Allowed

Mohammad Shoheb Khan v. State of Chhattisgarh and Ors.

Chhattisgarh HC21 Aug 2018WPS/5178/2009

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh quashed the termination order of a helper appointed at a government-aided institute. The court held that the appointment conditions and natural justice principles required an inquiry and notice, which were denied, leading to reinstatement without back wages.

What did the court decide?

The impugned termination order dated 21.07.2009 is set aside and the petitioner is entitled to reinstatement without back wages.

Mohammad Shoheb Khan Vs State of… — Pension and Retirement Benefits | Chhattisgarh HC (2018)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR WRIT PETITION (S) NO. 5178 OF 2009

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Mohammad Shoheb Khan S/o Mohammad Mustafa Khan, aged about 28 years, Occupation Service, R/o Madhubanpara, Raigarh, Distt. Raigarh (CG).

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…Petitioner(s)

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Versus

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1. State Of Chhattisgarh through the Secretary, Higher Education and Technical Education Chhattisgarh, Raipur (CG).

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2. Additional Director, Technical Education Chhattisgarh, Raipur (CG).

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3. Office Of Principal Kirodimal Institute Of Technology Raigarh, Through Principal Raigarh, Distt. Raigarh (CG).

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4. Registrar, Kirodimal Institute Of Technology Raigarh, Distt. Raigarh (CG).

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… Respondent(s)

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For Petitioner	: Smt. Indira Tripathi, Advocate.
For Respondent-State	: Shri Arvind Dubey, Panel Lawyer.
For Respondents No.3&4	: Shri B.D. Guru, Advocate.

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Hon'ble Shri Justice P. Sam Koshy

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Order on Board

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21.08.2018

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1. The challenge in this petition is to the order dated 21.07.2009 (Annexure P/1) passed by the respondent No.3 whereby the services of the petitioner has been terminated.

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2. Brief facts of the case is that, the respondent No.3 is the Principal of Kirodimal Institute of Technology, Raigarh which is a government aided private institution and where so far as service conditions of the employees in the said institute is concerned, they are governed by the rules and regularizations framed by the State Govt. The petitioner herein was appointed as a Helper on the establishment belonging to respondent No.3 vide order dated 09.03.2006 (Annexure P/2).

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3. At this juncture, it would be relevant to refer Clause-1 and 6 of the order of appointment. Clause-1 says that the services of the petitioner could be terminated at the behest of the either side after giving one month's advance notice or one month's salary in lieu of notice. Likewise, Clause-6 envisaged that so far as service conditions of the petitioner is concerned, it would be the Civil Services (Conduct) Rules, 1965 (In short, the Conduct Rules, 1965) which is applicable upon the employees of the State Govt. which would be applicable upon the petitioner as well. That, the respondent No.3 vide the impugned order dated 21.07.2009, Annexure P/1 abruptly terminated the services of the petitioner. It is this order which is under challenge in the present writ petition.

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4. According to the petitioner, the action on the part of the respondent No.3 is per se illegal and bad in law for more than one reason, foremost being the fact that it is an order passed in an utter violation of the principles of the natural justice. The order of termination also is in contravention of the provisions of the Article 311 of the Constitution of India wherein it has been clearly envisaged that no person can be dismissed from service except after an enquiry in which he has been informed about the charges against him and is also given a reasonable opportunity of being heard. As per the petitioner, it is a case where there was no show cause notice, nor explanation or the charges of misconduct levelled against the petitioner and that the impugned order has been passed to the utter surprise of the petitioner without there being any reasons

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whatsoever. Thus, prayed for the setting aside/quashment of the impugned order.

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5. Learned counsel appearing for the respondents No.3 & 4 however opposing the petition submits that it is a case where the petitioner was an employee of a private institution and therefore the provisions of the Conduct Rules, 1965 may not be applicable. It was also the contentions that the petitioner was not a regular employee of the institute and as such the requirement of Departmental Enquiry may not be necessary in such a case. Thus, for all the aforesaid reasons, the counsel for the respondents No.3&4 prayed for rejection of the writ petition.

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6. Having heard the contentions put forth on either side and on perusal of records, we need to first see the status of the petitioner. Annexure P/2, dated 09.03.2006 is an order of appointment issued in favour of the petitioner. For ready reference the order of appointment and two relevant conditions i.e. Clause-1 and Clause-6 of the appointment order is reproduced herein as under :

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**1- fu;qfDr ds nkSjku nksuksa i{kks a es ls fdlh ,d i{k }kjk ,d ekg dh iwoZ lwpuk ;k ,d ekg dk osru nsdj fu;qfDRk lekIr dh tk ldsxhA

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xxxxx xxxx xxxx

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6- deZpkjh ij N0x0 jkT; esa ykxw flfoy lsok vkpj.k fu;e 1965 ,oa laLFkk ds fu/kkZfjr lsok 'krsZa ykxw gksaxhA**

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7. A plain reading of the contents of the appointment order itself would reveal that the petitioner was appointed after due selection process and was duly appointed. Thus, it cannot be said that the nature of

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appointment of the petitioner in any manner was not a regular appointment made by the institute. Moreover, the very fact that the appointment order envisages a clause of service conditions of the petitioner being governed under the Conduct Rules, 1965, is sufficient indication of the petitioner's appointment being a regular appointment and not a temporary, ad-hoc or stop gap arrangement. So far as the legal position as it stands that there can be no dispute that even a temporary government servant or a probationers are entitled of the protection under Article 311 (2) of the Constitution of India similar to that of a government employee.

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8. In the instant case if we look into the order of appointment it clearly stipulates that the services of the petitioner could be terminated at the behest of either side giving one month's notice or one month's salary in lieu of notice. In the absence of following the aforesaid condition, the order of termination would apparently be bad in law on its face itself. Likewise, perusal of impugned order (Annexure P/1) and also the reply which the respondents have filed do not disclose the reasons as to why the services of the petitioner was terminated.

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9. In DK Yadav Vs. JMA Industries, 1993(3) SCC 259, the Supreme Court has observed that Article 21 of the Constitution ensues right to live which includes a right to livelihood. According to the Supreme Court, an order of termination of services of an employee has a civil consequence jeopardizing not only his or her livelihood, but also the career, livelihood of the dependents. Therefore, before taking an action putting an end to the tenure of an employee, fair play requires

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for a reasonable opportunity of being heard or put forward his case is given.

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10. It has been repeatedly held time and again by the Supreme Court in a catena of decisions that the principles of natural justice applies to all terminations whether statutory, governmental, temporary or otherwise.

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11. For the aforesaid reasons, considering the fact that the respondents have not been able to show any cogent reasons or grounds which justifies the termination of the petitioner and the fact that the termination has been without following the conditions stipulated in the order of appointment and at the same time it was without conducting any inquiry or a show cause notice being given to the petitioner, the impugned order of termination dated 21.07.2009 (Annexure P/1) is not sustainable. The same deserves to be and is hereby set aside.

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12. However, since the petitioner right from 2009 till now has not discharged any duties with the respondents, applying the ratio of 'No Work No Wage' it is held that the petitioner would not be entitled for any back wages for the said period. However, the said period, for all other practical purposes, would be treated as period spent on duty.

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13. The writ petition accordingly stands allowed. As a consequence, the petitioner would be entitled for reinstatement without back wages.

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Sd/-

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(P. Sam Koshy Judge

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inder

Mohammad Shoheb Khan v. State of Chhattisgarh and Ors.

Case brief

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Mohammad Shoheb Khan v. State of Chhattisgarh and Ors.

Case brief

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