1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2465 of 2014 ------- Nabal Kishore Yadav @ Nawal Kishore Yadav, S/o Sri Bhado Prasad Yaadav, Resident of village: Upper Bagdabra, P.O: Dumaria, P.S.: Sonaraithari, Distt: Deoghar, Jharkhand, presently residing at Visweshwaria Engineering Colony, Salonatanr, P.O + P.S & District: Deoghar ... Petitioner Versus 1.The State of Jharkhand through the Principal Secretary, Rural Development Department, Project Building, P.O: Dhurwa, P.S.: Jagannathpur, District: Ranchi, State: Jharkhand. 2.The Commissioner, M.N.R.E.G.A, Rural Development Department, Project Building, P.O: Dhurwa, P.S.: Jagarnathpur, District: Ranchi, State: Jharkhand. 3.The Deputy Commissioner, P.O + P.S & District: Deoghar. 4.The Deputy Development Commissioner, Deoghar, P.O + P.S. & District: Deoghar. 5.The Block Development Officer, Sonaraithari, P.O + P.S. & District: Deoghar. ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. Rupesh Singh, Advocate For the Respondents : Mr. Rajesh Kumar, G.P. V ------ C.A.V. On 09.04.03.2015 Pronounced on ____/05/2015 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing the impugned order of termination issued by respondent no. 3-Deputy Commissioner, Deoghar vide Memo No. 2334 dated 21.11.2012 whereby the petitioner has been terminated from services from the post of Rozgar Sewak in Kusumthar Panchayat under Sonaraithari Block, Deoghar and for direction upon respondent no. 3 to reinstate the petitioner in his former post with effect from the date of termination with all consequential benefits including continuity in service.
2. Sans details, the facts in a nutshell are that, in pursuance to advertisement in the month of December, 2007 for the post of Gram Rojgar Sewak in the district of Deoghar for effective implementation of Mahatma Gandhi National Rural Employment Guarantee Act (in 2 short 'MNREGA'), the petitioner applied for the said post and was declared successful. Accordingly, the petitioner joined on 10.03.2008, whereafter he was sent for training and after completion of training, the petitioner was posted at Kusumthar Panchayat, as evident from Annexure 3. The petitioner was allotted duty to monitor the natural calamity of drought in the district of Deoghar in the year 2010. Consequent upon creation of new Block, namely, Sonaraithari, the Block Development Officer, Sonaraithari, issued office order posting the petitioner vide Memo No. 19 dated 19.01.2011, as per Annexure 5 to the writ petition. It has further been averred in the writ application that the village headman (Mukhia) reported the respondents- authorities regarding unauthorized absence of the petitioner and one Sri Ashok Kumar Yadav (Panchayat Sewak) stating that on the fateful night i.e. on 26.09.2012 their absence led to theft of valuable gadgets in the Panchayat office and to that effect an F.I.R was lodged by the village headman.
3. On the basis of aforesaid intimation, the respondent no. 5 vide Memo No. 521 dated 29.09.2012 issued show cause notice to the petitioner as well as to the concerned Panchayat Sewak as to whether they have taken permission to leave headquarter from the Controlling Authority. In pursuance to the said show cause, the petitioner submitted reply to the show cause vide letter dated 01.10.2012 (Annexure 9). Subsequently, pursuant to letter dated 04.02.2013 of respondent no. 3, the B.D.O, Sonaraithari directed the concerned employee including the petitioner to appear before him on 18.02.2013 for enquiry of the incident of theft. But, it has been submitted that before the so-called enquiry, it has already been decided by the Deputy Commissioner, Deoghar to terminate the services of the petitioner vide Memo No. 2334 dated 21.11.2012 3 (Annexure 10/1). It has further been averred that under the R.T.I Act, the petitioner obtained information vide Memo No. 377 dated 31.01.2014 (Annexure
11) from the office of Superintendent of Police, Deoghar that no case of theft has been lodged concerning the Panchayat Bhawan, Kusumthar from 01.09.2012 till the date of furnishing of information. It has further been averred in the writ application that stolen item was actually under the custody of village headman, as evident from the record of handing over and taking over charge dated 10.09.2012 (Annexure 12 and 12/1). It has further been submitted that even other employees of MNREGA and members of Panchayat Committee, Kusumthar Panchayat have informed the Deputy Commissioner, Deoghar that they have never seen any L.C.D or Dish (alleged stolen articles) in the concerned Panchayat Bhawan. Being aggrieved by the order of termination issued vide Memo No. 2334 dated 21.11.2012, the petitioner represented before the Deputy Commissioner, Deoghar on 06.11.2012 and 11.02.2014 (Annexure 14 and 14/1). Since, the representations submitted by the petitioner have fallen on deaf ears, the petitioner has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for mitigating his grievances.
4. Counter affidavit has been filed on behalf of respondents controverting the averments made in the writ application. In the counter affidavit, it has been stated that Mukhia of the said village informed about the theft in the Panchayat Bhawan vide letter no. 86 dated 27.09.2012 (Annexure A). Moreover, Mukhia is not competent to grant leave to the petitioner, who left the office without seeking permission of B.D.O., Sonaraithari. The B.D.O., Sonaraithari issued show cause notice to the petitioner as well as concerned Panchayat Sewak as to whether they had taken permission for leaving Panchayat 4 Bhawan vide memo no. 521 dated 29.09.2012 (Annexure B). It has further been averred that the B.D.O also directed the concerned employee including the petitioner to appear before him on 12.02.2013 for enquiry of the incident of the theft vide letter no. 99 dated 09.02.2013 (Annexure C). It has further been averred that the allegation that the respondent no. 3 has made up his mind for termination of the petitioner is false and baseless. It has further been submitted in the counter affidavit that the respondent no. 3 considered the allegation levelled against the petitioner and found that the petitioner was found absent in duty and his performance was against the spirit of M.N.R.E.G.A, therefore, he was dismissed from service with immediate effect.
5. Heard Mr. Rupesh Singh learned counsel appearing for the petitioner and Mr. Rajesh Kumar, learned G.P. V for the respondents.
6. Learned counsel for the petitioner has vociferously argued out his case and has tried to impress upon this Court that the impugned order issued vide Memo No. 2334 dated 21.11.2012 is punitive in nature and not a termination simplicitor. Learned counsel for the petitioner has strenuously urged before this Court that the impugned order of termination imposed upon the petitioner is not only baseless but also harsh since the petitioner has been terminated on the ground of unauthorized absence. Learned counsel for the petitioner has drawn attention of the Court at Annexure I.A./2 to the I.A. No. 904 of 2015, wherein vide Memo No. 702 dated 09.04.2012, one Prasanajeet Vid, holding the similar post like that of petitioner, who too was terminated on the ground of unauthorized absence was reinstated by the respondents on the representation of that Rozgar Sewak. Learned counsel for the petitioner has submitted that the same benefit be extended to the petitioner. Learned counsel for the petitioner 5 submitted that furthermore, the grounds on which, the services of the petitioner has been terminated is found to be untrue since no F.I.R has been lodged regarding theft of the gadgets in the Panchayat Bhawan, as evident from the information sought under R.T.I. Act under Annexure 11 to the writ application. Therefore, the very ground on which the petitioner was prosecuted appears to be very brittle. It has been submitted that when the foundation is weak, super- structure falls as also when the charges are vague and baseless, culmination of the proceeding in termination of services is also not legally sustainable.
7. To buttress his submissions, learned counsel has cited the decision rendered in the case of State of Assam & Ors Vs. Kanak Chandra Dutta as reported in AIR1967SC884on the issue of Civil Post under Article 311 of the Constitution of India. On the issue of disproportionate/excessive punishment, learned counsel cited the decision rendered in the case of Inderjit Vs. Punjab & Haryana High Court & Anr. as reported in (2010) 12 SCC530 Learned counsel also cited the decision rendered in the case of Indu Bhushan Dwivedi vs. State of Jharkhand & Anr. as reported in (2010) 11 SCC278on the issue of principles of natural justice.
8. On perusal of the above-cited judgments/ratio decided by the Hon'ble Apex Court, there cannot be any quarrel over the proposition/ratio enunciated by the Hon'ble Apex Court on the question of Civil post, quantum of punishment and violation of principles of natural justice.
9. On the other hand, learned counsel for the respondents has vehemently defended the actions of the respondents by canvassing his argument that the petitioner being the contractual appointee under a Scheme is not a Government appointment and not the holder 6 of Civil post, therefore, he is not be protected under Article 311 (2) of the Constitution of India. Secondly, so far as compliance of principles of natural justice is concerned, the respondents-authorities had issued show cause notice, to which, the petitioner has responded, thereafter impugned order of termination has been passed. So, there is absolutely no procedural irregularity so far as the actions of respondents in terminating the services of the petitioner is concerned.
10. After perusing of record and after having heard learned counsels for the parties at length, the impugned order of termination issued vide Memo No. 2334 dated 21.11.2012 is not legally sustainable due to following facts, reasons and judicial pronouncements: (I).In the case at hand, the respondents-authorities has already taken a decision for termination of services and the subsequent enquiry was only a camouflage/ subterfuge/an eye-wash, therefore, the entire proceeding appears to have been done in a perfunctory manner visiting the petitioner with major punishment like dismissal from services. (ii).Same sort of latitude/leniency ought to have been extended to the petitioner as similarly placed employee on the similar allegations after termination has been reinstated vide Memo No. 702 dated 09.04.2012 ( Annexure I.A./2 to the I.A. No. 904 of 2015) but the petitioner has not been reinstated in services, which is violative of Article 14 of the Constitution of India. (iii).From the designation of the petitioner and work entrusted to him, it is quite evident that the work of the petitioner is of supervisory nature and the petitioner was not entrusted with the work of watch and ward of the Panchayat Bhawan and further 7 from the handing over and taking over charge of the articles in the Panchayat Office, as per Annexure 12 and 12/1 of the writ petition, it appears that the alleged stolen articles were in the custody of the Mukhia of the Gram Panchayat. (iv). Moreover, the respondent no. 5 has given commendable report regarding integrity of the petitioner even after so-called allegation. Therefore, the petitioner deserves to be shown leniency so far as the quantum of punishment is concerned. (v).In the instant case, it appears that the impugned order of termination is grossly disproportionate to the alleged charge and, therefore, the petitioner has made out a case on the ground of doctrine of proportionality so far as quantum of punishment is concerned. Although, it is the exclusive domain of the disciplinary authority to award punishment as per the charges and the delinquency but looking at the factual position in the case at hand, it appears gross prejudice has been caused in dispensing with the services of the petitioner on some vague and baseless charges, which was ultimately found to be incorrect.
9. In view of the above-narrated facts, reasons and judicial pronouncements, the impugned order of termination issued vide Memo No. 2334 dated 21.11.2012 under Annexure 10/1 is quashed and respondents are directed to reinstate the petitioner in service with continuity in service within a period of four weeks from the date of receipt/production of copy of this order.
10. With the aforesaid observations and directions, this writ application is allowed. (Pramath Patnaik, J.) Alankar/-