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2017 Supreme(MP) 406
IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul, J.
Shashi Dixit - Petitioner
Versus
State of M.P. & others - Respondents
W.P. No. 12311 of 2012
Decided On : 22-02-2017
For the Petitioner:Mr. Mrigendra Singh, Senior Counsel with Ms. G. Rasool, Advocate
For the Respondent: Mr. Pushpendra Yadav, G.A.
The main legal point established in the judgment is that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary, and must be followed before passing orders based on alleged misconduct.
Headnote:
Natural Justice - Termination of Service - 20.2.2003 - The termination order was based on alleged misconduct of the petitioner, casting stigma on the petitioner. The court held that the principles of natural justice were required to be followed before passing such an order. The court referred to the enabling provision which was silent about giving opportunity of hearing before termination of service. The court emphasized that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. The court set aside the impugned orders and directed the respondents to provide adequate opportunity to the petitioner and then pass a fresh order in accordance with law.
Fact of the Case:
The petitioner, a Home Guard, was terminated based on an inquiry conducted behind her back. The petitioner challenged the termination order on the grounds of lack of opportunity and the authority of the disciplinary/punishing authority.
Finding of the Court:
The court found that the termination order was based on alleged misconduct, casting stigma on the petitioner, and held that the principles of natural justice were required to be followed before passing such an order. The court set aside the impugned orders and directed the respondents to provide adequate opportunity to the petitioner and then pass a fresh order in accordance with law.
Issues: The issues were lack of opportunity for the petitioner and the authority of the disciplinary/punishing authority.
Ratio Decidendi: The court held that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. The court emphasized that the termination order was based on alleged misconduct, casting stigma on the petitioner, and thus the principles of natural justice were required to be followed before passing such an order.
Final Decision: The court allowed the petition, set aside the impugned orders, and directed the respondents to provide adequate opportunity to the petitioner and then pass a fresh order in accordance with law.
Sujoy Paul, J.
1. This writ petition filed under Article 226 of the Constitution of India, takes exception to the orders dated 08.07.2010 (Annexure-P/1), 06.12.2012 (Annexure-P/2) and the inquiry report dated 29.05.2010 (Annexure-P/4).
2. Briefly stated, the case of the petitioner is that she was working as a Home Guard at Rewa. A complaint was allegedly preferred against her by one Mr. N.R. Pachori, District Commandant. Thereafter, an inquiry was conducted behind her back and inquiry report dated 29.05.2010 was prepared. In the said inquiry, the petitioner was held to be guilty. The inquiry was conducted by Ms. Sangita D. Kumar, the then Divisional Commandant Rewa, Division Rewa. The said inquiry report was also placed before a three members committee consisting of said Divisional Commandant, Rewa Division Rewa, District Commandant, Home Guard Rewa and ASI, Home Gurad Rewa. The committee accepted the recommendation and terminated the petitioner w.e.f. From 26.08.2010.
3. The impugned order is called in question on twin grounds. Firstly, the inquiry was conducted behind back of the petitioner and no opportunity of any nature has been given to the petitioner. Secondly, it is submitted that the person who has conducted the inquiry (Divisional Commandant) could not have acted as a disciplinary/punishing authority.
4. Mr. Singh, learned counsel for the petitioner apprised the Court that earlier W.P. No.10753/2010 was filed by the petitioner against the inquiry report and an interim order was passed on 18.08.2010. However, by that time since termination order dated 08.07.2010 was already issued, the petition was withdrawn with the liberty to challenge the termination order before the appropriate Forum. The petition was permitted to be withdrawn on 25.02.2011.
5. Mr. Yadav, leaned G.A. submits that the petitioner was working with Home Guard, which as per its nature is a voluntary organization. The rules applicable to the civil post holders or regular employees of State Government are not applicable. The petitioner's conduct was not found to be proper and satisfactory. Thus, by communication dated 09.03.2009, it was decided to apprise and warn the petitioner. Subject to giving that warning and subject to her proper conduct, she was given extension of three years. Attention was drawn on letter dated 08.04.2009 (Annexure-R/2). It is submitted that since petitioner's conduct was not proper, after holding inquiry, the decision was rightly taken by the competent authority. It is submitted that service conditions of the petitioner are governed as per the circular dated 20.02.2003 (Annexure-R/3). It is further submitted that the decision is taken by the Additional Commissioner who is a competent authority as per Clause 6(i) of the said instructions. Mr. Yadav, leaned G.A. further submits that the petitioner withdrew her earlier petition and only liberty which was prayed for was to submit a departmental representation There was no statutory remedy of appeal available to the petitioner against the termination order. Hence, even if Annexure-P/2 is passed rejecting her representation against the termination order, this petition cannot be entertained against the termination order.
6. No other point has been pressed by the learned counsel for the parties.
7. I have heard the parties at length and pursued the record.
8. No statutory rule or statutory provision is brought to the notice of this Court which deals with service conditions of an employee. Reliance is placed on executive instructions dated 20.2.2003 (Annexure R/3). Relevant clause which deals with termination of an employee reads as under:
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