. The petitioner appears in person and is heard.
3. Learned counsel for the State Shri Ravi Gupta is also heard on the
question of admission and final disposal.
4. The facts reveal that petitioner was initially engaged on contractual
basis on 12/5/1999 vide P/2 as an Accountant on certain terms and
conditions contained in the said order of appointment which inter alia
stipulated that appointment is temporary in nature and shall come to an
end on expiry of period of one year for which it has been made and also
that if the work is found un-satisfactory.
4.1 The record reveals that the period of one year of contractual
appointment was extended from time to time and the petitioner continued
to work as an Accountant till passing of the impugned order of
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termination dt. 13/7/2004.
4.2 Before passing of the order of termination, the petitioner was
served with a show-cause notice dated 24/4/2006 vide P/6 asking the
petitioner to explain as to why proceedings under the law be not initiated
against him and also that why FIR be not registered against him in respect
of conduct/acts of misappropriation of funds details of which were
contained in the show-cause notice P/6. The petitioner submitted reply to
the said show-cause notice dated 27/4/2004 vide P/7 and P/7-A seeking
relevant information and documents so as to submit a reply and also
sought a detailed enquiry into the allegations. The District Mission
Director-cum-Collector, Shivpuri thereafter asked the petitioner to appear
on 31/5/2004 vide P/8 dated 26/5/2004 to make his submission and for
recording his statement.
4.3 Pausing here for a moment, it is pointed out by the petitioner that
vide P/16 which is filed alongwith rejoinder, the Collector, Shivpuri on
21/5/2004 directed the Chief Executive Officer, Zila Panchayat, Shivpuri
to take necessary action for terminating contractual services of the
petitioner.
4.4 Pertinently, a discreet and unilateral inquiry was held into the
allegations without supplying the information and documents sought by
petitioner vide P/7 & P/7-A and a report was prepared.
4.5 The allegedly implicative enquiry report dated 5/5/2004 submitted
by the District Project Coordinator, according to the petitioner is not
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implicative in nature. However, whether the said report is exculpatory or
inculpatory, need not be gone into by this court in view of the nature of
order which is being passed herein.
4.6 Bare perusal of the allegedly inculpatory report dated 5/5/2004
makes it clear that without affording reasonable opportunity of hearing,
the finding of guilt has been arrived at.
4.7 More so, the charges found to be proved by the Enquiry Officer are
serious in nature which in the least required affording of reasonable
opportunity as a sine qua non.
5. Reverting to the facts of the case it is seen from the above that
petitioner was asked to appear before the District Mission Director-cum-
Collector on 31/5/2004 vidc P/8 dated 26/5/2004 but much prior to this
date i.e., as early as on 21/5/2004 the Collector made up it's mind to
terminate services of petitioner by directing the competent authority to
terminate the services of the petitioner after finding him guilty in the said
ex-parte proceedings.
5.1 Learned counsel for the State by referring to the show-cause notice
vide P/6 dated 24/4/2004 and the notice asking the petitioner to appear
vide P/8 dated 26/5/2004 submits that reasonable opportunity was duly
afforded.
5.2 Bare reading of the impugned order P/1 reveals that services of the
petitioner were terminated on 2 grounds. The first being that petitioner
was found guilty of embezzlement for which FIR was lodged and the
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other is that the conduct of petitioner was un-satisfactory and therefore
contractual services in terms of clause-3 of the appointment order are
terminated.
5.3 The impugned order of termination on the face of it is stigmatic in
nature since it casts aspersion on the character of petitioner which in the
least required following of reasonable opportunity before being issued.
5.4 Apex Court while deciding the case of Khem Chand Vs. Union of
India & ors. reported in AIR 1958 SC 300 though pertaining to Art. 311
(2) of Constitution of India, had an occasion to summarize the concept of
reasonable opportunity as follows which is reproduced below to the extent
it relates to the present case :-
(19) To summarize : the reasonable opportunity
envisaged by the provision under consideration includes :-
(a) An opportunity to deny his guilt and establish his
innocence, which he can only do if he is told what the
charges levelled against him are and the allegations on
which such charges are based;
(b) an opportunity to defend himself by cross examining
the witnesses produced against him and by examining
himself or any other witnesses in support of his
defence; and finally
(c) an opportunity to make his representation as to why
the proposed punishment should not be inflicted on him,
which he can only do if the competent authority, after
the enquiry is over and after applying his mind to the
gravity or otherwise of the charges proved against the
government servant tentatively proposes to inflict one
of the three punishments and communicates the same to
the government servant.
5.5 In a similar matter involving termination of services of contractual
employee working in Rajeev Gandhi Shiksha Mission, Bhopal by a
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stigmatic order, single bench of this court in the case of Rahul Tripathi
Vs. Rajeev Gandhi Shiksha Mission, Bhopal and Ors. reported in ILR
2001 SC 1144 where from the standpoint of a stigmatic order, distinction
between motive and foundation was explained following the decision of
Apex Court in Chandra Prakash Shahi Vs. State of U.P. & Ors; (2000)
5 SCC 152, which inter alia held thus:-
"28. The important principles which are deducible on the
concept of "motive" and "foundation", concerning a
probationer, are that a probationer has no right to hold the post
and his services can be terminated at any time during or at the
end of the period of probation on account of general
unsuitability for the post in question. If for the determination of
suitability of the probationer for the post in question or for his
further retention in service or for confirmation, an inquiry is
held and it is on the basis of that inquiry that a decision is taken
to terminate his service, the order will not be punitive in nature.
But, if there are allegations of misconduct and an inquiry is held
to find out the truth of that misconduct and an order terminating
the service is passed on the basis of that inquiry, the order
would be punitive in nature as the inquiry was held not for
assessing the general suitability of the employee for the post in
question, but to find out the truth of allegations of misconduct
against that employee. In this situation, the order would be
founded on misconduct and it will not be a mere matter of
"motive".
29. "Motive" is the moving power which impels action for a
definite result, or to put it differently, "motive" is that which
incites or stimulates a person to do an act. An order terminating
the services of an employee is an act done by the employer. What
is that factor which impelled the employer to take this decision?
If it was the factor of general unsuitability of the employee for
the post held by him, the action would be upheld in law. If,
however, there were allegations of serious misconduct against
the employee and a preliminary enquiry is held behind his back
to ascertain the truth of those allegations and a termination
order is passed thereafter, the order, having regard to other
circumstances, would be founded on the allegations of
misconduct which were found to be true in the preliminary
inquiry."
5.6 When the factual matrix of the case is tested on the touchstone of
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reasonable opportunity it is seen that impugned termination is vitiated in
the eye of law as no reasonable opportunity was afforded to the petitioner
before his services were put to an end. The least that was required from
the employer was to furnish the adverse material which was used against
petitioner for casting stigma on him and to afford him an opportunity of
replying to the same and thereafter the employer was required to prove the
charges, followed by affording of opportunity to the petitioner by way of
cross-examination of the witnesses produced in support of the charges
and thereafter allowing petitioner to produce evidence in support of his
defence. None of these basic foundational elements constituting
"reasonable opportunity" were satisfied by the employer.
5.7 It is settled principle of service jurisprudence that an order which
casts stigma on employee ought to be preceded by affording of reasonable
opportunity or else the same is vitiated in law.
5.8 The Division Bench of this court in W.A.1166/2017 (Malkhan
Singh Malviya Vs. State of M.P.), decided on 8/3/2018 has applied the
concept of following reasonable opportunity as a sine qua non even for
temporary and contractual employment. Relevant paras of the said
decision are reproduced below:-
"6. Learned counsel for the petitioner has relied upon
the decision of this Court in the case of Rahul Tripathi
Vs. Rajeev Gandhi Shiksha Mission, Bhopal and Ors.
reported in ILR 2001 SC 1144 to contend that in
circumstances similar to the one attending the instant
case, this Court in the case of Rahul Tripathi, who was
also a contractual employee working under the same
Rajeev Gandhi Shiksha Mission, had set aside the
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termination by finding the same to be stigmatic and yet
not preceded by any inquiry in accordance with law
except a show cause notice. It is submitted that the Single
bench in the said case of Rahul Tripathi placed reliance
on the decisions of Apex Court in the case of Shamsher
Singh Vs. State of Punjab reported in AIR 1974 SC 423,
State of U.P. Vs. Ramchnadra Trivedi; AIR 1976 SC
2547, Dipti Prakash Banerjee Vs. Satvendra Nath Bose
National Centre for Basic Sciences, Calcutta & ors.;
AIR 1999 SC 983, Radheshyam Gupta Vs. U.P.
Industries Agro; (1999) 2 SCC 21 & Chandra Prakash
Shahi Vs. State of U.P. & Ors; (2000) 5 SCC 152, where
from the standpoint of a stigmatic order, distinction
between motive and foundation was explained. The single
bench of this Court in Rahul Tripathi (supra) truncated
the order of termination assailed therein. Reliance is
further placed by petitioner on recent decision of Division
Bench of this Court in WA. 528/2015 (Paramjeet Singh &
Anr. Vs. The State of M.P. & Ors) rendered on 13th June,
2016 where similar view has been taken by following the
decision in the case of Rahul Tripathi (supra).
7. It is seen from the pleadings in WP No. 1029/2009
(s) that petitioner had categorically raised the ground of
termination being stigmatic not preceded by inquiry
following the principle of natural justice where
reasonable opportunity to defend the charges of
misconduct was afforded to him.
8. A bare perusal of the impugned order (Annexure P-
6) dated 27.01.2009 reveals that misconduct about
misappropriation of books alleged against the petitioner
on 01.01.2009 and 09.01.2009, for which show cause
notice was issued after conduction of preliminary inquiry,
was found to be proved even before considering the reply
(Annexure P-5), but without affording reasonable
opportunity to the petitioner to rebut the charges of
misconduct by adducing evidence, before the services of
the petitioner were terminated.
10. A bare perusal of the above termination order
reveals that the same is stigmatic in nature in asmuch as
blaming the petitioner for a serious misconduct of
misappropriation of certain Government material without
conducting any inquiry into the alleged charges. The only
inquiry shown to be conducted as is evident from the
recital of termination order is preliminary inquiry
conducted behind the back of petitioner by District Project
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Coordinator, District Education Centre, Vidisha.
Thereafter the competent authority has issued show cause
notice dated 13.01.2009 and after taking into account the
reply (Annnexure P-5) of the petitioner where he denied
the charges in toto, the competent authority accepted the
finding rendered in the preliminary inquiry of the
misconduct being proved.
11. Undoubtedly, the termination order castes stigma /
blemish on the future career prospects of the petitioner by
finding him guilty of serious misconduct. The least that is
required under the principle of natural justice is that a
reasonable opportunity should be afforded before
criticizing the character of an individual. The reasonable
opportunity is by way of holding an inquiry where specific
charges of misconduct are informed to the delinquent
employee followed by a reasonable opportunity of filing
reply, supply of all the adverse material proposed to be
used against the delinquent employee, adducing of
evidence in favour and against the charges in the presence
of delinquent employee and thereafter to render a finding
of misconduct or otherwise and the consequential order. It
is needless to emphasize that further opportunity to the
delinquent employee to have a say on the question of
quantum of punishment would only rise if the delinquent
employee holds the post on substantive basis or there are
any enabling statutory provisions or executive instructions
obliging the competent authority to do so. But since the
petitioner was contractual / temporary employee no such
further opportunity on the question of quantum of
punishment is required to be given.
13. Reverting to the facts of the case, it is noticeable
that before casting stigma on the petitioner by holding him
guilty of misconduct, a mere preliminary inquiry report
prepared behind the back of the petitioner and reply of
petitioner to the show cause notice was considered by the
competent authority before issuing order of termination of
service. The misconduct as alleged in the show cause
notice and the preliminary inquiry conducted behind the
back of the petitioner were the foundation of the
termination. The termination was not merely on the basis
of finding the services of the petitioner to be no more
required but because he was found guilty of the
misconduct.
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14. In view of the above, the order of termination of
petitioner contained in Annexure P-6 is unsustainable in
the eye of law being stigmatic and yet not preceded by
affording of reasonable opportunity. Consequently, the
impugned order passed in WP No. 1029/2009(s) dt.
26.09.2017 is set aside and the termination dated
27.01.2009 is quashed with liberty to the employer to
proceed against the petitioner in accordance with law, if
so advised.
6. This court would be failing in it's duty if the issue of a contractual
employee being entitled or not to raise ground of non-affording of
reasonable opportunity before passing of stigmatic order of termination, is
not addressed.
6.1 Undoubtedly, petitioner was a contractual employee whose service
conditions were governed by the terms and conditions of the
contract/appointment order, which inter alia confer the Collector-cum-
Distt. Mission Director with power to terminate services without notice.
6.2 The employer of petitioner was the Rajiv Gandhi Shiksha Mission
a registered society with the Chief Minister as Ex-officio Chairperson.
The object of the society is universalisation of elementary education
which is purely public in nature thereby making the public law remedies
and trappings applicable. (See: Ajay Hasia Vs. Khalid Mujib Sehravardi
& others reported in AIR 1981 SC 487).
6.3 Once it is found (supra) that the employer of petitioner was
discharging public functions, then it goes without saying that the actions
and orders of the respondent Mission and it's functionaries become
amenable to judicial review as if the Mission is an instrumentality of the 10 WP 3101/04 State as defined in Article 12 of the Constitution. 6.4 To pass the test of judicial review an administrative order is required to be free from the vice of arbitrariness. 6.5 An order of the like of impugned order herein, is palpably stigmatic as it terminates the services by casting the stigma of embezzlement without affording reasonable opportunity of being heard.
7. In view of the discussion above, this court has no hesitation to hold that the impugned order of termination is vitiated in the eye of law.
8. As regards the relief claimed by the petitioner of consequential benefit of arrears of salary this court is constrained to observe that the petitioner is a contractual employee and is alleged with certain financial irregularity and therefore this court is dissuaded from awarding full back wages and instead directs award of 50% back wages since the order impugned has been held to be vitiated in the eye of law.
9. Consequently, the petition stands allowed in following terms:-
(1) The impugned order dated 13/7/2004 vide P1 issued by the Collector-cum-District Mission Director, District Education Centre, Shivpuri stands quashed.
(2) However since allowing of the petition is on technical ground of absence of reasonable opportunity, the employer is at liberty to take appropriate action if so advised after following due process of law.
(3) Since the charges against the petitioner are of financial irregularity, the petitioner would not be entitled to full back wages but only 50% back wages shall be paid to the petitioner by treating the petitioner to be in service as if the impugned order of termination was never passed.11 WP 3101/04
(4) Cost of this petition is quantified at Rs. 2,000/-
(Rs. Two Thousand) to be paid by the Mission to the petitioner by way of digital transfer of funds into the bank A/c of petitioner as per details furnished by petitioner to District Mission Director-cum-Collector, Shivpuri.
10. The aforesaid directions be complied with within a period of 90 (ninety) days from the date of receipt of certified copy of this order.
No cost.
(Sheel Nagu) Judge (Bu) 2019.07.2 3 18:43:53 +05'30'