S.B. Civil Writ Petition No.7654/2011

Kailash Chandra Sharma Vs. State of Rajasthan & Ors.

Order dated 01/05/2014

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

ORDER

S.B. Civil Writ Petition No.7654/2011

Kailash Chandra Sharma Vs. State of Rajasthan & Ors.

Date of Order

::::

01

st May, 2014

PRESENT

HON'BLE Dr. JUSTICE VINEET KOTHARI

Appearance:

Mr. M.S. Godara, for the petitioner.

Mr. Manish Patel, Addl. Govt. Counsel.

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BY THE COURT:

1.

The petitioner was appointed as Junior Technical

Assistant on contractual basis on 21.12.2009. By the impugned

communication (Annex.6) dated 29.07.2011, the respondent, District

Collector-cum-Project Coordinator of NREGA Scheme, wrote to the

Officer-in-Charge and Establishment Committee of the said Scheme,

to initiate action for recovery against the present petitioner and one

other Officer, namely, Biharilal Sharma, (Gram Sevak) on the basis

of audit objections, in which certain irregularities were found in the

implementation of the Scheme under the NREGA Scheme, where

these two officers were working.

S.B. Civil Writ Petition No.7654/2011

Kailash Chandra Sharma Vs. State of Rajasthan & Ors.

Order dated 01/05/2014

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2.

Agaisnt the said communication dated 29.07.2011, the

present writ petition was filed by the petitioner in this Court on

11.08.2011, just a few days after receipt of the said letter describing

the said communication as his termination order, whereas in fact no

such termination of contractual services had been effected by the

impugned communication and the only appropriate action was

directed to be initiated against these two erring officials including the

present petitioner.

3.

While issuing notices to the respondents, a coordinate

bench of this Court was persuaded to grant the interim order dated

19.08.2011, stayed the effect and operation of the impugned

communication/order dated 29.07.2011. The interim order dated

19.08.2011 is quoted herein below:

“Issue notice as to why this petition for writ

petition be not admitted. Issue notice of stay application

also.

In the meanwhile and until further orders, the

respondents shall not discontinue the petitioner from

service in pursuant to the instructions granted to the

Officer-In-charge, Establishment Section, Mahatma

Gandhi Narega, Bhilwara under the communication

dated 29.7.2011 by the District Programme

Coordinator-cum-collector, Bhilwara.”

4.

Though reply to the writ petition has been filed by the

respondent- Panchayati Raj Department, however, unfortunately no

S.B. Civil Writ Petition No.7654/2011

Kailash Chandra Sharma Vs. State of Rajasthan & Ors.

Order dated 01/05/2014

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application under Article 226 (3) of the Constitution of Indition was

filed by them seeking vacation of the said exparte stay order for a

long period of 3 years. The respondents in their reply, particularly in

para 9 thereof, have clearly stated that upon the enquiry being held,

the competent authority shall be entitled to take action in the matter.

The relevant para 9 of the reply is quoted herein below for ready

reference: -

“9. That the averments made in para No.9 of the

writ petition are denied in the manner they have been

stated by the petitioner. In the respectful submission of

the answering respondents, the order dt.24.6.2011 is a

speaking and reasoned order, wherein, detailed

technical findings have been mentioned and the

petitioner as well as other delinquents' liabilities

towards irregularities and illegalities in the works

carried out under MNREGA works have been pointed

out. At this juncture, it would be pertinent to point out

that the agreement entered into and executed between

the parties contains a provision that any misconduct on

the part of the first party, if proven, after an enquiry by

second party, shall entitle second party to terminate

contract services of first party and in the instant case,

the order impugned by t