Madhya Pradesh High Court
Vijay Barde vs Panchayat And Rural Welfare Department on 13 February, 2020
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
(W.P. No.4680/2017(S)
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S. B.: Hon'ble Ms. Justice Vandana Kasrekar
W.P. No.4680/2017(S)
Vijay Barde S/o Late Shri Dhan Singh
Vs.
The State of M.P. & Another
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Shri Rahul A. Sethi, learned counsel for the petitioner.
Shri Mayank Purohit, learned Govt. Advocate for the
respondents/State.
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ORDER
(Passed on this 13th day of February, 2020) The petitioner has filed the present writ petition under Article 226 of the Constitution of India challenging the orders dated 21/03/2017(Annexure-P/2), passed by the respondent No.2 by which the petitioner's service has been terminated and order dated 12/06/2017(Annexuer-P/3) by which the appeal filed by the petitioner has been rejected.
2. The petitioner was initially appointed as Gram Sahayak and he was working on the said post, but vide order dated 21/03/2017 his services were terminated. Being aggrieved by the said order, the petitioner preferred an appeal, which was also dismissed by the respondent No.2 vide order dated 12/06/2017. Being aggrieved by the said orders, the present 2 (W.P. No.4680/2017(S) writ petition has been filed.
3. Learned counsel for the petitioner argues that the impugned termination order passed by the respondent is illegal, arbitrary and discriminatory. From perusal of the impugned order, it is clear that the termination order is a stigmatic order. It is well settled law that there is a difference between termination simplicitor and stigmatic termination order and stigmatic termination order could not be passed without holding proper enquiry and giving an opportunity of hearing to the petitioner. He further submits that the entire enquiry was conducted behind the back of the petitioner. Thus, in absence of 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 as per the order dated 21/03/2017 issued by the respondent No.2, the petitioner's service was terminated on the ground of negligence of serious nature in construction of toilets under Swach Bharat Mission. He further submits that the learned Collector has erred while passing the impugned order and not appreciating the fact that when the inspection by the authorities was taking place the construction of toilets was still underway and remaining and, 3 (W.P. No.4680/2017(S) therefore, the petitioner was not negligent in his work. He also relied on the judgment of Sirsi Municipality by its President, Sirsi Vs. Cecelia Kom Francis Tellis reported in (1973) 1 SCC 409 and submitted that while passing the impugned orders, the respondents have failed to consider the law laid down by the Apex Court in the aforesaid case. He further submits that the respondents have acted in high handed manner and, without following the instructions/guidelines issued by the Higher Authorities, issued the impugned termination order. Thus, the action of the respondents is unjust and arbitrary. In the present case, neither any proper enquiry has been conducted nor any opportunity of hearing was given to the petitioner before passing the impugned stigmatic order. In such circumstances, he prays that the impugned orders be set aside. He further relied on the judgment passed by this Court in the case of Rahul Tripathi vs. Rajeev Gandhi Shiksha Mission, Bhopal 2001 (3) MPLJ 616 and Prakash Chandra Kein vs. State of M.P. and others 2010 (3) MPLJ 179.
4. The respondents have filed their reply and in the reply they have stated that the petitioner is working as Gram Rojgar Sahayak in Janpad Panchayat, Bhagwanpura. The petitioner's 4 (W.P. No.4680/2017(S) work was to supervise the work being carried out regarding construction of Toilet under Swacha Bharat Mission. That, an inspection was carried on 18/03/2017 by the S.D.O. Khargone, Executive Engineer, Rural Engineering Service and District Project Officer and Chief Executive Officer, Janpad Panchayat, Bhagwanpura at village Jamniya Pani regarding construction of Toilets. During inspection, it was found that Toilets constructed at village Jamniya Pani were not up to the mark and there was compromise with the quality of construction, despite that the petitioner has made payment for the said poor construction work. Learned Govt. Advocate further submits that as the complaint against the petitioner was found proved in the inspection report, therefore, the services of the petitioner has rightly been terminated by the Collector vide order dated 21/03/2017.
5. Heard learned counsel for the parties and perused the record.
6. In the present case, the petitioner was initially appointed on the post of Gram Sahayak. On complaints being received against the petitioner regarding negligence of the petitioner in discharging his duty, an inspection was carried on 18/03/2017 5 (W.P. No.4680/2017(S) by the S.D.O. Khargone, Executive Engineer, Rural Engineering Service, Janpad Panchayat, Bhagwanpura at village Jamniya Pani regarding construction of the Toilets, which was duty of the petitioner to monitor the said construction work, it was found that the actual construction which is carried out on the spot is much less and not upto the mark. On the basis of the said enquiry/inspection report submitted by the higher authorities, the orders impugned has been passed, thereby removing the petitioner from the services vide order dated 21/03/2017.
7. From order of removal dated 21/03/2017, 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 in the case of 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 negligent in discharging his duty. 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 6 (W.P. No.4680/2017(S) also while passing the impugned order has not considered at all this aspect of the matter.
8. In the light of the aforesaid discussions, this writ petition is allowed. The impugned orders dated 21/03/2017(Annexure- P/2) and 12/06/2017(Annexuer-P/3) 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: 2020.02.14 11:01:47 +05'30' 7 (W.P. No.4680/2017(S)