Akhtar vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.

The petitioner, in this petition impugns the order/notice dated 20.08.2007 (Annexure P/4), whereby after holding the petitioner as guilty of several charges, a notice was issued and order dated 24.11.2007 (Annexure P/6) whereby the services of the petitioner was terminated without affording any opportunity of hearing to the petitioner in the enquiry.

The indisputable facts, in nutshell, are that the petitioner was appointed as Project Officer on 29.06.2006 (Annexure P/1) on contract basis for a period of one year. Thereafter, the services of the petitioner was extended further for a period upto 31st December, 2007. In the meantime, the petitioner was served with a show-cause-notice dated 20.08.2007 (Annexure P/4) holding the petitioner as guilty for having committed serious financial irregularities in purchase of various articles. Pursuant to the said notice, the petitioner filed his reply (Annexure P/5). Having considered his reply, the respondent No. 2 recorded that the reply was not satisfactory. Thus, the services of the petitioner was terminated vide order dated 24.11.2007 (Annexure P/6).

Shri Dubey, learned counsel appearing for the petitioner submits that admittedly, the appointment of the petitioner was upto 31st December, 2007 but the petitioner was removed on the basis of certain serious allegations levelled against him, without holding proper enquiry. The alleged enquiry was held at the back of him and show-cause-notice was issued after finding him guilty of the alleged charges. The petitioner did not have opportunity to put forward his case with regard to the allegations levelled against him as no opportunity of hearing was afforded to him in the enquiry, wherein he was found guilty. 4. Shri Dubey further submits that the impugned order is a stigmatic order and has caused prejudice to the petitioner. The petitioner, thereafter applied for appointment on the post of Project Officer, pursuant to the advertisement dated 23.09.2007. He was not considered on the ground of the stigmatic order dated 24.11.2007 (Annexure P/6).

Shri Thakur, learned Deputy Advocate General appearing for the State/respondents, per contra, submits that the order was not a punitive order and it was termination simplicitor. The petitioner was given opportunity to explain after he was found guilty in the preliminary enquiry. It is admitted that no notice was given to put forward his case in the enquiry which held him guilty of all the charges levelled against him. Shri Thakur further submits that even otherwise, term of the petitioner has come to an end as this was a contract appointment.

I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. It is evident that the preliminary enquiry was held at the back of the petitioner wherein he was found guilty of several financial irregularities. The petitioner had no opportunity to put forward his case in the enquiry, which resulted into holding the petitioner guilty of the charges. A subsequent show-cause-notice dated 20.08.2007 (Annexure P/4) was in the nature of second notice wherein after proper departmental enquiry, issued for the purpose of imposition of punishment.

The Supreme Court in the matter of Anoop Jaiswal Vs. Government of India and Another, has observed in para 12, as under:

It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court 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 a law upon the employee.

The Supreme Court, in the case of Indra Pal Gupta Vs. Managing Committee, Model Inter College, Thora, has observed in para 10 and 11 as under:

It is seen from the letter dated June 30, 1969 by which the services of the appellant were terminated that the resolution of the Managing Committee dated April 27,1969 is made a part of it by treating it as enclosure to that letter. The resolution actually begins with a reference to the report of the Manager, and states that the facts contained in the report were ''serious'' and "not in the interests of the institution". If further refers to the fact that the appellant was asked to give his explanation to the allegations made in the said report. That report stated : It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take that botheration.

The above report was the real foundation on which the decision of the Managing Committee was based. This is a case where the order of termination issued is merely a camouflage for an order imposing the penalty of termination of service on the ground of misconduct.

The Supreme Court, in the case of Radhey Shyam Gupta Vs. U.P State Agro Industries Corporation Ltd. and Another, has observed in para 34, as under:

But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view of punish him and not merely to gather evidence of a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive.

Applying the well settled principles of law to the facts of the case, it is clearly established that the termination of the service of the petitioner was not a termination simplicitor, but on the basis of alleged irregularities and misconduct committed by him without holding proper enquiry. Even in the case of contract appointment, if the removal is on account of certain allegations, the same ought to have been established by affording an opportunity of hearing to the alleged employee. The same has not been done here.

For the reasons and discussion made hereinabove and the dicta laid down by the Supreme Court in various cases, the impugned show-cause-notice dated 20.08.2007 (Annexure P/4) and the order dated 24.11.2007 (Annexure P/6) are quashed. The petitioner is entitled to all the benefits flowing from quashing of the impugned orders.

Shri Thakur, learned Deputy Advocate General submits that the authorities may be granted liberty to issue fresh show-cause-notice holding proper enquiry for serious financial irregularities allegedly having been committed by the petitioner. In the interest of justice where allegations are serious and may affect the exchequer of the State, liberty is reserved to the respondents authorities to hold proper enquiry, if so advised.

Thus, the petition is allowed to the above extent. No order as to costs.