Sarita Paikra Vs State Of Chhattisgarh And Ors.

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 882 of 2015

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Sarita Paikra W/o Nakam Chand Paikra Aged About 24 Years Peon, Tribal Girls Hostel Ramgarh, Block Sonhat, District Korea Chhattisgarh Now Terminated, R/o Village Pondi, Post Ranjoli, Tahsil And P.S. Sonhat, District Korea Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Tribal Welfare Department, Mantralaya, Mahanadi Bhawan, New Raipur , District Raipur Chhattisgarh

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Commissioner Tribal Welfare Department, Raipur, C.G.,

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Assistant Commissioner Tribal Welfare Department Korea, District Korea Chhattisgarh

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Collector Korea, District Korea Chhattisgarh,

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Block Education Officer Block Sonhat, District Korea Chhattisgarh

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Principal Government Higher Secondary School, Ramgarh, Block Sonhat, District Korea Chhattisgarh

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Superintendent Tribal Girls Hostel, Ramgarh, District, District Korea Chhattisgarh

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---- Respondent

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For Petitioner : Shri Sanjeev Sahu, Advocate. For Respondent/State : Shri Rajeev Bharat, GA.

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Hon'ble Shri Deepak Kumar Tiwari, J

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Order On Board

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19/01/2024 :

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This petition has been filed challenging the order of termination dated

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12.2.2015 (Annexure-P/1) whereby the services of the petitioner were

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terminated invoking the power under Rule 10 (viii) of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short ‘the Rules, 1966’).

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Facts of the case are that the petitioner was appointed on the post of Peon at Middle School, Kuwarpur, Block Bharatpur, District Korea by the Collector, Tribal Development on temporary basis, on probation for a period of 2 years, on certain terms and conditions vide appointment order (Annexure-P/2) dated 12^th September, 2014. Thereafter, vide order dated 2^nd December, 2014, the petitioner has been posted at Tribal Girls Hostel, Ramgarh, Tahsil Sonhat, District Korea, and she was relieved vide order dated 6^th December, 2014 from her previous place of posting by the Block Education Officer, Bharatpur, District Korea. The petitioner has given her joining on 9^th December, 2014 at the Tribal Girls Hostel, Tahsil Sonhat, District Korea.

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While the petitioner was on probation, an incident occurred at Tribal Girls Hostel in respect of one minor girl, who had conceived and thereafter her delivery was done at the hostel itself. An FIR bearing Crime No.13/2015 was registered at Police Station Sonhat, District Korea for offence under Section 376 of the IPC, Section 3/4, 9/10, 21 of the Protection of Children from Sexual Offences Act, 2012 against Smt. Kiran, Phool Sai, Parvatiya, Chain Sai, Sunita and others. A show cause notice was issued to the petitioner on 31^st January, 2015 (Annexure-P/7).

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Conduct of the petitioner falls under Rule 3 of the Chhattisgarh Civil

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Services (Conduct) Rules, 1965. The petitioner submitted her reply on 3.2.2015 stating that she joined the Institution on 9^th December, 2014. Thereafter she proceeded on Casual Leave from 10^th December to 13^th December, 2014. Again she proceeded on Winter Holidays from 23^rd December to 28^th December, 2014. She has further explained that she has worked only for 10 days in the said Institution and she was not aware about the pregnancy of the said girl. Even on the date of the incident i.e. 2^nd January, 2015, she was in another room and in the room where the incident happened, another Peon namely, Priyanka was present and she had informed about the health of the said minor girl. Then immediately she has reported the matter to the Hostel Superintendent. The reply submitted by the petitioner was not found satisfactory and services of the petitioner have been terminated vide impugned order (Annexure-P/1).

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Learned counsel for the petitioner would submit that though the petitioner was on probation, but the impugned order is punitive in nature. Therefore, the impugned order (Annexure-P/1) terminating the services of the petitioner, without holding proper departmental enquiry is a stigmatic order and the same is not valid. Reliance is placed on the judgment of the Hon’ble Supreme Court in the matter of Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre For Basic SC {(1999) 3 SCC 60}.

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On the other hand, learned State Counsel would submit that as the petitioner was probationer, no opportunity was required to be given and,

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therefore, question of violation of principles of natural justice does not arise in the given facts of the case. He would further submit that Rule 10 (viii) of the Rules, 1966 provides for termination of the services of a Government Servant appointed on probation and the same was rightly invoked by the employer, which reads thus:-

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“10 (viii). Termination of the services ,

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(a) Of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation; or

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(b) Of a temporary Government servant appointed until further orders on the ground that his services are no longer required; or

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(c) Of a Government servant, employed under an agreement, in accordance with the terms of such agreement.”

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He would further submit that even in the appointment order (AnnexureP/2), there was condition that if the work and conduct of the petitioner during probation is not found satisfactory, services could be terminated by giving one month’s notice or in lieu of such notice, one month salary. In the instant case, after giving one month salary, services of the petitioner were terminated.

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I have heard learned counsel for the parties at length and perused the record with utmost circumspection.

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In the matter of Chandra Prakash Shahi Vs. State of UP {(2000) 5 SCC 152} it was observed that when the termination order is punitive in nature, enquiry is required and when the termination is only on account of general unsuitability, the order will not be punitive in nature.

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Relevant paragraph-28 reads thus:-

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“ 28 . The important principles which are deducible on the concept of “motive” and “foundation”, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of “motive”.”

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10.To ascertain true nature and character of the impugned order whether it

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is punitive in nature or the termination simplicitor, the language used in

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the order is material and the impugned termination order reads thus:-

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" dk;kZy; dysDVj ¼vkfnoklh½ fodkl dksfj;k ¼N0x0½

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(E-mail [email protected] Phone/Fax No.07836-232859)

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%&vkns’k %&

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dzekad@558@LFkk0&f’k{kk@vk0fo0@2014&15 %& dq0 lfjrk iSdjk] fu;fer HkR;] ‘kk0 m0 ek0 fo0 jkex<+ layXu@dk;Zjr vkfnoklh dU;k vkJe jkex<+] fodkl [k.M&lksugr] ftyk&dksfj;k ds }kjk izh eS0 dU;k Nk=kokl jkex<+ esa ?kfVr&?kVuk d{kk 10oha dh Nk=koklh Nk=k ds xHkZorh o izlo gksus laca/kh tkucw>dj lgh rF; Nqik;s tkus ds dkj.k dk;kZdkyhu i= dzaekd 335@LFkk0&f’k{kk@vk0fo0@2014&15 fnuakd 31-01-2015 ds }kjk dkj.k crkvks lwpuk i= tkjh dj rhu fnol esa tokc ekaxk x;k Fkk A dq0 lfjrk iSdjk ds }kjk izLrqr fnuakd 03-02-2015 dks dkj.k crkvks lwpuk dk tokc larks”kizn ugha ik;k x;kA QyLo:i~ budk mDr dR; N0x0 flfoy lsok vkpj.k fu;e~ 1965 ds

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fu;e 03 rFkk buds fu;qfDr vkns’k esa mYysf[kr lsok ‘krZ ds foijhr gksus ls lsok esa j[kus ;ksX; ugha ik;s tkus ds dkj.k dq0 lfork iSdjk] fu;fer Hk`R;] ‘kk0 m0 ek0 fo0 jkex<+ layXu@dk;Zjr vkfnoklh dU;k vkJe jkex<+] fodkl [k.M&lksugr dh lsoka, N0x0 flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 10 ¼vkB½ ds rgr~ ,d ekg dk osru HkRrs nsrs gq, lekIr dh tkrh gSA

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;g vkns’k rRdky izHkko’khy gksxkA

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dysDVj }kjk vuqeksfnr

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lgk;d vk;qDr vkfnoklh fodkl dksfj;k fnukad 12@02@2015”

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11.From perusal of the language used in the impugned termination order, it is evidently clear that termination of the petitioner was not on account of any unsatisfactory performance, but it was on the basis of the incident happened in the hostel, for which a notice has been issued and the reply of the petitioner was not found satisfactory and thereafter an allegation has been made that her conduct was not up to the mark as prescribed under Rule-3 of the Conduct Rules, which requires that every Government servant shall at all times maintain absolute integrity, devotion to duty and do nothing which is unbecoming of a Government servant. Putting such allegations, services of the petitioner were terminated in terms of the appointment order after invoking the power under Rule 10 (viii) of the Rules, 1966.

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12.Now, it is well settled that the temporary government servants or probationers are as much entitled to the protection of Article 311 (2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their

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services are liable to be terminated at any time by giving them a month’s notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The Court can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. Inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employees under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was founded on those factors or other disqualifications. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

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13.In the case at hand, the requirement of Article 311 (2) of the Constitution does not fulfill and, therefore, the impugned termination order is not sustainable and accordingly, it is set aside.

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14.However, it is made clear that the petitioner is not entitled for any back wages. On producing certified copy of this order by the petitioner, the respondent authorities shall allow the petitioner to join her services within a period of 15 days from the date of receipt of a copy of this

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order. It is also made clear that it would be open to the disciplinary authority to take disciplinary action against the petitioner in accordance with the relevant Rules.

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15.With the aforesaid observations, the Writ Petition is allowed.

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Sd/(Deepak Kumar Tiwari) Judge

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Barve

Sarita Paikra v. State Of Chhattisgarh And Ors.

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Sarita Paikra v. State Of Chhattisgarh And Ors.

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