1. Contractual appointment — Non-extension of service for unsatisfactory performance — Challenge to termination as stigmatic — Writ petition and subsequent appeal. (Para 4 , 11 , 12 , 13 )
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2024 Supreme(SC) 683
SUPREME COURT OF INDIA
HIMA KOHLI, AHSANUDDIN AMANULLAH, JJ.
Swati Priyadarshini – Appellant
Versus
The State of Madhya Pradesh & Ors. – Respondents
Civil Appeal No. 9758 of 2024 [@ Special Leave Petition (C) No. 11685 of 2021]
Decided On : 22-08-2024
Important Points
IMPORTANT POINT
Termination – Mere non-mention of background situation or show-cause notices in order of termination cannot, by itself, be determinative of nature of order – Form of an order is not its final determinant and Court can find out real reason and true character behind terminating/removing an employee.
Termination – Mere non-mention of background situation or show-cause notices in order of termination cannot, by itself, be determinative of nature of order – Form of an order is not its final determinant and Court can find out real reason and true character behind terminating/removing an employee.
Subject
Service Law - Termination of Service
Act Referred
CONSTITUTION OF INDIA: Art.136, Art.226, Art.311
FUNDAMENTAL RULES: R.52
MADHYA PRADESH UCHCHA NYAYALAYA KHAND NYAYAPEETH KO APPEAL ADHINIYAM: S.2
FUNDAMENTAL RULES: R.52
MADHYA PRADESH UCHCHA NYAYALAYA KHAND NYAYAPEETH KO APPEAL ADHINIYAM: S.2
Headnote
Service Law – Termination – From post of Assistant Project Coordinator (APC) as a contractual appointee under Sarv Shiksha Abhiyan – Appellant topped revised Merit List, leading to her appointment as APC – It is no justification for appellant to contend that she was late, but worked late/overtime such that work did not suffer – However, with regard to hostel, charge was given to her for only 5/6 days – As such, it cannot be said that within such a short period, appellant, without fully understanding attendant issues, could have straightaway given any opinion/report on hostel – If it is a case of termination simpliciter and non-stigmatic, then one month’s notice was required to be issued to appellant, which was not done in instant matter – Mere non-mention of background situation or show-cause notices in order of termination cannot, by itself, be determinative of nature of order – Form of an order is not its final determinant and Court can find out real reason and true character behind terminating/removing an employee – Impugned Judgment quashed and set aside and Judgment of Single Judge stands revived, with a modification to the extent that appellant shall be entitled to all consequential benefits including notional continuation in service at par with other similarly situated employees, but with back wages restricted to 50% – In view of long passage of time, liberty denied to respondents to proceed afresh against appellant as was granted by Single Judge – However, this will not preclude respondents from taking action against appellant in accordance with law in futuro apropos her official duties on post in question, if situation so arises. (Paras 30, 32, 33 and 36)
Facts of the case:
Present appeal has been filed against Final Judgment and Order dated 03.02.2020 passed by Division Bench of High Court of Madhya Pradesh at Jabalpur in Writ Appeal whereby it overruled Judgment dated 20.06.2017 passed by Single Judge in Writ Petition.
Findings of Court:
Respondents did not comply with Clause 4 – either the first part or the second part thereof. Order dated 30.03.2013 does visit appellant with evil consequences and would create hurdles for her re further employment.
Result : Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Mr. Prashant Bhushan, AOR Mr. Rahul Gupta, Adv. Ms. Alice Raj, Adv.
For the Respondent(s): Mr. Nachiketa Joshi Sr. Adv., A.A.G. Mr. Pashupathi Nath Razdan, AOR Mr. Nirmal Kumar Ambastha, Adv. Mr. Mirza Kayesh Begg, Adv. Ms. Maitreyee Jagat Joshi, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Mr. Argha Roy, Adv. Ms. Ojaswini Gupta, Adv. Ms. Ruby, Adv. Mr. Zartab Anwar, Adv.
For the Petitioner(s): Mr. Prashant Bhushan, AOR Mr. Rahul Gupta, Adv. Ms. Alice Raj, Adv.
For the Respondent(s): Mr. Nachiketa Joshi Sr. Adv., A.A.G. Mr. Pashupathi Nath Razdan, AOR Mr. Nirmal Kumar Ambastha, Adv. Mr. Mirza Kayesh Begg, Adv. Ms. Maitreyee Jagat Joshi, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Mr. Argha Roy, Adv. Ms. Ojaswini Gupta, Adv. Ms. Ruby, Adv. Mr. Zartab Anwar, Adv.
Table of Contents
2. Whether the non-extension order was simpliciter or stigmatic — Requirement of regular inquiry and notice period under service rules — Allegations of malafide action. (Para 14 , 15 , 16 , 17 , 18 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 )
3. The order resulted from show-cause notices regarding misconduct — Failure to provide mandatory notice for inefficiency — Substance of the order outweighs its form. (Para 29 , 30 , 32 , 33 )
4. Termination orders in the form of non-renewal are stigmatic if they result from misconduct allegations and cause evil consequences, requiring compliance with natural justice. (Para 33 , 34 , 35 )
5. Impugned judgment set aside — Single Judge's order revived with 50% back wages — Respondents barred from initiating fresh proceedings. (Para 36 , 37 )
6. When is a termination order considered stigmatic despite being worded as a simple non-renewal of contract?
An order is stigmatic if it is a cloak for punishment based on misconduct, negligence, or inefficiency, and visits the employee with evil consequences, regardless of the innocuous form of the order. (Para 33 , 34 , 35 )
7. What is the legal requirement for terminating a contractual employee on grounds of inefficiency under the RGPSM rules?
Under Clause 4 of the RGPSM, persons working on contract must be provided with one month's notice if they are to be terminated on the grounds of inefficiency. (Para 31 , 32 )
8. How is the test applied to determine if a termination of service constitutes a punishment attracting constitutional protections?
The court applies two tests: whether the servant had a right to the post or rank, and whether the order visits the servant with evil consequences, such as loss of pay or stigma affecting future career. (Para 34 , 35 )
JUDGMENT :
Ahsanuddin Amanullah, J.
Heard learned counsel for the parties.
2. We are inclined to grant leave; hence, granted.
3. The present appeal has been filed against the Final Judgment and Order dated 03.02.2020 (hereinafter referred to as the “Impugned Judgment”) passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur (hereinafter referred to as the “High Court”) in Writ Appeal No.956/2017, whereby it overruled the Judgment dated 20.06.2017 passed by the learned Single Judge in Writ Petition No.8404/2013.
FACTUAL MATRIX:
4. On 15.10.2012, the sole appellant was appointed by the Respondent No.4 to the post of Assistant Project Coordinator (hereinafter referred to as “APC”) under the Sarv Shiksha Abhiyan (hereinafter referred to as “SSA”) on contract basis, initially for one academic session (1 year), renewable in subsequent years for two years each “subject to evaluation of work in the first year.”
5. It was contended by the appellant that she received some information about alleged misconduct and immoral activity going on in the CWSN (abbreviation for “Children with Special Needs”) Girls’ Hostel, Sehore (hereinafter referred to as the “hostel”) run by one Bright Star Social Society, a non-governmental organization (hereinafter referred to as “Bright Star”). The State Level Committee raided the hostel on a complaint made by the appellant. The State Level Committee found the allegations, made by the appellant to be true eventually leading to termination of the Memorandum of Understanding with Bright Star to run the hostel with effect from 08.01.2013.
6. On 09.01.2013, the appellant was made in-charge of the hostel. An order was issued by the Sub-Divisional Officer and Magistrate, Sehore on 10.01.2013 to the District Coordinator, State Education Centre, Sehore to lodge a First Information Report against the warden under whose supervision the alleged crime(s) was/were being committed in the hostel.
7. By order dated 14.01.2013, charge of the hostel was withdrawn from the appellant after 5/6 days of assigning the charge. The appellant received a Show-Cause Notice (hereinafter abbreviated to “SCN”) issued by the Respondent No.5 which reads as under, 1[For convenience, English translation is used. The original SCN was issued in Hindi.] :
“The attendance register was perused by the District Project Coordinator District Education Centre, Sihore under the above subject. Absent was marked on 4th and 5th January, 2013 by me in the attendance register. (sic)
Signatures were made by you in the said dates in the attendance register and your coming in the office at 12:00 hours on 14.02.13 is a negligence on your part towards duties and is violation of orders of officer.”
To the above, the appellant replied on 16.02.2013, stating that signatures have not been made by her on the attendance register. She stated that due to the arrival of her daughter from Bhopal on 14.02.2013, she was late on the said date. The appellant contended that whenever she comes late to work, she stays late in the office till evening 7-8 PM and completes all the work.
8. On 15.03.2013, another SCN was issued by the Respondent No.4 to the appellant with the following charges:
“i. Marking of disabled boys/girls and verification of the specified list prepared by Social Justice was to be done by you for the execution of several activities through Arushi Institution but marking and verification was not done by you.
ii. The proceedings of appointing volunteers and MRC are prevalent in the Arushi Institution. You are also nominated therein as representative of District Education Centre but due to your in-cooperative, obstruction and negligent attitude, the appointment on the said posts could not be made and due to this reason, the other activities including education is adversely being affected.
iii. No report was submitted when the monitoring of CWSN hostel was done and what improvements were made.
iv. Entry of unauthorized persons in the hostel is strictly proh
