Harishchandra Sahu vs State of C.G. and Others

Sunil Kumar Sinha, J.—This appeal is directed against the order dated 10th of February, 2011 passed in W.P.(S) No. 6792 of 2010. By the impugned order, the writ petition filed by the appellant/petitioner has been dismissed by the Writ Court and the order of removal of the appellant/petitioner dated 7.6.2010-(Annexure-P/1) as also the Appellate order confirming the said order i.e. order dated 11.10.2010 (Annexure-P/2) have been upheld. The appellant/petitioner was appointed on the post of Rojgar Sahayak by order dated 15.5.2007 for a period of one year on contract basis. Thereafter his services were extended from time to time. On 13.5.2010 the appellant was served with a notice relating to certain financial irregularities. It was directed that he should file explanation within 24 hours. The appellant filed explanation on 15.5.2010 denying the allegations leveled against him. The appellant contended before the writ Court that the explanation offered by him was not considered and the impugned order of removal dated 7.6.2010 was passed. It was contended that the impugned order was punitive, therefore, a proper opportunity of hearing was required to be afforded.

The writ Court held that the notice dated 13.5.2010 was not for removal from service, but taking police action against the appellant; the order of removal dated 7.6.2010 does not seem to have been passed in pursuant to notice dated 13.5.2010; the Additional Collector in appeal considered the entire issue at length; the appellant being contract appointee cannot claim regularization, continuance or reinstatement in service on the basis of appointment which was temporary for a fixed period; therefore, writ Court relying on various decision of the Supreme Court including Secretary, State of Karnataka and Others Vs. Umadevi and Others, . dismissed the writ petition.

Mr. Sandeep Dubey, learned counsel appearing on behalf of the appellant, argued that the order of removal is punitive in nature; if proper opportunity of hearing would have been awarded to the appellant, he would have explained the causes made basis for passing of the order of removal.

On the other hand, Mr. Rajendra Tripathi, learned Panel Lawyer appearing on behalf of the State/respondents, opposed these arguments and supported the order passed by the writ Court.

We have heard learned counsel for the parties at length and have also perused the records of the writ petition.

The order dated 7.6.2010 (Annexure-P/1 in the writ petition) would show that the appellant who was a contract appointee was removed on the ground that he continuously remained absent in the weekly meeting of Rojgar Sahayak. The other ground was that he unnecessary delayed the payments of the workers engaged in Panchayat work and the third ground was that he remained absent in Gram Suraj Abhiyan. The reply filed by the appellant has been placed on record of writ Court as Annexure-P/9. In his reply, for the first allegation the appellant has said that he was not feeling well and was under treatment, therefore, he could not appear in the meetings. About delay in payments to the workers the appellant submitted that the Bank accounts of the workers were opened within time and allegations are false. About the third ground no explanation was offered in the reply. The Appellate Authority has considered all the aspects of the matter. After perusal of the record, it was found by the Appellate Authority that a cheque of Rs. 1,64,747/- was issued for payment to the workers in Rojgar Guarantee Yojna which cheque was not deposited by the appellant till a long period, therefore, the cheque issued to the appellant was not deposited in the same financial year. We find that the removal of the appellant was not in pursuance of the notice dated 13.5.2010, but it was on the grounds contended in the removal order dated 7.6.2010 and the appellate order dated 11.10.2010.

Admittedly, the appellant was a contract appointee. Though he was working till 7.6.2010 (till dated of removal), but no documents have been filed to show that what was the extended period of the employment of the appellant according to last contract or the last order. We had also asked from Mr. Dubey during the arguments to tell the period of contract appointment of the appellant which was remaining on the date of passing of the order dated 7.6.2010, but he was unable to tell it. Therefore, it is not known to this Court as to whether now any period of appointment is still left or not. Be that as it may, but we find that the services of a contract employee could have been terminated on the above grounds and the order, on account of notice or enquiry cannot be found fault with.

So far as giving show-cause notice or opportunity of hearing is concerned, the Supreme Court held in State of Manipur and Others Vs. Y. Token Singh and Others, , that where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. Even on the basis of reply filed by the appellant to the notice issued to him, he could not show proper reasons against the allegations for not attending meetings, for not making the payments in time and for-being absent in Gram Suraj Abhiyan. The appellant has taken the plea of illness. This would not serve the purpose when no application for leave on account of illness was filed. Therefore, it would be a case in which on the admitted position the removal has taken place and in such case, if a point-wise notice was not issued, that will not effect validity of the order, as the facts were admitted.

So far as argument relating to order being punitive is concerned, in Mathew P. Thomas Vs. Kerala State Civil Supply Corpn. Ltd. and Others, the Supreme Court held that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. In Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, the Supreme Court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. It was stated by the Supreme Court in Para-21 as under:-

One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if anyone of the three factors is missing, the termination has been upheld.

Considering the "above judgments and many other judgments, the Supreme Court held in Chaitanya Prakash and Another Vs. H. Omkarappa, , that the order of termination during probation for unsatisfactory service cannot be said to be stigmatic. Whether there is termination simpliciter due of unsuitability and not on account of punishment for misconduct, the order cannot be held to be punitive.

In the instant case as stated above, the appellant was a contract appointee. In fact, his services were not found satisfactory, therefore, his services were terminated during the course of contract appointment. There are no allegations of misconduct and no punishment has been inflicted upon the appellant. Therefore, it cannot be held that the order was punitive. It was an order of termination simpliciter on account unsatisfactory service of a contract employee and the argument founded on this ground cannot be accepted.

For the forgoing reasons, we do not find any substance in the appeal. The appeal filed by the appellant/petitioner, therefore, is liable to be dismissed and is hereby dismissed. No order as to cost.