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Prakash vs Dr. H.S. Gaur Vishwavidyalaya And … on 5 November, 2001

Madhya Pradesh High Court
Prakash vs Dr. H.S. Gaur Vishwavidyalaya And … on 5 November, 2001
Equivalent citations: 2002 (2) MPHT 266
Author: A Mishra
Bench: A Mishra


ORDER

Arun Mishra, J.

1. Petitioner assails validity of the order dated 13-10-2000 ordering his dismissal from service for extremely bad performance and unsatisfactory work. In lieu of three month’s notice, three month’s salary was to be paid but the amount was ordered to be a adjusted against the dues against petitioner.

2. Petitioner submits that he was appointed on 9-11-82 as sweeper in the pay scale of Rs. 125 – 150/-. The appointment was made in accordance with para 5 of Statute No. 31. As per para 5 of Statute No. 31, in no case the total period of probation shall exceed three years and by the afflux of time, the petitioner acquired permanent status on 10-5-1985, The order of termination is stigmatic, violative of natural justice and was inflicted without affording opportunity of being heard. No enquiry was conducted.

3. The respondent-University contends that petitioner was a habitual absentee and was in habit of mis-behaving with his seniors and ignoring their command and was most indisciplined and irregular employee. He was issued warning to improve his conduct. Notice was given in accordance with para 13 (a) of Statute No. 31. Removal is not illegal.

4. Para 12 of the Statute No. 31 provides that a permanent employee shall be required to give three months’ notice in case he wishes to resign or he shall pay to the University three months’ salary in lieu of such notice. If the University terminates the services of a permanent employee, a notice to that effect shall be served on him three months before the date on which he is to be relieved. In the absence of such notice the University shall pay him three months’ salary. Such notice shall not be necessary if the employee is removed from service, dismissed or compulsorily retired. The validity of this para 12 of Statute No. 3 is seriously in doubt as services of permanent employee cannot be dispensed with by such a procedure in view of the pronouncement of the Supreme Court in Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly and Anr., [(1986) 3 SCC 156].

5. The order of removal dated 13-10-2000 Annexure P-2 is clearly an order of dismissal which casts stigma. Petitioner was removed on ground of unsatisfactory work alongwith charging bad behaviour. Para 13 of Statute No. 31 provides that the services of a University employee may be terminated on the ground of wilful neglect of duly, misconduct, physical or menial unfitness and other grounds mentioned therein. Para 57 of Statute No. 31 provides procedure for imposition of penalty; provision reads as under :–

“57. (1) The appointing authority may, for good sufficient reasons, impose on an employee the following penalties:–

(a) Censure;

(b) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the University by negligence or breach of orders;

(c) withholding of increments of pay;

(d) reduction to lower time scale of pay, grade or post;

(e) compulsory retirement;

(f) removal from service;

(g) dismissal from service which shall ordinarily be a disqualification for future employment in the University.

Besides above, the penalty of fine not exceeding rupees five may be imposed on a class IV employees for petty carelessness, unpunctuality, idleness or similar misconduct of a minor nature.

(2) The appointing authority may institute disciplinary proceeding against an employee of the University.

(3) No order imposing any of the penalties specified to sub-paragraph (1) above other than fine shall be made except in accordance with the procedure for imposing penalty on Government servant prescribed by the Madhya Pradesh Government and in force at the time the appointing authority orders an inquiry against employee concerned.”

Sub-para (2) of para 57 of Statute No. 31 clearly provides for institution of disciplinary proceeding against an employee. Sub-para (1) of para 57 of Statute No, 31 empowers an appointing authority to impose various punishments including that of removal from service for good sufficient reason. Sub-para (3) of para 57 of Statute No. 31 framed under M.P. Vishwavidyalaya Adhiniyam clearly provides no order imposing any of the penalties as specified in sub-paragraphs (1) other than fine shall be made except in accordance with the procedure for imposing penalties on Government servant prescribed by the Madhya Pradesh Government and in force at the time the appointing authority orders an inquiry against the employee concerned. Thus, by virtue of sub-para (3) of para 57 of Statute No. 31 M.P. Civil Services (Classification, Control and Appeal) Rules are applicable and for inflicting penalty of removal or dismissal from service procedure prescribed of Rule 14 is required to be observed. The procedure prescribed was not followed, no charge-sheet was issued, no enquiry as prescribed was conducted. Hence, the impugned order is held to be bad in law and void.

6. The order Annexure P-2 amounts to inflicting the penalty which could not have been imposed without holding a departmental enquiry and properly charge-sheeting the petitioner. The petitioner was removed in the year 2000 whereas warning letters annexed by respondent No. 1 are mostly of the year 1994-95 and one letter dated 2-1-98 by which his explanation was required for unauthorized absence. Service of an employee cannot be terminated on the ground of absence without departmental enquiry. Even in the case of absence an enquiry is required to be conducted as per law laid down by the Supreme Court in Laxman Dundappa Dhamnekar and Anr. v. Management of Vishwa Bharata Seva Samiti and Anr., (2001 AIR SCW 3786). There is no provision under the Statute No. 31 enabling the respondent-University to terminate service without holding an enquiry on the ground of absence. In Scooters India Limited v. M. Mohammad Yaqub and Anr., [(2001) 1 SCC 61], the Supreme Court held for termination of service in the event of absence, enquiry is still required to be conducted into the facts as to why he remained absent, whether any medical certificate was sent or not etc. following the principle of natural justice. In the instant case, no notice was issued proposing termination. Outright his service was dispensed with on 13-10-2000. No notice to show cause is said to have been issued in 1999-2000. Clearly notices issued in 1994-1995 or June, 1998 were stale and action on them stood concluded. These notices/action could not be made basis of the order dated 13-10-2000.

7. Resultantly, the writ petition is allowed, the impugned order of dismissal dated 13-10-2000 is quashed and the petitioner is directed to be re-instated alongwith backwages. Costs on parties.

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