Swati Priyadarshini vs The State Of Madhya Pradesh

2024 INSC 620 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9758 OF 2024 [@ SPECIAL LEAVE PETITION (C) NO.11685 OF 2021]

SWATI PRIYADARSHINI … APPELLANT

VERSUS

THE STATE OF MADHYA PRADESH & ORS. … RESPONDENTS

J U D G M E N T

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 Signature Not Verified Digitally signed by referred to as the “Impugned Judgment”) passed by the Anita Malhotra Date: 2024.08.22 16:51:03 IST Reason:

Division Bench of the High Court of Madhya Pradesh at 2

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 3

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was withdrawn from the appellant after 5/6 days of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 under1:

“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 rgister. (sic)

Signatures were made by you in the said dates in the attendance register and your coming in the office at 12:00 hours 1 For convenience, English translation is used. The original SCN was issued in Hindi.

4 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.

5 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 prohibited and you being posted at a responsible post, it is your duty to ensure prohibition on the entrance of unwanted persons in the hostel but telling about this is very far and you yourself has tried to enter the hostel along with the crowd of outsiders. Further you put pressure on the senior officers to give entrance to the unauthorized persons in the hostel. The work done beyond your official duties, comes under the category of indiscipline.

v. Your head office is situated at Sihore, but you are not residing at the headquarter and come from Bhopal everyday vi. You do not come in the office at right time also and in spite of being late,you made signature on the attendance register. It is indiscipline on your part.” (sic)

9. The appellant vide representation dated

20.03.2013 stated that all tricks were being adopted

for removing her from the post of APC. She stated

that SCNs were being issued to her even for small

things. She alleged non co-operation from other

officers and that she was being harassed as she had

complained about the hostel.

10. The appellant replied to the SCN dated

15.03.2013 on 22.03.2013, inter alia, countering that 6

she was being subjected to non-cooperation and mental

harassment by the officers. She further alleged that

her reputation was being spoiled by giving negative

feedback to senior officers.

11. Order dated 30.03.2013 was passed by the

Respondent No.4 deciding not to extend the contract

of the appellant as APC from 31.03.2013 on the ground

of dereliction of duty, as the work/performance of

the appellant was found to be unsatisfactory. English

translation of this order as annexed by the appellant

with the paper-book reads as under:

“Under the above subject matter and under the Sarv Shiksha Abhiyan on 30.03.2013 in the meeting of the District Appointment Committee after the consideration and determination is done and subsequent to the same this decision has been taken that as you work is not satisfactory and due to this reason from the end dated 31.03.2013 of the Education Session your contract service may not be increased.

In the context of the above decision from dated 31.03.2013 furthermore your contract service is not increased.” (sic)

12. Aggrieved, the appellant/original writ-

petitioner invoked Article 226 of the Constitution of

India (hereinafter referred to as the “Constitution”) 7

to file Writ Petition No.8404/2013 before the High

Court against the order dated 30.03.2013 supra

refusing to renew/extend her services. A learned

Single Judge allowed this writ petition on 20.06.2017

and quashed the order dated 30.03.2013, holding that

the termination orders being stigmatic in nature,

relating to alleged misconduct involving moral

turpitude, the same could not have been passed

without holding a regular enquiry.

13. Aggrieved by the learned Single Judge’s judgment

dated 20.06.2017, the official respondents filed Writ

Appeal No.956/2017 under Section 2 of The Madhya

Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal)

Adhiniyam, 2005 before the Division Bench, which was

allowed on 03.02.2020, and now stands impugned by the

appellant.

APPELLANT’S SUBMISSIONS:

14. Mr. Prashant Bhushan, learned counsel for the

appellant submitted that the order dated 30.03.2013

was clearly stigmatic in nature and thus could not

have been passed without giving her an opportunity of

being heard. It was submitted that the learned Single

Judge has rightly held so, and the Division Bench has 8

gone only by the text of the order dated 30.03.2013

to erroneously hold that the same was “simpliciter”.

15. It was contended that the rules stipulate that

the minimum tenure of service of a contractual

appointee will be at least one year in the first

instance and two years each subsequently, subject to

evaluation of work in the first year whereas in the

present case, the appellant had put in only 5 months

and 15 days. Further, it was submitted that the

curtailment of the tenure of the appellant was in

violation of the provisions of the rules of the Rajiv

Gandhi Prathmik Shiksha Mission2 (hereinafter referred

to as “RGPSM”) which provide that for persons working

on contract, notice of one month is to be served, if

their tenure is to be curtailed on the ground of

inefficiency. Moreover, learned counsel submitted

that the respondents were further bound by orders

dated 09.03.2012 and 13.03.2012 issued by the

Respondent No.2, which specifically provide that

contractual workers in the SSA could not be

terminated on the ground of inefficiency without

2 Erstwhile name of the SSA.

9

affording them an opportunity of being heard, in

accordance with the principles of natural justice.

16. It was pointed out by the learned counsel that

the Division Bench also failed to take into

consideration that the appellant was the victim of

malafide counter-action by the Respondents No.4 and 5

as it was she who had brought to the notice of the

authorities the misdeeds being committed at the

hostel run by Bright Star, under the aegis of the

State, which was sought to be buried by the

respondents.

17. Learned counsel contended that the glaring fact

was that the appellant was assigned the charge of the

hostel on 09.01.2013, which was revoked on 14.01.2013

without giving any reason/ground for such action.

Learned counsel submitted that this discloses that

the respondents made an ex-post-facto justification

for removing her and that during those 5/6 days, no

incident had occurred, which may have justified such

extreme action against the appellant.

18. Further, the stand of the learned counsel was

that under the RGPSM, the Appointing Authority for

the post of APC is the State Level Appointing 10

Authority, whereas she had been removed by the

District Level Committee, in contravention of Article

311(2)3 of the Constitution.

19. In support of his contentions, Mr. Bhushan

relied upon the following decisions of this Court:

1. Anoop Jaiswal v Government of India, (1984) 2

SCC 369

2. Gujarat Steel Tubes Ltd. v Mazdoor Sabha,

(1980) 2 SCC 593

3. State Bank of India v Palak Modi, (2013) 3

SCC 607

RESPONDENTS’ SUBMISSIONS:

20. Per contra, Mr. Nachiketa Joshi, learned

Additional Advocate General, for the respondents –

the State of Madhya Pradesh and its functionaries –

in support of the Impugned Judgment submitted that it

was rightly held by the Division Bench that it was

within the competence of the authority to determine

as to whether the service of a person claiming

3 “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.

xxx

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

xxx” 11

continuation was satisfactory. For this proposition,

reliance was placed on State of Uttar Pradesh v Ram

Bachan Tripathi, (2005) 6 SCC 496 and Rajesh Kumar

Shrivastava v State of Jharkhand, (2011) 4 SCC 447.

21. It was submitted that the order dated 30.03.2013

was an order simpliciter without involving any stigma

being basically an order of non-extension of the

appellant’s contractual services. He submitted that

it does not involve any evil consequences nor is

founded on any misconduct. The further submission was

that the appellant, having been appointed on

contractual basis, has no right of service as such.

22. Relying upon the terms of service, it was

pointed out that the same clearly indicated that the

appointment would be purely temporary in nature and

subject to the contractual conditions stipulated in

the contract. It was submitted the even the letter of

appointment dated 15.10.2012, under “Service

Conditions” stated that:

“1. This appointment will be absolutely temporary and will be under the contract conditions of Mission.

2. If the work is not found satisfactory or if the post is not required, then the service can be terminated without any prior information.

12 …”

23. In the aforesaid light, it was submitted that in

the present case despite the appellant having been

issued SCNs seeking explanation for her non-

performance, there was no improvement from her end

and since her work was found to be unsatisfactory,

the contract was not extended. In support of his

contentions, learned counsel also relied upon the

following:

1. State of Uttar Pradesh v Ram Chandra Trivedi,

(1976) 4 SCC 52

2. Chandra Prakash Shahi v State of Uttar

Pradesh, (2000) 5 SCC 152

24. It was submitted that the appellant was in the

habit of remaining absent from work and neither

discharged her duty of marking the names of

specially-abled boys/girls and nor did verification

of the specified list prepared by the Department of

Social Justice for execution of several activities

through the Arushi Institutions. Further, it was

contended that in the Committee constituted to

appoint volunteers and MRC in the Arushi

Institutions, the appellant was appointed as the 13

representative of District Education Centre and due

to her non-cooperative, obstructive and negligent

attitude, such appointment were not made, leading to

other activities, including education, being

adversely affected.

25. Moreover, it was submitted that the appellant

did not submit a report on the hostel when it was

under her monitoring and she did not inform whether

there was any improvement or not and if so, the

details thereof and steps taken. It was submitted

that only because the appellant had previously been

issued some appreciation letters, future

unsatisfactory conduct cannot be saved basis her past

conduct.

26. Learned counsel further pointed out that

initially the appellant was placed at Serial No.5 in

the Provisional Merit List issued on 09.12.2011 which

was because of non-submission of proper Certificate

of Experience alongside her application for the post

of APC. Later, when the Certificate of Experience was

submitted, the Merit List was revised and rectified

on 12.09.2012, whereupon she was placed at Serial

No.1.

14

27. Apropos the appellant’s allegations against

Respondents No.4 & 5 to the effect that they were

interested for the appointment of one Dheeraj Singh

Dhakad, learned counsel submitted that in the

Provisional Merit List, he was below the appellant,

which would not have been the case had he been

favoured. It is also submitted that had there been

any malafide intent towards the appellant,

Respondents No.4 & 5 would have rejected her

application on the basis of her submitting an expired

Certificate of Experience, but they chose to give

time to her to submit a proper Certificate, which

would demonstrate that the said respondents did not

harbour any bias against her.

28. Learned counsel summed up by stating that the

judgment impugned was well-considered and needed no

interference under Article 136 of the Constitution.

ANALYSIS, REASONING AND CONCLUSION:

29. Having bestowed our anxious consideration to the

lis, we find that the interference of the Division

Bench with the judgment dated 20.06.2017 of the 15

learned Single Judge, has to be interdicted at our

hands.

30. A bird’s eye views reveals thus. The appellant

topped the revised Merit List, leading to her

appointment as an APC. While serving as such,

complaint(s) against her, in brief, were that she was

not performing her duties, primarily on two counts –

(i) not punctual in attending to her duties, and;

(ii) not correctly reported with regard to the events

in the hostel. As against these, the appellant’s

response, via her replies to the SCNs, is that she,

inter alia, frankly admits to being late on occasion,

but to compensate for her late-coming, she used to

sit till late evening in the office for completion of

work. On this count, the Respondents cannot be

faulted. It is no justification for the appellant to

contend that she was late, but worked late/overtime

such that the work did not suffer. However, as borne

out from the record, with regard to the hostel,

charge was given to her for only 5/6 days. As such,

in our view, it cannot be said that within such a

short period, the appellant, without fully

understanding the attendant issues, could have 16

straightaway given any opinion/report on the hostel.

Be that as it may, this case turns on our findings

infra.

31. Clause 4 of the RGPSM’s General Service

Conditions under the heading

“Resignation/Termination” provides as below:

“Persons working on contract can be terminated with one month notice if found inefficient. In case of persons found indulged in undesirable activities amounting to degradation of dignity of Mission, Mission Director shall reserve right to terminate him/her with immediate effect.” (emphasis supplied)

32. Perusal of Clause 4 makes it clear that

ordinarily, for inefficiency, one month’s notice is

sufficient. The Clause also makes it clear that if

someone is found to have indulged in “undesirable

activities”, the Mission Director was competent to

terminate such person’s services “with immediate

effect”. We are afraid that the Respondents have

placed themselves in a Catch-224 situation. If the

order dated 30.03.2013 falls within the former part

of Clause 4, as contended by the respondent, on the 4 Colloquially, when one is placed in a dilemma due to two contradictory conditions. The phrase was popularized by Joseph Heller’s novel of the same name, first published in 1961.

17

premise that it is a case of termination simpliciter

and non-stigmatic, then one month’s notice was

required to be issued to the appellant, which

admittedly was not done in the instant matter.

Arguendo, were the order dated 30.03.2013 to be seen

as falling under the latter part of Clause 4, it

would be stigmatic, as made clear by the use of the

words “indulged in undesirable activities amounting

to degradation of dignity of Mission”.

33. In either of the above-noted eventualities, the

Impugned Judgment would have to necessarily be set

aside. Nevertheless, let us examine the reasoning of

the Division Bench, which opined that the order is

non-stigmatic and simpliciter non-renewal of

contract. The order dated 30.03.2013 was, quite

obviously, the culmination of the process set into

motion by the two SCNs, which has been overlooked by

the Division Bench. The mere non-mention of the

background situation or the SCNs in the order dated

30.03.2013 cannot, by itself, be determinative of the

nature of the order. As held by this Court in Samsher

Singh v State of Punjab, (1974) 2 SCC 8315 and Anoop 5 “80. …The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may 18 Jaiswal v Government of India, (1984) 2 SCC6, the form

of an order is not its final determinant and the

Court can find out the real reason and true character

behind terminating/removing an employee. Moreover,

the Impugned Judgment also does not deal with Clause

4. Interestingly, this Clause also escaped the

attention of or/and was not brought to the notice of

the learned Single Judge either.

34. It is profitable to refer to what five learned

Judges of this Court laid down in Parshotam Lal

Dhingra v Union of India, 1957 SCC OnLine SC 5:

“28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India [(1953) 1 SCC 420: (1953) SCR 655]. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311 … ” 6 “12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.” 19

punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [(1955) 1 SCR 26]. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v.

Union of India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the 20

contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the 21

Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression “terminate” or “discharge” is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.” (emphasis supplied)

35. We would only be adding to verbosity by

multiplying authorities. In view of the above dictum,

it is clear that the Respondents did not comply with

Clause 4 – either the first part or the second part

thereof. The order dated 30.03.2013 does visit the 22

appellant with evil consequences and would create

hurdles for her re further employment.

36. In view of the discussions made hereinabove, the

Impugned Judgment is quashed and set aside. The

judgment of the learned Single Judge dated 20.06.2017

stands revived, however with a modification to the

extent that the appellant shall be entitled to all

consequential benefits including notional

continuation in service at par with other similarly-

situated employees, but with the back wages

restricted to 50%. Further, in view of the long

passage of time, we deny liberty to the respondents

to proceed afresh against the appellant as was

granted by the learned Single Judge. However, this

will not preclude the respondents from taking action

against the appellant in accordance with law in

futuro apropos her official duties on the post in

question, if the situation so arises. The exercise be

completed within three months from the date of

receipt of this judgment.

23

37. The appeal is allowed and disposed of on the

above terms while leaving the parties to bear their

own expenses.

........................J. [HIMA KOHLI]

.........................J. [AHSANUDDIN AMANULLAH] NEW DELHI AUGUST 22, 2024