Lokendra Singh Kushwah vs State Of Madhya Pradesh Thr And Others

Anand Singh Bahrawat, J

This petition, under Article 226 of the Constitution of India, has been filed seeking following relief(s):

"(i) Hon'ble Court may kindly be pleased to quash impugned orders dt.07.08.2018 (Ann.P/2) passed by Respondent No.3.

(ii) That, this Hon'ble Court may kindly be pleased to direct Respondent authorities to reinstate the petitioner on the post of Gram Rozgar Sahayak Palaycha, Janpad Panchayat Bhitarvar, District Gwalior with all consequential benefits.

(iii) Any other relief which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner along with cost of the petition."

Learned counsel for petitioner submits that petitioner was appointed on the post of Gram Rojgar Sahayak, Gram Panchayat Palaycha, Janpad Panchayat Bhitarwar, District Gwalior vide order dated 05.11.2012. Thereafter, vide order dated 07.08.2018, the services of petitioner were terminated on the ground that petitioner had allegedly committed an offence under Section 7 of the Prevention of Corruption Act. It is further submitted that the impugned order has been passed by the respondents without giving any opportunity of hearing to petitioner and even no show-cause notice was issued. Thus, the principles of natural justice have not been complied with by the respondents. It is further submitted that merely on the basis of registration of an FIR, the services of petitioner could not have been terminated. It is further submitted that as per judgment dated 13.08.2019 passed by the learned Special Judge and First Additional Sessions Judge, Gwalior in Special Case No. 9/18, the petitioner has already been acquitted It is further submitted that as per Clause 15 of the appointment order, if a candidate is found involved in a criminal case, the services of such candidate can be terminated only after giving proper opportunity of hearing. However, without complying with Clause 15 of appointment order, the services of petitioner have been terminated by the respondents. It is further submitted that the impugned order is stigmatic in nature and such a stigmatic order cannot be passed without conducting a regular departmental enquiry. It is further submitted that mere registration of an FIR cannot be a ground for termination of service rather the services could only have been terminated if the competent Court had convicted the petitioner in the criminal case. It is further submitted that the petitioner has already been acquitted in the criminal case arising out of said FIR. It is further submitted that similarly situated persons, who were appointed along with the petitioner are still continuing in service and the services of petitioner alone have been terminated merely on the basis of registration of the FIR. It is submitted that since similarly situated persons are still working, the petitioner is also entitled to reinstatement, even though the contractual period of the petitioner has already expired.

Per contra, learned counsel for respondent/State as well as learned counsel for respondent No. 3 opposed the prayer made by learned counsel for petitioner. It is further submitted that as per the guidelines issued for appointment to the post of Gram Rojgar Sahayak, the services of petitioner could be terminated on the basis of registration of an FIR. It is further submitted that on 28.11.2015, an FIR was registered against petitioner in relation to an offence under the Prevention of Corruption Act, which entitled respondent No. 3 to terminate the services of the petitioner. Under Clause 16(1) of the guidelines (Annexure R/2), the services of petitioner could be terminated and in compliance thereof, the impugned order has been passed by the competent authority. It is further submitted that there was no requirement to provide an opportunity of hearing to petitioner since the FIR had already been registered against him. As per Clause 16(1) of the guidelines, the services of petitioner have rightly been terminated by respondents. It is further submitted that petitioner was appointed on a contractual basis and the contractual period had already expired in March, 2019. Therefore, the petitioner is not entitled to continue in service or seek reinstatement to the said post, as the contractual period has already come to an end. It is further submitted that there is a specific provision mentioned in Clause 11 and as per the said clause, the services of petitioner could only be extended. It is further submitted that the petitioner has an alternative remedy of preferring an appeal before the appellate authority. It is also submitted that petitioner has not challenged the validity of Clause 16(1) and without challenging the aforesaid clause, no relief can be granted to petitioner.

Heard learned counsel for the parties and perused the record.

Perusal of record reveals that petitioner was appointed on the post of Gram Rojgar Sahayak, Gram Panchayat Palaycha, Janpad Panchayat Bhitarwar, District Gwalior vide order dated 05.11.2012. Thereafter, vide order dated 07.08.2018, the services of petitioner were terminated on the ground that he had allegedly committed an offence under Section 7 of the Prevention of Corruption Act. The impugned order has been passed without giving any opportunity of hearing to petitioner and without issuing any show-cause notice. Therefore, the principles of natural justice have not been followed by the respondents. Merely on the basis of registration of an FIR, the services of petitioner could not have been terminated. Vide judgment dated 13.08.2019 passed by the learned Special Judge and First Additional Sessions Judge, Gwalior in Special Case No. 9/18, petitioner has already been acquitted. As per Clause 15 of the appointment order, if the involvment of candidate is found in a criminal case, his services can be terminated only after giving proper opportunity of hearing relevant of which is quoted below for ready reference and convenience:

However, without complying with Clause 15 of the appointment order, the services of petitioner have been terminated by the respondents. Impugned order is stigmatic in nature and such an order cannot be passed without conducting a regular departmental enquiry. Mere registration of an FIR cannot be a ground for termination of service; rather, the services could only have been terminated if the competent Court had convicted the petitioner in the criminal case. Since petitioner has already been acquitted in the criminal case arising out of the said FIR, the impugned action is illegal. Similarly situated persons, who were appointed along with petitioner, are still continuing in service and only petitioner has been terminated on the basis of registration of the FIR. Therefore, petitioner is also entitled to reinstatement, even though the contractual period has already expired.

As per the Madhya Pradesh Rajya Rojgar Guarantee Parishad, the contract employment can be terminated as per Clause 16, which is being reproduced as under:-

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.

The guidelines governing the services of the petitioner i.e. Gram Rojgar Sahayak provides for issuance of show cause notice and an opportunity of hearing prior to issuance of termination order. A detailed enquiry is to be conducted in the matter if certain allegations are levelled against the employee. Although the petitioner has been involved in a criminal case but the fact remains that he has been acquitted of all the charges levelled against him. It is an honourable acquittal given to the petitioner, therefore, it cannot be said that there was any involvement of the petitioner in the criminal case. Once the petitioner has already been acquitted in a criminal case, the authorities are duty bound to reconsider the case of the petitioner for reinstatement in service because the grounds on which the termination of the petitioner was done is no more in existence. The terms and conditions of the appointment order are not being followed by the authorities.

The constitutional Bench of Hon'ble the Supreme Court in the matter of Jagdish Mitter vs. Union of India reported in AIR 1964 SC 449, has considered the scope of applicability of Article 311(2) of the Constitution of India in a case of dismissal or removal of a temporary employee. In that case, the employee was working as a temporary Second Division Clerk in the General Post Office. His services were terminated on the ground that it was found undesirable to retain him in a Government service and hence, with one month's notice, he was discharged from services. The Hon'ble Supreme Court in that context has held that the protection of Article 311 of the Constitution can be invoked not only by permanent Government servants, but also by public servants who are employed as temporary servants, or probationers, and so, there can be no difficulty in holding that if a temporary public servant or a probationer is served with an order by which his services are terminated, and the order unambiguously indicates that the said termination is the result of punishment sought to be imposed on him, he can legitimately invoke the protection of Article 311 and challenge the validity of the said termination on the ground that the mandatory provisions of Article 311(2) have not been complied with. In other words, a temporary public servant or a probationer cannot be dismissed or removed from service without affording him protection guaranteed by Article 311(2). In para 22 of the said decision, it has also been held that no doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But when the order in question refers to the fact that the employee was found undesirable to be retained in government service, it expressly casts a stigma on the employee and in that sense, it must be held that such an order is of dismissal and not a mere order of discharge. It has been considered that if an employee is found to be undesirable to continue, the same attaches stigma against him. However, if it is said that it is unnecessary to continue an employee in that case no stigma attaches to him. Anyone who reads the order in a reasonable way, would naturally conclude that the employee was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. In that case, the Hon'ble Supreme Court has held that the order was of dismissal and not of discharge.

At this stage, the issue regarding completion of the contract period by the petitioner during the tenure of the stay order has been pressed upon by learned counsel for the respondents. In this regard, learned counsel for the petitioner 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.

As the impugned order amounts to a stigma the services of petitioner could not have been terminated without holding an enquiry as has been laid down by this Court in Rahul Tripathi vs. Rajeev Gandhi Shiksha Mission, Bhopal and others, 2001 (3) M.P.L.J., 616 and in Jitendra Vs. State of M.P. and others reported in 2008 (4) M.P.L.J. 670. Therein it has categorically been held that even the services of a contractual employee cannot be terminated without conducting regular enquiry if the order amounts to a stigma. It is apparent that order dated 7.08.2018 is stigmatic in nature, the same having been passed without conducting regular enquiry hence cannot be sustained. The appellate authority has also not adverted to this aspect of the matter at all.

Taking into consideration the submissions put forth by learned counsel for rival parties, coupled with the facts and circumstances of the case, this Court is of the considered opinion that the present petition deserves to be and is hereby allowed and disposed of in the following manner:

(i) impugned order dated 7.8.2018 is hereby quashed;

(ii) Since by interim order dated 10.09.2018 the effect and operation of the impugned order dated 7.8.2018 (Annexure P/2) had already been stayed, there is no need to reinstate the petitioner, however, petitioner shall be entitled to all consequential benefits which shall be extended by the respondent to him within a period of three months from the date of receipt of certified copy of this order.