Ku. Raksha Fagna vs State Of M.P. & others.

The petitioner has filed the present petition being aggrieved by the order dated 27.3.2018 passed by respondent No.3 - Chief Executive Officer, Janpad Panchayat, Tarana, District Ujjain, whereby she has been terminated from service.

The facts of the case, in short, are as under :

(i) The petitioner was appointed vide order dated 24.9.2012 as Gram Rojgar Sahayak in Gram Panchayat, Bagwara, Tehsil Tarana, District Ujjain. According to the petitioner, she was discharging her duties sincerely, diligently, and to the best of her abilities.

(ii) Respondent No.4 became Surpanch of Gram Panchayat Bagwara in the year 2015 and started troubling the petitioner as her Uncle had contested the election of Surpanch of Gram Panchayat against him. The Father of the petitioner Shri Bhagwansingh, Assistant Teacher was appointed as a Nodal officer for verification of beneficiaries under the "Prime Minister Housing Scheme". Since he did not approve the list of ineligible beneficiaries submitted by respondent No.4, therefore, he has got lodged the false and frivolous FIR at Crime No.90/2017 in Police Station Makron, Tehsil Tarana, District Ujjain against her father , and all other family members including her for the alleged offences u/s. 353, 186, 504, 506/34 of the IPC on 19.2.2017. That Father of the petitioner somehow got lodged the FIR under Crime No.94/2017 on 20.2.2017 against respondent No.4 in the same police station.

(iii) According to the petitioner, at the instance of respondent No.4, she was attached to the office of Janpad Panchayat, Tarana vide order dated 23.5.2017 although, transfer of Gram Rojgar Sahayak is not permissible, but the petitioner gave her joining on 30.5.2017 in the office of respondent No.3. During the attachment, she was being paid the regular monthly salary. The police have filed the challan against the petitioner and her family members before the trial Court on 14.11.2017, but the d trial Court has found the charges are false, frivolous and fabricated, hence returned the challan and discharged all of them from the charges. The State preferred a revision in which the order of trial Court dated 14.11.2017 has been quashed and the matter has been remanded back.

(iv) All of a sudden vide order dated 27.3.2018 services of the petitioner have been terminated and according to her, the aforesaid impugned order has been passed at the instance of respondent No.4, hence instead of challenging the impugned order in appeal she chose to file the present petition before this Court.

The petitioner has assailed the impugned termination order mainly on two grounds viz. (i) respondent No.3 has no authority or jurisdiction to terminate her services of Gram Rojgar Sahayak ; and (ii) the impugned order has been passed in gross violation of principles of natural justice and without issuing any show-cause notice to her.

While entertaining the writ petition, this Court also turned down the preliminary objection taken by the respondents about the availability of an alternative remedy. Vide order dated 18.4.2018, while issuing the notices to the respondents, this Court has stayed the operation and effect of the impugned order dated 27.3.2018.

After notice, respondents No.1 to 3 have filed the return by submitting that show-cause notice dated 6.8.2016 was issued to the petitioner in respect of her negligence and poor working and despite the aforesaid notice, she did not improve her working, therefore, the Chief Executive Officer, Janpad Panchayat in exercise of powers conferred as per circular dated 3.6.2017 rightly took disciplinary action against her by terminating from the services. Respondents No.1 to 3 have also alleged that despite the interim order dated 18.4.2018, the petitioner did not join the duties in the office of Gram Panchayat. Vide letter dated 13.6.2018, the Surpanch of Gram Panchayat has informed the Programme Officer, MANREGA, Janpad Panchayat, Tarana that despite the stay order granted by this Court, the petitioner is not attending the office.

Respondent No.4 has also filed the return specifically denying the allegations of mala fide levelled against him. According to respondent No.4, the termination of the petitioner was justified because of her unsatisfactory services in the Gram Panchayat. The Chief Executive Officer, Janpad Panchayat is a competent authority to terminate the services of Gram Rojgar Sahayak. The petitioner is having an alternative by way of first appeal and second appeal.

Respondent No.5 without filing the return has orally supported the arguments advanced by learned counsel appearing for respondents/State as well as respondent No.4.

At the very outset, Shri L.C. Patne, learned counsel appearing for the petitioner, submits that he is not pressing the ground in respect of the authority of Chief Executive Officer, Janpad Panchayat in view of circular dated 3.6.2017, however, the ground of violation of principles of natural justice to the impugned termination order is still available to the petitioner. That petitioner has been terminated from service without giving an opportunity of hearing, by way of stigmatic order. He has drawn the attention of this Court to Clause 16 and 18(15) of the circular dated 2.6.2012 issued in respect of service conditions of Gram Rojgarh Sahayaks. He has also referred condition No.8 of the appointment order, whereby Gram Rojgar Sahayak is appointed to a particular Panchayat and the said appointment is not transferable. As per Clause 15, if Gram Rojgarh Sahayak is found to be indulged in misconduct or any criminal activities, then the appointing authority may terminate the services after giving an opportunity of hearing. He further stated that after passing of interim order by this Court, the petitioner gave her joining and thereafter proceeded for maternity leave w.e.f. 3.12.2019 to 2.6.2020. She delivered a baby boy on 16.12.2019 and thereafter she submitted her joining on 3.6.2020 in Gram Panchayat, Bagwara, but she was not permitted to join despite interim order in her favour. In support of his contention, he has placed reliance over the judgments of this Court in W.P. No.3901/2017 (Gopal Singh Rajput V/s. State of M.P.) decided on 4.4.2018; 2018(2) MPLJ 689 : Vinod V/s. State of M.P.; and W.P. No.29616/2018 (Manish Dubey V/s. State of M.P.) decided on 8.1.2019.

On the other hand, Shri Manu Maheshwari, learned Panel Advocate appearing for respondents No.1 to 3/State, argued that the petitioner was served with the show-cause notice dated 6.8.2016 regarding her unsatisfactory performance and when despite the aforesaid show-cause notice she did not improve her performance, the Chief Executive Officer of Janpad Panchayat had rightly terminated her services. Despite the stay order granted by this Court, she never joined her duties and withdrew the salaries without work.

Shri O.P. Solanki, learned counsel appearing for respondent No.4, emphasised that the petitioner was attached to Janpad Panchayat but vide order dated 7.11.2017, she was relieved to join in Gram Panchayat Bagwara, but she never joined her duties at Gram Panchayat therefore her appointment order had already come to an end .Vide order dated 23.5.2018, the District Programme Officer, Janpad Panchayat has stayed the order dated 27.3.2018 in compliance of the interim order passed by this Court, despite that she did not work. He further submitted that as per the terms and conditions of the appointment order, if any Gram Rojgar Sahayak remains absent continuously for one month, his/her services are treated to be terminated.

I have heard the learned counsel for the parties at length and perused the material available on record.

This Court has entertained the present writ petition only on two grounds viz. (i) jurisdiction/authority of Chief Executive Officer, Janpad Panchayat to pass the impugned order of termination; and (ii) violation of principles of natural justice, otherwise, the petitioner is having alternative and efficacious remedy to challenge on merit before the appellate authority.

So far as the issue of jurisdiction of Chief Executive Officer, Janpad Panchayat is concerned, the petitioner is not pressing the same. The only issue that requires consideration by this Court is, whether before terminating the services of the petitioner, the petitioner was entitled to the opportunity of hearing. Vide order dated 27.3.2018, the Chief Executive Officer, Janpad Panchayat has terminated the services of the petitioner alleging that she is unauthorisedly absent and not performing the work of Gram Panchayat. He has also highlighted the nature of work which she did not perform in the Gram Panchayat.

Admittedly, before issuing the aforesaid impugned order, no opportunity of hearing or show-cause notice was ever given to the petitioner. Respondents No.1 to 3 have annexed show-cause notice dated 6.8.2016, but that was issued only in respect of feeding of data on-line in "Samagra Portal" and directed to complete the entry-work within 3 days, failing which, proceedings for termination would be proposed. The petitioner was not called upon to give a reply to the show cause notice According to the petitioner, vide order dated 23.5.2017, she was attached to Janpad Panchayat, therefore, she was not supposed to work in Gram Panchayat, hence the allegation that she was not performing the work in Gram Panchayat is prima facie baseless.

So far as the order dated 7.11.2017 by which she was relieved from Janpad Panchayat to join in Gram Panchayat is concerned, according to the petitioner, said order was never communicated to her and the State Government in their return ought to have disclosed about said order. Only the respondent no.4-Surpanch has produced a copy of the said order, which appears to be a fabricated one.

The petitioner was appointed under circular dated 2.6.2012 which also governs the service condition of the Gram Rojgar Sahayak . Clause 16 of the said circular specifically deals with the termination of contract appointment of Gram Rojgar Sahayak. As per sub-clause 7, the Chief Executive Officer of Janpad Panchayat, in case of proven misconduct, can terminate the services of Gram Rojgar Sahayak. Clause 18 deals with other service conditions of Gram Panchayat and as per Sub-clause 15 if misconduct and involvement in criminal activities Gram Rojgar Sahayak has been proved he can be terminated from service, but after giving an opportunity of hearing to the incumbent.

This Court, vide order dated 02.08.2017 passed in the case of Ramcharan Vs. State of M.P. & Others and other writ petitions has allowed several writ petitions by setting aside the order of termination for want of opportunity of hearing to defend. A relevant portion of the order is reproduced below:

"12. On perusal of Clause 16 of Madhya Pradesh Rajya Rojgar Guarantee Parishad, it is apparent that in case of irregularities, dereliction in discharge of the duties and culpable negligence on proving their services may be terminated. However, the core question is how those allegations can be proved. As the petitioners are contract employees, therefore, for any allegation, an opportunity of hearing may be given to them. This opportunity would be at the stage when the fact finding inquiry is being prepared by the officers on imputation of the allegations against them or at the stage of show cause. If a person has been given an opportunity of hearing while preparing the fact finding inquiry and thereafter their services may be terminated giving a show cause notice to him.

In the present cases, the respondents have received a fact finding inquiry report against the petitioners without giving an opportunity to defend on the allegation at the time of preparation of the inquiry report and now by issuing a show cause notice, the order of termination has been passed. The aforesaid recourse cannot be recognized in view of the judgment rendered by this Court in the case of Rahul Tripathi (supra) and also in violation of principle of natural justice.

Insofar as the judgment of Rajendra Prasad Bakoriya (supra) is concerned; it is a case wherein the order of termination is passed invoking condition No.6 of the appointment order. However, in the said context, this Court has dealt with the issue of contract employment referring the judgment of S.N.Goyal (supra). It is to be noted here that it is a case wherein the imputation of allegation of irregularities or committing misconduct has been alleged to which inquiry ought to be conducted. It is explained that the said inquiry may not be akin to the inquiry contemplated for the regular employees as specified under the Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966 but the principle of natural justice ought to be observed to the misconduct, which is alleged against them, affording an opportunity at the time of preparing the foundation for their termination. It is a case wherein to prepare the foundation of termination, the opportunity of hearing has not been given to the petitioners, therefore, relying upon the judgment rendered in the case of Rahul Tripathi (supra), these appear to be the fit cases wherein the order of termination may be quashed.

At this stage, the issue regarding completion of the contract period by the petitioners during the tenure of the stay order has been pressed upon by learned counsel for the respondents. In this regard, learned counsel for the petitioners has referred a Circular dated 6.7.2013 issued by the Government of Madhya Pradesh, Ministry of Panchayat & Gramin Vikas Vibhag, Bhopal and contended that now all the Gram Rojgar Sahayaks have been declared as Assistant Secretaries.

In this regard, it is suffice to observe here that the officers of the State Governments are at liberty to take recourse of law as permissible to them considering the Circular of the department or if they do not want to continue, it is with them to take a decision. This Court is having nothing to say on the said issue because the said issue is not res integra in the relief as prayed for in these petitions.

Accordingly, all these petitions succeed and are hereby allowed and the order of termination passed against the petitioners stand quashed. Except the petitioner of Writ Petition No.7684/2017, the other persons are continuing on the basis of the stay order. However, they be continued subject to decision by the authorities and the petitioner of Writ Petition No.7684/2017 be also reinstated if he is not in service. However, it is open to the respondents to take recourse of law in view of the foregoing observations and as per the procedure prescribed under the Scheme prepared by the Madhya Pradesh Rajya Rojgar Guarantee Parishad."

In Writ Petition No.2439/2015, this Court vide order dated 23.04.2015 has dismissed the writ petition filed by the Sarpanch of Gram Panchayat against the order of appellate authority who has set aside the order of termination of Gram Rojgar Sahayak. Relevant portion of the order is reproduced below:

"That apart, the appellate authority has even otherwise found that the order dated 10/2/2014 suffered from vice of jurisdiction and authority of Gram Panchayat as the same was found to be contrary to clause 15 and 16 of the guidelines issued in relation to appointment of Gram Rojgar Sahayak by M.P. Rajya Rojgar Guarantee Parishad. Upon perusal of clause 15 of the guidelines dealing with the administration and control, it appears that sub-clause (2) of the guidelines empowers the Collector to terminate the employment of Gram Rojgar Sahayak. Clause 15 of the guidelines reads as under:-

"15 अनुशासन एवं नियंत्रण-

ग्राम  रोजगार  सहायक  ग्राम  पंचायत  के  प्रति  उत्तरदायी होगा व  संबंधित पंचायत के नियंत्रणाधीन रहेगा । ग्राम रोजगार सहायक पर  प्रशासनिक नियंत्रण कार्यक्रम अधिकारी जनपद पंचायत का होगा ।

कलेक्टर  को  पर्याप्त  कारणों  के  आधार  पर किसी  भी  समय  ग्राम  रोजगार सहायक की सेवा समाप्ति के अधिकार होंगे ।''

At the same time, it is also relevant to quote clause 16 of the  guidelines, which reads as under:-

"16. संविदा सेवा समाप्ति- ग्राम रोजगार सहायक की संविदा सेवा अवधि पूर्ण होने के पूर्व निम्न विशेष स्थितियों में ग्राम पंचायत द्वारा समाप्त की जा सकेंगी -

सेवा अवधि के दौरान व्यक्तिगत एवं नामजद आपराधिक प्रकरण के संबंध में प्रथम सूचना रिपोर्ट (FIR)/Charge )होने पर अथवा 48 घण्टे से अधिक निरूद्ध रहने पर ।

अधिकृत प्रशिक्षण में अनुपस्थित होने अथवा प्रशिक्षण को पर्याप्त कारण बगैर मध्य अवधि में छोडने पर अथवा प्रशिक्षण में अन्य गंभीर लापरवाही करने पर ।

वगैर सूचना के एक माह से अधिक मुख्यालय में अनुपस्थित होने पर ।

स्वयं का त्यागपत्र देने पर ।

संबंधित के पागल/दिवालिया घोषित होने पर ।

अनियमित व त्रुटिपूर्ण नियुक्ति प्रमाणित होने पर ।

मुख्य कार्यपालन अधिकारी जिला पंचायत द्वारा पारित आदेश के अनुक्रम में अनियमिता एवं कर्त्तव्य निर्वहन में घोर लापरवाही प्रमाणित होने पर ।

ग्राम पंचायत का अस्तित्व समाप्त होने पर ।''

Upon perusal of clause 16, it is evident that the Gram Panchayat in the aforesaid circumstances may discontinue the employment of Gram Rojgar Sahayak before expiry of the period. Clause 17 of the guidelines provides for appeal before the District Programme Coordinator, i.e. the Collector. Admittedly, respondent no.4's services have not been terminated by the Collector. Therefore, the termination of employment of respondent no.4 by Gram Panchayat has rightly been found to be illegal for want of authority and jurisdiction. Next question is 'as to whether the order dated 10/2/2014 could be justified under clause 16 of the guidelines, if it is treated to be an order of discontinuance before expiry of tenure of respondent no.4'.

On careful perusal of the justification given in the impugned order, in the opinion of this Court, the appellate authority was justified having found that none of the clauses of clause 16 could be said to have been attracted for invoking the powers thereunder in the matter of discontinuance of tenure of respondent no.4. Moreover, respondent no.4 could not have been inducted or subjected to punitive action in the matter of termination /discontinuance of service as Gram Rojgar Sahayak without issuing any show-cause notice and opportunity of hearing, as no person can be condemned unheard; a basic tenet of principles of natural justice and fair play.

Apart from the fact that respondent no.4 was appointed as Gram Rojgar Sahayak by order dated 26/1/2013, vide order of Collector dated 14/9/2013 he was appointed as Assistant Secretary and duly notified under Section 69 (1) of the Adhiniyam of 1993 and, hence, while exercising the appellate jurisdiction, in the opinion of this Court, the appellate court was fully competent, as the Collector was the sole authority for termination of employment of the petitioner.

In view of the aforesaid facts and circumstances, in the opinion of this Court, the appellate court was justified having set aside the order dated 10/2/2014. Further direction given by the appellate authority for assessment of work and performance of respondent no.4 in a meeting of Panchas for the purpose of further continuance as Rojgar Sahayak, in the opinion of this Court, is absolutely fair & fully justified and no exception can be taken thereupon, as only upon assessment of work of respondent no.4 his continuance as Rojgar Sahayak can be decided. Accordingly, the writ petition sans merits and is hereby dismissed."

Because of the above, the impugned order passed in the present case is unsustainable in law, hence set aside. The respondents No.1 to 3 are at liberty to conduct the inquiry into the allegations made against the petitioner without. Needless to say that this court has set aside the impugned order only on the technical ground without expressing any opinion on the merit of the case. If the competent authority fails to initiate any inquiry within one month and complete it in the next three months from today then the petitioner would be entitled to give joining and work in the Gram Panchayat Bagwara.

Petition is allowed with the above liberty.

No order as to cost.