S.B. Civil Writ Petition No.7654/2011 Kailash Chandra Sharma Vs. State of Rajasthan & Ors. Order dated 01/05/2014 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER
S.B. Civil Writ Petition No.7654/2011 Kailash Chandra Sharma Vs. State of Rajasthan & Ors. Date of Order ::::
01. t May, 2014 PRESENT HON'BLE Dr. JUSTICE VINEET KOTHARI Appearance: Mr. M.S. Godara, for the petitioner. Mr. Manish Patel, Addl. Govt. Counsel. -- BY THE COURT:
1. The petitioner was appointed as Junior Technical Assistant on contractual basis on 21.12.2009. By the impugned communication (Annex.6) dated 29.07.2011, the respondent, District Collector-cum-Project Coordinator of NREGA Scheme, wrote to the Officer-in-Charge and Establishment Committee of the said Scheme, to initiate action for recovery against the present petitioner and one other Officer, namely, Biharilal Sharma, (Gram Sevak) on the basis of audit objections, in which certain irregularities were found in the implementation of the Scheme under the NREGA Scheme, where these two officers were working. S.B. Civil Writ Petition No.7654/2011 Kailash Chandra Sharma Vs. State of Rajasthan & Ors. Order dated 01/05/2014 2/5 2. Agaisnt the said communication dated 29.07.2011, the present writ petition was filed by the petitioner in this Court on 11.08.2011, just a few days after receipt of the said letter describing the said communication as his termination order, whereas in fact no such termination of contractual services had been effected by the impugned communication and the only appropriate action was directed to be initiated against these two erring officials including the present petitioner.
3. While issuing notices to the respondents, a coordinate bench of this Court was persuaded to grant the interim order dated 19.08.2011, stayed the effect and operation of the impugned communication/order dated 29.07.2011. The interim order dated 19.08.2011 is quoted herein below: “Issue notice as to why this petition for writ petition be not admitted. Issue notice of stay application also. In the meanwhile and until further orders, the respondents shall not discontinue the petitioner from service in pursuant to the instructions granted to the Officer-In-charge, Establishment Section, Mahatma Gandhi Narega, Bhilwara under the communication dated 29.7.2011 by the District Programme Coordinator-cum-collector, Bhilwara.”. 4. Though reply to the writ petition has been filed by the respondent- Panchayati Raj Department, however, unfortunately no S.B. Civil Writ Petition No.7654/2011 Kailash Chandra Sharma Vs. State of Rajasthan & Ors. Order dated 01/05/2014 3/5 application under Article 226 (3) of the Constitution of Indition was filed by them seeking vacation of the said exparte stay order for a long period of 3 years. The respondents in their reply, particularly in para 9 thereof, have clearly stated that upon the enquiry being held, the competent authority shall be entitled to take action in the matter. The relevant para 9 of the reply is quoted herein below for ready reference: -
“9. That the averments made in para No.9 of the writ petition are denied in the manner they have been stated by the petitioner. In the respectful submission of the answering respondents, the order dt.24.6.2011 is a speaking and reasoned order, wherein, detailed technical findings have been mentioned and the petitioner as well as other delinquents' liabilities towards irregularities and illegalities in the works carried out under MNREGA works have been pointed out. At this juncture, it would be pertinent to point out that the agreement entered into and executed between the parties contains a provision that any misconduct on the part of the first party, if proven, after an enquiry by second party, shall entitle second party to terminate contract services of first party and in the instant case, the order impugned by the petitioner has been passed after conducting a detailed and thorough technical enquiry in the matter. The agreement (Annex.1) also contains a provision that in case of any loss or misappropriation of government funds by the first party, S.B. Civil Writ Petition No.7654/2011 Kailash Chandra Sharma Vs. State of Rajasthan & Ors. Order dated 01/05/2014 4/5 contract shall be terminated by the second party. Hence, no vice or infirmity can be found in the order impugned by the petitioner. In the light of the submissions made hereinabove in detail, as also, reasons recorded in detail in the order dt.29.7.2011 (Annex.6), it is respectfully submitted that the act and action of the answering respondents, as well as the order dt. 2.7.2011 passed by them are perfectly legal, valid, justified, well within its jurisdiction, in accordance with the provisions of the law, governing the field and do not suffer from any vice or infirmity and the same deserves to be sustained and maintained by this Hon'ble Court and with great respect, it is also most respectfully submitted that in view of the submissions made hereinabove in detail, neither the petitioner is entitled to get any relief from this Hon'ble Court nor his writ petition is maintainable and sustainable in the eyes of law and the same deserves to be dismissed by this Hon'ble Court with costs.”. 5. Having heard the learned counsel for the parties, this Court is of the opinion that the writ petition as framed and filed in this Court, was/is absolutely premature and not maintainable. The impugned communication (Annex.6) dated 27.09.2011 is not even a termination order of contractual employment of the petitioner, however, further action against the petitioner appears to have not been taken by the respondents on account of interim order granted S.B. Civil Writ Petition No.7654/2011 Kailash Chandra Sharma Vs. State of Rajasthan & Ors. Order dated 01/05/2014 5/5 by this Court, staying the operation of the impugned communication itself, for which no efforts were made by the respondent Department to move appropriate application in this Court to bring to the notice of the Court the correct facts of the case.
6. In view of above, the present writ petition filed by the petitioner is considered to be premature and it cannot be said that no action can be taken against the petitioner on the basis of audit objection pointing out certain irregularities in their working, and the same is, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties forthwith. (Dr. VINEET KOTHARI), J.
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