Kamal Kishore Meghwal @APPELLANT@Hash State of Rajasthan & Ors

The petitioner has filed the present writ petition challenging the order dt.03.03.2016 whereby his services from the post of Gram Rojgar Sahayak have

been terminated on account of remaining absent w.e.f. 24.12.2015, as per the condition number 6(ii) of the agreement, entered into by the petitioner

with the respondent-employer.

Brief facts of the case are that the petitioner who claims himself to be a physically handicapped came to be appointed vide order dt.21.06.2008. The

petitioner has averred in his petition that the petitioner being physically handicapped person was drawing pension, however he had submitted an

application for not getting the pension w.e.f.07.09.2015 and yet an FIR came to be lodged in the month of November, 2015 for wrong withdrawal of

the pension. The petitioner has submitted in his petition that he came to be arrested on 25.12.2015 and finally he was released on bail on 29.01.2016.

The petitioner has submitted in his petition that he has submitted his joining report on 03.02.2016 however, he was not permitted by the respondents to

discharge his duties and on the contrary the impugned order dt.03.03.2016 has been passed.

The petitioner has submitted in his petition that the respondents have issued an order dt.18.06.2015 (Annex.-12) wherein the persons who are working

on contract basis in MNREGA were allowed one month leave by the District Collector due to serious illness, accident or unaoidable reasons. The

order further shows that if absence is for more than one month, the Head Office of the Gramin Vikas and Panchayati Raj Department is the

competent authority to grant leave without pay beyond the period of one month.

Mr. Sudarshan Laddha, counsel for the petitioner has submitted that the petitioner was arrested and immediately after his release from jail he had

submitted his joining report and as such he was absent only from 25.12.2015 to 02.02.2016 and the services of the petitioner could not have been

terminated by the respondents in view of circular issued by the Department. Learned counsel has submitted that arrest of the petitioner was beyond

his control and he himself has applied for withdrawal of pension before registration of the FIR.

Counsel for the respondents have filed reply to the writ petition. The respondents have pleaded in the reply that there is specific condition in the

agreement dt.18.05.2015 wherein clause 6(ii) provides that any unauthorized or willful absence from duty for a period of 7 days would entitle the

respondents to terminate the contract. The respondents have further pleaded that the petitioner though had joined as Gram Rojgar Sahayak on

02.07.2008 but he withdrew the pension in wrongful manner and as such the FIR was lodged against him on 02.11.2015 at Police Station Dabi, District

Bundi for offences under Sections 420, 467, 468 & 471 IPC. The respondents have averred in the reply that the petitioner was absent from duty from

26.12.2015 to 03.02.2016 and as such the BDO, Panchayat Samiti Taleda District Bundi had also informed higher Authorities that the work was

suffering due to absence of the petitioner as he was in judicial custody and he had requested to appoint another Gram Rojgar Sahayak.

Learned counsel for the respondents has submitted that in view of specific condition in the agreement, the termination order was rightly passed and

the petitioner is not entitled for any relief. Learned counsel has further submitted that petitioner was drawing the pension as physically challenged

person in wrongful manner and his conduct also does not make him entitle for any relief. Learned counsel has submitted that the order dt.18.06.2015

will have no bearing in the case of the petitioner, as his reasons for the absence, were not beyond his control.

I have heard both the learned counsel and perused the material available on record.

This Court finds that the termination order has been passed as per condition No. 6 (ii) of the agreement as it provides that in case of any unauthorized

or willful absence from duty for more than 7 days, the services of the petitioner can be terminated by the employer without any notice. This Court

finds that the Department itself had issued the order dt.18.06.2015 wherein all the District Programme Coordinator/District Collectors were instructed

to grant one month leave without pay to the persons who are working on contract basis under the scheme and if absence is of more than one month,

such cases were required to be decided by the Head Office. This Court finds that the absence of the petitioner from 25.12.2015 to 02.02.2016 was

beyond his control as a criminal case was registered against him. The petitioner was entitled to be treated as per Government’s own instructions

dt.18.06.2015 and since the petitioner was working since 2008, his services could not have been terminated in such a way.

This Court finds that withdrawal of pension in wrongful manner is not the basis on which the services of the petitioner have been terminated and as

such this fact cannot be a relevant consideration to decide the validity of the impugned order. The absence of the petitioner for more than 7 days will

not automatically result into termination of service in view of circular/order issued by the State Government for all who were working on contract

basis.

The submission of learned counsel for the respondent that the petitioner has to be governed by terms and conditions of the agreement, cannot be

accepted as the Government/Department itself has allowed all the employees working on contract basis in MNREGA one month leave by the District

Collector and in case the absence is of more than one month, the same has to be taken care of by the Head Office on case to case basis.

This Court finds that conduct of the petitioner does not make him disentitled for invoking the jurisdiction under Article 226 of the Constitution of India

due to wrongful manner of drawing pension. Suffice it to say, the services of the peititoner have been terminated on grounds which are beyond the

control of the petitioner and as such objection raised by the respondents, is overruled.

Accordingly, the present writ petition deserves to be allowed and order dt.03.03.2016 is quashed and set aside and it is directed that the petitioner

would be reinstated back in service within a period of four weeks from the date of reciept of copy of this order.