Arun Kumar Mishra vs State of Madhya Pradesh and Others

Hon''ble Shri Justice Sujoy Paul

In this writ petition under Article 226 of the Constitution, the petitioner initially prayed for payment of salary but during the pendency of the petition by order dated 15.8.2003 (Annexure P/6) his services were terminated which was challenged by him by way of amendment. Shri Raghuvanshi submits that petitioner was appointed by order dated 6.2.1998 and he was continued and without affording any opportunity of any nature his services were abruptly terminated by Annexure P/6, dated 15.8.2003. Learned counsel submits that a bare perusal of the letter dated 22.8.2003 (Annexure P/3) shows that "Palak-Shikshak Sangh" and Gram Sabha requested for continuance of the petitioner. It is also mentioned in Annexure P/4 that petitioner be continued as "Guruji". In nutshell, learned counsel for the petitioner by placing reliance on attendant sheet and other documents submits that the petitioner''s services were terminated without following the principles of natural justice, which is impermissible in law.

Per Contra, Shri Newaskar submits that petitioner does not have any statutory or substantive right to continue as "Guruji". His appointment was on the honorarium of Rs.500/- per month. He supported the order Annexure P/6. It is further submitted that certain EGS centres have been abolished.

I have heard the parties at length and perused the record.

A perusal of the matter shows that petitioner was not appointed on any substantive post. His appointment was only on payment of Rs.500/- as honorarium. The respondents have taken a stand during arguments that certain EGS centers have been abolished. However, it is not clear that whether the EGS centre where the petitioner was working is also abolished.

This is not in dispute between the parties that before terminating the services of the petitioner no opportunity of any nature was given to the petitioner.

The Apex Court in Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, has held that any order which entails civil consequences should be passed only after following the principles of natural justice. The following quotes will establish the importance of following the principles of natural justice:-

Principles of natural justice are to some minds burdensome but this price - a small price indeed-has to be paid if we desire a society governed by the rule of law."

even God himself did not pass [a] sentence upon Adam before he was called upon to make his defence. Adam (says God), where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?....

In Lloyd v. McMahon 17 (AC pp.702 H-703 B), it was held as under:-

My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.

The Apex Court in Radhy Shyam v. State of U.P., reported in (2011) 5 SCC 55, held as under:-

The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three-Judges Bench in Sayeedur Rehman Vs. The State of Bihar and Others, in the following words:

11 This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.

In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , Krishna Iyer, J. speaking for himself, Beg, C.J. And Bhagwati, J. highlighted the importance of the rule of hearing in the following words:

Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy Government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adamand of Kautilyas Arthashastrathe rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.

The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

In view of the aforesaid principles of law laid down by Supreme Court, I have no hesitation to hold that principles of natural justice were not followed in the present case, which were required to be followed. The aforesaid violation has caused great prejudice to the petitioner because as per the stand of the petitioner, he was not absent and even the Palak-Shikshak Sangh has recommended for his continuance in his favour. If petitioner would have been noticed as per principles of natural justice, he would have been in a position to demonstrate the same. Thus, the impugned order cannot sustain judicial scrutiny being violative of principles of natural justice. Considering the aforesaid, the impugned order of termination of services (Annexure P/6) is set aside. Since impugned termination order casts stigma, therefore even if petitioner was a Guruji and was not substantively holding a post, should have been afforded an opportunity before passing of impugned order. I do not find any force in the argument of Shri Newaskar that since the petitioner does not have any statutory right to hold the post, his services can be terminated in whatever manner employer wants. This argument runs contrary to the mandate of Article 14 of the Constitution. Fairness is an integral part of good administration. Following principles of natural justice, meeting the points raised in the defence and assigning reasons are part and parcel of fair play in administration. Apart from this, since the Gurujis who were continued in employment were absorbed subject to screening test etc., the petitioner could have been absorbed if he would have been continued by the employer.

In this view of the matter, while setting aside Annexure P/6, liberty is reserved to the employer to issue show cause notice confined to the reasons on the basis of which Annexure P/6 was issued. This show cause notice be issued within 30 days from the date of receipt of certified copy. The petitioner may file his reply to said show cause notice within 15 days. The employer shall pass final order in accordance with law within 30 days therefrom. If petitioner''s defence is found to be justiciable, the employer shall pass appropriate orders and shall deal with the question of availability of post in EGS centre. The final order shall also deal with the intervening period if petitioner is decided to be reinstated. With the aforesaid observation, petition stands allowed. No costs.