Petitioner sought quashing of dismissal order ending his contractual role as Rojgar Sevak under NREGA. Court held termination was lawful after uncontroverted allegations following show cause, finding Article 311 inapplicable to contractual roles.
Writ petition for quashing dismissal order dismissed; no interference with termination order.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 223 of 2012
Subodh Kumar Hansda, son of Sri Manoranjan Hansda, resident of village, Koylabhasha, P.O. and P.S.- Wamangandhi, DistrictJamtara (Jharkhand) … … Petitioner
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--For the Petitioner : Mr. Kaushik Sarkhel, Advocate : Ms. Rajni Singh, Advocate For the Respondents : Mr. Apoorva Singh, Advocate ---
07 /29.11.2022 Heard Mr. Kaushik Sarkhel, learned counsel appearing on behalf of the petitioner along with Ms. Rajni Singh, Advocate
2. Heard Mr. Apoorva Singh, learned counsel appearing on behalf of the respondents.
3. This writ petition has been filed for the following reliefs:-
“For issuance of direction for quashing the dismissal order dated 12.09.2011 (Annexure-4) passed by Deputy Commissioner, cum-District Programme Coordinator, Jamtara (Respondent No. 2) whereby and whereunder the service of the petitioner has been dismissed, who was appointed as Rojgar Sevak, Gram PanchayatBanarnacha, Block-Fatehpur within the district of Jamtara; as also for issuance of a further appropriate writ, order or direction commanding/directing the respondents to reconsider the case of the petitioner after giving him opportunity of personal hearing.”
Arguments of the petitioner.
4. Learned counsel for the petitioner has submitted that the petitioner was initially appointed as Rojgar Sevak on contractual basis vide letter No. 1058 dated 01.09.2007 under NREGA scheme for a period of one year and the said period of engagement was extended from time to time on yearly basis. He further submits that a show cause was issued to the petitioner vide letter dated 31.05.2011 by the office of Deputy Commissioner, Jamtara. Pursuant thereto the petitioner filed his reply. He has also submitted that the allegations were primarily on the basis that the signatures were not matching. The learned counsel submits that the reply of the petitioner was rejected
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and the services of the petitioner was terminated vide impugned order contained in memo No. 508 dated 17.09.2011.
5. Learned counsel for the petitioner submits that impugned order is stigmatic in nature. Accordingly, proper enquiry should have been conducted and considering the nature of allegation involved in the present case, oral evidence was required to be adduced, as the allegation was in relation to the persons who had somewhere put their signature and somewhere thumb impression and at places, they had put their signature in English and at places they had put their signature in Hindi.
6. Learned counsel has relied upon the judgment passed by the Hon’ble Gujarat High Court in the case of Minakshiben Laxmanbhai Paraliya versus State of Gujarat in R/Special Civil Application No. 22681 of 2019 decided on 08.02.2022 reported in MANU/GJ/0569/2022. He submits that it has been held by the Hon’ble Gujarat High Court, after considering the various judgments passed by the Hon’ble Supreme Court that if the termination is stigmatic, even in the case of contractual employment, necessary enquiry is required to be done and principles of natural justice is required to be followed. He has further referred to paragraph 6.9 of the judgment to submit that such stigmatic orders which has been passed terminating the contract in MNREGA Scheme also requires an opportunity to defend and holding of departmental enquiry. Learned counsel submits that the present case is squarely covered the judgment passed by the Hon’ble Gujarat High Court.
Arguments of the Respondents.
7. Learned counsel appearing on behalf of the respondents on the other hand has submitted that it is not in dispute that the employment of the petitioner was on purely contractual basis under NREGA. He has also submitted that as many as 11 distinct allegations were leveled against the petitioner for which the petitioner was issued show cause notice. So far as allegations 1 to 9 are concerned, they were in relation to certain cuttings/mismatch in the signatures of various labourers in the muster roll. He further submits that so far as allegation No. 10 and 11 are concerned, the same is related to two distinct works and it was found that the muster roll was not maintained and there was complete
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mis-match with regard to payment shown to have been made and the payment which ought to have been made to the labourers. Learned counsel submits that so far as allegation No. 1 to 9 are concerned, it was responded to by the petitioner by stating that at the place of work, the labourers are in the state of intoxication and accordingly they differently signed at different time and place. He submits that so far as allegation No. 10 is concerned, the allegation made in number 10 was not duly responded to by the petitioner and the reply of the petitioner was completely silent with regard to allegation No. 11. Learned counsel submits that some of the allegations were denied and reply to allegation No. 10 was evasive and there was no reply with regard to allegation No. 11. Learned counsel submits that some of the allegations stood admitted even in the reply and the impugned order has been passed after considering the show cause and therefore no interference is called for under Article 226 of the Constitution of India.
8. The learned counsel while referring to the judgment passed by the Hon’ble Gujarat High Court has submitted that in the said case, though the employment was contractual, the communication of termination was stigmatic one and the termination indicated that the same was being issued in view of one F.I.R. instituted against the incumbent. He has further submitted that paragraph 6.9 of the judgment which has been relied upon by the petitioner also indicated that no enquiry was conducted prior to removal of the petitioner. He submits that in the present case, necessary enquiry was made, show cause was issued to the petitioner and considering the reply, the impugned order has been passed.
Findings of this court.
9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case it is not in dispute that the petitioner was initially appointed on purely contractual basis vide letter dated 01.09.2007 as Rojgar Sewak in NREGA Scheme for a period of one year. It further appears that the services of the petitioner was extended from time to time. It is further not in dispute that there was yearly extension of services of the petitioner.
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10. Vide show cause dated 31.05.2011, as many as 11 allegations were leveled against the petitioner with regard to maintenance of the records and the accounts and so far as allegation no. 1 to 9 are concerned, it is related to different works and it indicated mis-match of the signatures of the various persons whose signatures were found in the muster roll with specific reference to the roll numbers. So far as allegation no. 10 is concerned, it was in relation to programme number 3 of 2011-12 and at the time of inspection it was found that the excavation work was going on and 29 ft. was dug and an amount of Rs. 14,400/- only was paid but considering the extent of work, 70,000/- Rs. was required to be paid. It was also stated that altogether 10 labourers were found working and the muster roll was not maintained. No material for the work was available on the spot and the petitioner was asked to show cause regarding the difference in the payment of wages made and the payment of wages which was required to be made. So far as allegation No. 11 is concerned, it related to work No. 5 of 2011-12. In the said case also, the excavation work was going on and altogether 33 ft. was dug against which an amount of Rs. 21,600/- was paid, only 10 labourers were found working and the muster roll was not maintained and some material of bricks and 10 tractors bolder were also found and payment made to the labourers was much less and certain more allegations were levelled therein.
11. The petitioner responded to the show cause reply. This court has gone through the reply filed by the petitioner to the show cause and upon perusal of the reply, this court finds that allegation with regard to 1 to 9 was tried to be explained by the petitioner by stating that the labourers are the local mazdoors and at times they are under state of intoxication therefore they differently signed at different places. With regard to allegation No. 10, no reply was given except that the payment was made as per the work done. With regard to allegation No. 11, the petitioner did not respond at all.
12. Upon consideration of the show cause reply filed by the petitioner, the impugned order of termination of the contractual employment was passed.
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13. Upon perusal of the impugned order dated 17.09.2011, this court finds that the reply filed by the petitioner was rejected . With regard to the allegation No. 10 and 11, it was clearly recorded that non maintenance of muster roll was quite serious and the action of the petitioner amounted to indiscipline and dereliction of duty. The reply of the petitioner was rejected. Admittedly no enquiry as such was made by taking any oral evidence of the various persons but the fact remains that some of the major allegations made in the show cause notice remained totally uncontroverted in the show cause reply filed by the petitioner. Thus, the allegation No. 11, stood admitted and reply to allegation No. 10 was evasive.
14. In the aforesaid facts and circumstances, this court is of the considered view that there has been due compliance of the principles of natural justice before passing the impugned order of termination of contractual employment. The fact remains that some of the allegations in the show cause remained uncontroverted and reply to some allegation was evasive. This court is of the considered view that uncontroverted allegations need not be proved. Though it is not in dispute that no regular departmental proceedings was initiated and no oral evidence as such was recorded after issuance of the show cause but some of the allegations having remained uncontroverted , the respondent authority was within his right to terminate the contractual employment of the petitioner. In the matter of contractual appointment, the provisions of Article 311 of the Constitution of India is not applicable and what has to be seen is as to whether there has been sufficient compliance of the principles of natural justice before terminating the services of the petitioner. In the aforesaid facts and circumstances of this case, this court finds that there has been sufficient compliance of the principles of natural justice and considering the allegations and the show cause reply filed by the petitioner, this court is of the considered view that the respondents were within their right to terminate the contractual employment of the petitioner.
15. So far as the judgment passed by Hon’ble Gujarat High Court, as has been relied upon by the petitioner, is concerned, the service of the employee in the said case was terminated only because one F.I.R.
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was instituted and there has been no enquiry, which is not the case here. Moreover, from the perusal of the official web-site of Hon’ble Gujarat High Court it appears that appeal against the aforesaid judgement has been filed and delay in filing appeal has been condoned vide order dated 29.08.2022 in civil application no. 1068 of 2022 in LPA No. 19843 of 2022. In the present case the services of the petitioner have been discontinued/terminated after giving a show cause and considering the reply of the petitioner as mentioned above. It is also important to note that it is not the case of petitioner that any criminal case has been instituted against the petitioner arising out of the impugned order / action.
16. In view of the aforesaid facts and circumstances, this court does not find any material illegality or irregularity in the impugned order dated 17.09.2011 terminating the contractual employment of the petitioner calling for any interference under Article 226 of the Constitution of India. Accordingly, this writ petition is dismissed. 17. Pending I.A., if any, is closed.
(Anubha Rawat Choudhary, J.)
Binit
3 issues framed by the court
Whether principles of natural justice were complied with before terminating the contractual services of a Rojgar Sevak.
Whether Article 311 of the Constitution of India is applicable to termination of contractual appointment under NREGA.
Whether the High Court can interfere under Article 226 with a termination order passed after consideration of show cause reply.
Colour shows how this judgement treated each authority
Minakshiben Laxmanbhai Paraliya versus State of GujaratDistinguished¶15
Minakshiben Laxmanbhai Paraliya versus State of Gujarat in R/Special Civil Application No. 22681 of 2019 decided on 08.02.2022 reported in MANU/GJ/0569/2022
2 provisions across 1 enactments
Subodh Kumar Hansda
State of Jharkhand
Deputy Commissioner, Jamtara
Block Development Officer, Fatehpur
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
