SHASHIBHUSHAN Vs. STATE OF M P

JUDGEMENT

(1.) THIS petition filed under Article 226/227 of the Constitution of India impugns the order 08.05.1991 (Annexure P/13), whereby the Petitioner, who was working on the post of Moharrir, was removed from service on the ground of serious misconduct committed by the Petitioner. The facts of the case, in nutshell, are that the Petitioner was appointed as Tax Collector (Moharrir) vide order dated 25.01.1990 (Annexure P/1) for a period of two years, on probation. According to the Petitioner, the Respondent No. 3 - the then Chairman of Special Area Development Authority, Beladila, Dantewada visited the place of posting of the Petitioner at barrier (naka), at that time, the Petitioner was absent. The Petitioner was accordingly issued a show cause notice dated 24.12.1990(Annexure P/2) to submit his explanation within a period of three weeks. The Petitioner vide his representation dated 27.12.1990(Annexure P/3) submitted his explanation stating that due to his all of sudden indisposition, the Petitioner had to leave the working place. It was further stated that the said conduct would not be repeated in future.

(2.) THE then Chief Executive Officer of Respondent No. 3 issued a second show cause notice on 10.01.1991 (Annexure P/5) as to why the Petitioner be not suspended from service. The Petitioner further submitted his explanation vide representation dated 14.01.1991 (Annexure P/6) stating that the date of absence be treated as leave and the Petitioner be pardoned for the said conduct. It was also stated that the Petitioner had applied earlier for leave which was forwarded but could not be placed before the Chairman, Special Area Development Authority as such the absence was not willful. The Petitioner was suspended from service vide order dated 17.01.1991 (Annexure P/7). According to the Petitioner, the Petitioner was not served with the charge-sheet despite his request letters dated 06.04.1991, 09.04.1991 and 14.05.1991 (Annexure P/8, P/9 and P/10, respectively). The Respondents No. 2, 3 and 4 proceeded against the Petitioner ex-parte and passed the impugned dismissal order dated 08.05.1991 (Annexure P/13) on the ground that on holding the departmental enquiry it has been found that the Petitioner had committed grave misconduct with a purpose to cause loss to the department, as such in view of the fact that the Petitioner was on probation, the service of the Petitioner was dimissed. Shri Prafull Bharat, learned Counsel appearing for the Petitioner submits that the service of the Petitioner was dismissed on the ground of alleged misconduct for which it appears that the enquiry was conducted without affording any opportunity of hearing to the Petitioner. Even the charge-sheet was not served on the Petitioner despite his letters dated 06.04.1991, 09.04.1991 and 14.05.1991. Learned Counsel further submits that this amounts to infraction of the provisions of Article 311(2) of the Constitution of India, hence the dismissal order be quashed being illegal, unconstitutional and contrary to the provisions of law as well as principles of natural justice. In this petition, notices were issued to the Respondents on 15.11.1991. Pursuant to the notice the Respondents appeared and filed their reply. In the meantime on abolition of the Special Area Development Authority, an application for amendment (I.A. No. 4303/96) in the cause title was filed and the Respondents were modified accordingly vide order dated 06.05.1996 and notice was issued to the newly impleaded Respondents vide order dated 21.09.1996. Th Respondents No. 2 to 4 have filed their return on 19.10.1994. The Respondents No. 2 to 4 remained throughout absent. The S.P.C. was issued on 28.06.2005 to the Respondents No. 2,3 and 4, which was served but no representation was filed on their behalf.

(3.) SO far as the averments of the Respondents No. 2 to 4 in the return with regard to the appointment of the Petitioner is concerned, it is no one's case that the dismissal order was passed on the ground that the appointment of the Petitioner was not in accordance with law and as such it is not necessary to go into the facts of the case so far as the appointment of the Petitioner is concerned. The Supreme Court in the case of Anoop Jaiswal v. Government of India and another { : (1984) 2 SCC 369} has observed in para 12, as under: