Full Judgment Text
1
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
Anita Malhotra
Date: 2024.08.22
16:51:03 IST
Reason:
referred to as the “Impugned Judgment”) passed by the
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was withdrawn from the appellant after 5/6 days of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”)
1
issued by the Respondent No.5 which reads as under :
“ 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
2
Gandhi Prathmik Shiksha Mission (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
3
311(2) 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
4
placed themselves in a Catch-22 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
5
Singh v State of Punjab , (1974) 2 SCC 831 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
6
Jaiswal v Government of India , (1984) 2 SCC , 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