Madhya Pradesh High Court
Mohan Verma vs The State Of Madhya Pradesh on 30 July, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 30th OF JULY, 2026
WRIT PETITION No. 12242 of 2023
DURGA PRASAD VERMA
Versus
THE STATE OF MADHYA PRADESH DEPARTMENT OF GENERAL
ADMINISTRATION AND OTHERS
Appearance:
Shri Prasanna R. Bhatnagar with Shri Akash Sharma, learned counsel
for the petitioner.
Shri Pradhumna Malpani, learned Panel Lawyer for the respondent /
State.
Shri Bhuwan Deshmukh, learned counsel for respondent No.2 /
Municipal Council.
WITH
WRIT PETITION No. 13812 of 2022
RAMAN SOLANKI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Akash Sharma with Shri Avi Suryawanshi, learned counsel for the petitioner.
Shri Pradhumna Malpani, learned Panel Lawyer for the respondent / State.
Shri Bhuwan Deshmukh, learned counsel for respondent No.2 / Municipal
Council.
WRIT PETITION No. 14275 of 2022
NARESH KUMAR PRAJAPATI
Versus
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GENERAL ADMINISTRATION DEPARTMENT AND OTHERS
Appearance:
Shri Akash Sharma with Shri Avi Suryawanshi, learned counsel for the petitioner.
Shri Pradhumna Malpani, learned Panel Lawyer for the respondent / State.
Shri Bhuwan Deshmukh, learned counsel for respondent No.2 / Municipal
Council.
WRIT PETITION No. 12237 of 2023
DALCHAND KUSHWAH
Versus
THE STATE OF MADHYA PRADESH DEPARTMENT OF GENERAL
ADMINISTRATION AND OTHERS
Appearance:
Shri Madhusudan Dwivedi, learned counsel for the petitioner.
Shri Pradhumna Malpani, learned Panel Lawyer for the respondent / State.
Shri Bhuwan Deshmukh, learned counsel for respondent No.2 / Municipal
Council.
WRIT PETITION No. 20633 of 2023
NARESH KUMAR PRAJAPATI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Akash Sharma with Shri Avi Suryawanshi, learned counsel for the petitioner.
Shri Pradhumna Malpani, learned Panel Lawyer for the respondent / State.
Shri Bhuwan Deshmukh, learned counsel for respondent No.2 / Municipal
Council.
WRIT PETITION No. 20761 of 2023
MOHAN VERMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M.A. Mansoori, learned counsel for the petitioner.
Shri Pradhumna Malpani, learned Panel Lawyer for the respondent / State.
Shri Bhuwan Deshmukh, learned counsel for respondent No.3 / Municipal
Council.
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ORDER
Looking to the similitude of the cases, they are being decided by this
common order, wherever required specific reference has been given to the
case.
For the ready reference and sake of convenience, the facts of Durga
Prasad Verma vs. State of Madhya Pradesh (W.P. No.12242/2023) are being
referred to.
2. The petitioner has filed the present petition being aggrieved by the
order dated 08.06.2022 (Annexure P-3), whereby the services of the
petitioner were terminated on the allegation of misconduct.
3. The facts of the case are that the petitioner was appointed on the
post of Computer Operator in the respondent / Municipal Council on daily
wages in the year of 2017. The petitioner has rendered his services
continuously and without any blemish since then till the impugned order was
passed.
3.1 On 27.05.2022, a show-cause notice was issued to the petitioner
calling upon him to explain why disciplinary action should not be taken
against him on the allegation of misconduct. In the notice, the allegation was
the petitioner has fraudulently transferred an amount of Rs.2,00,000/- to the
account of Smt. Jasmati Bai wife of late Shri Kailash Prajapati.
3.2 The petitioner submitted his reply to the show-cause notice on
30.05.2022. Thereafter, his services were terminated v i d e order dated
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08.06.2022. However, before passing the order of termination, no
opportunity of hearing was given to the petitioner.
3.3 Subsequent to the termination of his services, the petitioner filed
representation on 24.04.2023, reiterating that he had been removed from
service on the basis of false allegation. He, therefore, prayed that he be
reinstated in service.
3.4 In all the cases similar facts are there. Notice was given and then
impugned order was passed.
4. Learned counsel for the petitioner submits that the services of the
petitioner have been terminated without providing him proper opportunity of
hearing. It is contended that though purported inquiry was conducted by the
respondent / Municipal Council, the same was held behind the back of the
petitioner. He further submits that neither the inquiry report was provided to
the petitioner nor was he called to participate in the inquiry proceedings.
Thus, the order terminating the service of the petitioner has been passed
without holding proper inquiry and is in clear violation of the principles of
natural justice.
4.1 Learned counsel submits that it has already been settled in several
judgments of this Court, in case of termination of a contractual employee for
some misconduct the same cannot be termed as a termination simpliciter, he
refers to the case of Jitendra vs. State of Madhya Pradesh and Others in 2008
(4) MPLJ 670 and in the case of Rahul Tripathi vs. Rajeev Gandhi Shiksha
Mission, Bhopal and Others in 2001 (3) MPLJ 616 , wherein it has been held
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that even employee working temporarily is entitled for fair opportunity of
hearing, where the order of termination is stigmatic in nature.
4.2 Learned counsel for the petitioner has further relied on the
judgment of the Hon’ble Division Bench of this Court dated 11.09.2024
passed in W.A. No.1443/2024 (The State of Madhya Pradesh and Others vs.
Smt. Sumitra Makwana). He also relied order dated 18.01.2024 passed by
this Court in W.P. No.17573/2020 (Smt. Sumitra Makwana vs. Panchayat
and Rural Development Department and Another).
4.3 Learned counsel submits that in view of the above facts and the
settled position of law, the impugned order terminating the services of the
petitioner is not sustainable in the eyes of law.
5. Per contra, learned counsel for the respondent / Municipal Council
submits that all the petitioners (in present and all connected cases) have been
given due opportunity of hearing. He points out that the petitioner himself
has enclosed Annexure P-1, which is the show-cause notice issued to him.
The petitioner has also filed his reply to the said show-cause notice as
Annexure P-2. Thus, it cannot be contended that the petitioner was not given
any opportunity of hearing.
5.1 Learned counsel further submits that it is also incorrect to contend
that the Inquiry Committee did not give opportunity of hearing to the
petitioner while conducting the inquiry. According to him, the committee
had issued notice to the petitioner and after hearing him, filed its report,
pursuant to which the impugned order came to be passed.
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5.2 Lastly, he submits that the present case involves several disputed
questions of fact, therefore writ petition is not the proper remedy, the
petitioner being daily-wager employee, the proper forum for him is to
approach the labour Court.
6. Heard learned counsel for the parties and perused the case file.
7. The inquiry report filed by the respondent Municipality shows that
the Inquiry Committee recorded certain findings, however, a perusal of the
record of the inquiry, produced by the learned counsel for the Municipality,
shows that the Inquiry Committee did not call the petitioner for affording
him opportunity of hearing. Not only this, the inquiry report was never
provided to the petitioner nor was he given opportunity to submit his
explanation thereto. It is thus clear that the petitioner was not given proper
opportunity of hearing.
8. It is a settled position of law that providing opportunity of hearing is
not an empty formality. Mere issuance of show-cause notice mentioning the
allegations and then passing of order, would not suffice, where the
respondents have conducted inquiry and the Inquiry committee has recorded
findings against the petitioner, it is imperative that a copy of the inquiry
report be provided to the delinquent so as to enable him to submit his
explanation against the findings of the report.
9. Now, in view of the above facts regarding inquiry if we see the
order of termination, then it will come to the fore that in view of the
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allegations incorporated in the same, it casts an stigma on the petitioner, thus
it will affect the future prospects of the petitioner/employee. In view of the
same, in all fairness, it was incumbent upon the respondent / Municipal
Council to hold a proper inquiry, provide copy of the inquiry report to the
petitioner and thereafter give him opportunity to explain the findings
recorded by the Inquiry Committee before passing the impugned order.
10. Here, we have to keep in mind that the impugned order is not an
order of termination of service simpliciter, but it declares the misconduct of the
petitioner by referring to allegations against him, thus it is clearly a stigmatic
order. The Hon’ble Apex Court in the case of Chandra Prakash Shahi v. State of
U.P., (2000) 5 SCC 152, held in paras 12 and 28 as under:
12. Now, it is well settled that the temporary government servants
or probationers are as much entitled to the protection of Article
311(2) of the Constitution as the permanent employees despite the
fact that temporary government servants have no right to hold the
post and their services are liable to be terminated at any time by
giving them a month’s notice without assigning any reason either
in terms of the contract of service or under the relevant statutory
rules regulating the terms and conditions of such service. The
courts can, therefore, lift the veil of an innocuously-worded order
to look at the real face of the order and to find out whether it is as
innocent as worded. (See: Parshotam Lal Dhingra v. Union of
India [AIR 1958 SC 36 : 1958 SCR 828] .) It was explained in this
decision that inefficiency, negligence or misconduct may have
been the factors for inducing the Government to terminate the
services of a temporary employee under the terms of the contract
or under the statutory Service Rules regulating the terms and
conditions of service which, to put it differently, may have been
the motive for terminating the services but the motive by itself
does not make the order punitive unless the order was “founded”
on those factors or other disqualifications.
28. The important principles which are deducible on the concept
of “motive” and “foundation”, concerning a probationer, are that a
probationer has no right to hold the post and his services can be
terminated at any time during or at the end of the period of
probation on account of general unsuitability for the post in
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for the post in question or for his further retention in service or for
confirmation, an inquiry is held and it is on the basis of that
inquiry that a decision is taken to terminate his service, the order
will not be punitive in nature. But, if there are allegations of
misconduct and an inquiry is held to find out the truth of that
misconduct and an order terminating the service is passed on the
basis of that inquiry, the order would be punitive in nature as the
inquiry was held not for assessing the general suitability of the
employee for the post in question, but to find out the truth of
allegations of misconduct against that employee. In this situation,
the order would be founded on misconduct and it will not be a
mere matter of “motive”.
11. The Hon’ble Apex Court in the case of Radhey Shyam Gupta v.
U.P. State Agro Industries Corpn. Ltd. , (1999) 2 SCC 21 held in paras 26
and 33 as under:
26. If there was any difficulty as to what was “motive” or
“foundation” even after Samsher Singh case [(1974) 2 SCC 831 :
1974 SCC (L&S) 550] the said doubts, in our opinion, were
removed in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes
Mazdoor Sabha [(1980) 2 SCC 593 : 1980 SCC (L&S) 197] again
by Krishna Iyer, J. No doubt, it is a labour matter but the
distinction so far as what is “motive” or “foundation” is common
to labour cases and cases of employees in the government or the
public sector. The learned Judge again referred to the criticism by
Shri Tripathi in this branch of law as to what was “motive” or
what was “foundation”, a criticism to which reference was made
in Samsher Singh case [(1974) 2 SCC 831 : 1974 SCC (L&S) 550]
. The clarification given by the learned Judge is, in our opinion,
very instructive. It reads as follows: (SCC pp. 617-18, paras 53-
54)
“53. Masters and servants cannot be permitted to play hide
and seek with the law of dismissals and the plain and proper
criteria are not to be misdirected by terminological cover-ups
or by appeal to psychic processes but must be grounded on
the substantive reason for the order, whether disclosed or
undisclosed. The Court will find out from other proceedings
or documents connected with the formal order of termination
what the true ground for the termination is. If, thus
scrutinised, the order has a punitive flavour in cause or
consequence, it is dismissal. If it falls short of this test, it
cannot be called a punishment. To put it slightly differently,
a termination effected because the master is satisfied of the
misconduct and of the consequent desirability of terminating
the service of the delinquent servant, is a dismissal, even if he
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the standing order or otherwise. Whether, in such a case the
grounds are recorded in a different proceeding from the
formal order does not detract from its nature. Nor the fact
that, after being satisfied of the guilt, the master abandons the
enquiry and proceeds to terminate. Given an alleged
misconduct and a live nexus between it and the termination
of service the conclusion is dismissal, even if full benefits as
on simple termination, are given and non-injurious
terminology is used.
54. On the contrary, even if there is suspicion of misconduct
the master may say that he does not wish to bother about it
and may not go into his guilt but may feel like not keeping a
man he is not happy with. He may not like to investigate nor
take the risk of continuing a dubious servant. Then it is not
dismissal but termination simpliciter, if no injurious record of
reasons or punitive pecuniary cut-back on his full terminal
benefits is found. For, in fact, misconduct is not then the
moving factor in the discharge. We need not chase other
hypothetical situations here.”
33. It will be noticed from the above decisions that the termination
of the services of a temporary servant or one on probation, on the
basis of adverse entries or on the basis of an assessment that his
work is not satisfactory will not be punitive inasmuch as the above
facts are merely the motive and not the foundation. The reason
why they are the motive is that the assessment is not done with the
object of finding out any misconduct on the part of the officer, as
stated by Shah, J. (as he then was) in Ram Narayan Das case [AIR
1961 SC 177 : (1961) 1 SCR 606 : (1961) 1 LLJ 552] . It is done
only with a view to decide whether he is to be retained or
continued in service. The position is not different even if a
preliminary enquiry is held because the purpose of a preliminary
enquiry is to find out if there is prima facie evidence or material to
initiate a regular departmental enquiry. It has been so decided
in Champaklal case [AIR 1964 SC 1854 : (1964) 1 LLJ 752] . The
purpose of the preliminary enquiry is not to find out misconduct
on the part of the officer and if a termination follows without
giving an opportunity, it will not be bad. Even in a case where a
regular departmental enquiry is started, a charge-memo issued,
reply obtained, and an enquiry officer is appointed — if at that
point of time, the enquiry is dropped and a simple notice of
termination is passed, the same will not be punitive because the
enquiry officer has not recorded evidence nor given any findings
on the charges. That is what is held in Sukh Raj Bahadur
case [AIR 1968 SC 1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373]
and in Benjamin case [(1967) 1 LLJ 718 (SC)] . In the latter case,
the departmental enquiry was stopped because the employer was
not sure of establishing the guilt of the employee. In all these
cases, the allegations against the employee merely raised
a cloud on his conduct and as pointed by Krishna Iyer, J.
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in Gujarat Steel Tubes case [(1980) 2 SCC 593 : 1980 SCC (L&S)
197] the employer was entitled to say that he would not continue
an employee against whom allegations were made the truth of
which the employer was not interested to ascertain. In fact, the
employer by opting to pass a simple order of termination as
permitted by the terms of appointment or as permitted by the rules
was conferring a benefit on the employee by passing a simple
order of termination so that the employee would not suffer from
any stigma which would attach to the rest of his career if a
dismissal or other punitive order was passed. The above are all
examples where the allegations whose truth has not been found,
and were merely the motive.
12. The Hon’ble Apex Court in the case of Hari Ram Maurya v. Union
of India, (2006) 9 SCC 167, held in para 3 as under :
3. From the order of termination Annexure P-7, it appears that the
same refers to the show-cause notice dated 20-8-2002 which is to
be found at Annexure P-5. It is stated therein that the appellant
demanded kickback with a view to help the complainant to get a
favourable order in the pension matter. That being so, there was a
clear charge of bribery levelled against the appellant. No doubt,
the appellant was a temporary employee, but if he is sought to be
removed on the ground that he was guilty of the charge of bribery,
it becomes necessary for the respondent Union of India to hold an
inquiry and thereafter to act in accordance with law. In this case,
admittedly, no inquiry was conducted, and that is obvious even
from Annexure P-7, the letter described as disengagement of
casual labour. We, therefore, allow this appeal and set aside the
order of the High Court as also the order of termination Annexure
P-7 dated 30-9-2002. This, however, will not prevent the
respondents from taking action in accordance with law.
13. The Hon’ble Apex Court in the case of State of U.P. v. Saroj
Kumar Sinha, (2010) 2 SCC 772, held in paras 28 to 36 and 39 as under :
28. An inquiry officer acting in a quasi-judicial authority is in the
position of an independent adjudicator. He is not supposed to be a
representative of the department/disciplinary
authority/Government. His function is to examine the evidence
presented by the Department, even in the absence of the
delinquent official to see as to whether the unrebutted evidence is
sufficient to hold that the charges are proved. In the present case
the aforesaid procedure has not been observed. Since no oral
evidence has been examined the documents have not been proved,
and could not have been taken into consideration to conclude that
the charges have been proved against the respondents.
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29. Apart from the above, by virtue of Article 311(2) of the
Constitution of India the departmental enquiry had to be
conducted in accordance with the rules of natural justice. It is a
basic requirement of the rules of natural justice that an employee
be given a reasonable opportunity of being heard in any
proceedings which may culminate in punishment being imposed
on the employee.
30. When a departmental enquiry is conducted against the
government servant it cannot be treated as a casual exercise. The
enquiry proceedings also cannot be conducted with a closed mind.
The inquiry officer has to be wholly unbiased. The rules of natural
justice are required to be observed to ensure not only that justice is
done but is manifestly seen to be done. The object of rules of
natural justice is to ensure that a government servant is treated
fairly in proceedings which may culminate in imposition of
punishment including dismissal/removal from service.
31. In Shaughnessy v. United States [97 L Ed 956 : 345 US 206
(1952)] (Jackson, J.), a Judge of the United States Supreme Court
has said: (L Ed p. 969)
“… Procedural fairness and regularity are of the
indispensable essence of liberty. Severe substantive laws can
be endured if they are fairly and impartially applied.”
32. The affect of non-disclosure of relevant documents has been
stated in Judicial Review of Administrative Action by De Smith,
Woolf and Jowell, 5th Edn., p. 442 as follows : “If relevant
evidential material is not disclosed at all to a party who is
potentially prejudiced by it, there is prima facie unfairness,
irrespective of whether the material in question arose before,
during or after the hearing. This proposition can be illustrated by a
large number of modern cases involving the use of undisclosed
reports by administrative tribunals and other adjudicating bodies.
If the deciding body is or has the trappings of a judicial tribunal
and receives or appears to receive evidence ex parte which is not
fully disclosed, or holds ex parte inspections during the course or
after the conclusion of the hearing, the case for setting the decision
aside is obviously very strong; the maxim that justice must be seen
to be done can readily be invoked.”
In our opinion the aforesaid maxim is fully applicable in the facts
and circumstances of this case.
33. As noticed earlier in the present case not only the respondent
has been denied access to documents sought to be relied upon
against him, but he has been condemned unheard as the inquiry
officer failed to fix any date for conduct of the enquiry. In other
words, not a single witness has been examined in support of the
charges levelled against the respondent. The High Court,
therefore, has rightly observed that the entire proceedings are
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vitiated having been conducted in complete violation of the
principles of natural justice and total disregard of fair play. The
respondent never had any opportunity at any stage of the
proceedings to offer an explanation against the allegations made
in the charge-sheet.
34. This Court in Kashinath Dikshita v. Union of India [(1986) 3
SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , had
clearly stated the rationale for the rule requiring supply of copies
of the documents, sought to be relied upon by the authorities to
prove the charges levelled against a government servant. In that
case the enquiry proceedings had been challenged on the ground
that non-supply of the statements of the witnesses and copies of
the documents had resulted in the breach of rules of natural
justice. The appellant therein had requested for supply of the
copies of the documents as well as the statements of the witnesses
at the preliminary enquiry. The request made by the appellant was
in terms turned down by the disciplinary authority.
35. In considering the importance of access to documents in
statements of witnesses to meet the charges in an effective manner
this Court observed as follows: (Kashinath Dikshita case [(1986) 3
SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , SCC pp.
234-35, para 10)
“10. … When a government servant is facing a disciplinary
proceeding, he is entitled to be afforded a reasonable
opportunity to meet the charges against him in an effective
manner. And no one facing a departmental enquiry can
effectively meet the charges unless the copies of the relevant
statements and documents to be used against him are made
available to him. In the absence of such copies, how can the
employee concerned prepare his defence, cross-examine the
witnesses, and point out the inconsistencies with a view to
show that the allegations are incredible? It is difficult to
comprehend why the disciplinary authority assumed an
intransigent posture and refused to furnish the copies
notwithstanding the specific request made by the appellant in
this behalf. Perhaps the disciplinary authority made it a
prestige issue. If only the disciplinary authority had asked
itself the question: ‘What is the harm in making available the
material?’ and weighed the pros and cons, the disciplinary
authority could not reasonably have adopted such a rigid and
adamant attitude. On the one hand there was the risk of the
time and effort invested in the departmental enquiry being
wasted if the courts came to the conclusion that failure to
supply these materials would be tantamount to denial of
reasonable opportunity to the appellant to defend himself. On
the other hand by making available the copies of the
documents and statements the disciplinary authority was not
running any risk. There was nothing confidential or
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privileged in it.”
36. On an examination of the facts in that case, the submission on
behalf of the authority that no prejudice had been caused to the
appellant, was rejected, with the following observations:
(Kashinath Dikshita case [(1986) 3 SCC 229 : 1986 SCC (L&S)
502 : (1986) 1 ATC 176] , SCC p. 236, para 12)
“12. Be that as it may, even without going into minute details
it is evident that the appellant was entitled to have an access
to the documents and statements throughout the course of the
inquiry. He would have needed these documents and
statements in order to cross-examine the 38 witnesses who
were produced at the inquiry to establish the charges against
him. So also at the time of arguments, he would have needed
the copies of the documents. So also he would have needed
the copies of the documents to enable him to effectively
cross-examine the witnesses with reference to the contents of
the documents. It is obvious that he could not have done so if
copies had not been made available to him. Taking an overall
view of the matter we have no doubt in our mind that the
appellant has been denied a reasonable opportunity of
exonerating himself.”
39. The proposition of law that a government employee facing a
departmental enquiry is entitled to all the relevant statements,
documents and other materials to enable him to have a reasonable
opportunity to defend himself in the departmental enquiry against
the charges is too well established to need any further reiteration.
Nevertheless given the facts of this case we may re-emphasise the
law as stated by this Court in State of Punjab v. Bhagat
Ram [(1975) 1 SCC 155 : 1975 SCC (L&S) 18] : (SCC p. 156,
paras 6-8)
“6. The State contended that the respondent was not entitled
to get copies of statements. The reasoning of the State was
that the respondent was given the opportunity to cross-
examine the witnesses and during the cross-examination the
respondent would have the opportunity of confronting the
witnesses with the statements. It is contended that the
synopsis was adequate to acquaint the respondent with the
gist of the evidence.
7. The meaning of a reasonable opportunity of showing cause
against the action proposed to be taken is that the government
servant is afforded a reasonable opportunity to defend
himself against charges on which inquiry is held. The
government servant should be given an opportunity to deny
his guilt and establish his innocence. He can do so when he is
told what the charges against him are. He can do so by cross-
examining the witnesses produced against him. The object of
supplying statements is that the government servant will be
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able to refer to the previous statements of the witnesses
proposed to be examined against the government servant.
Unless the statements are given to the government servant he
will not be able to have an effective and useful cross-
examination.
8. It is unjust and unfair to deny the government servant
copies of statements of witnesses examined during
investigation and produced at the inquiry in support of the
charges levelled against the government servant. A synopsis
does not satisfy the requirements of giving the government
servant a reasonable opportunity of showing cause against
the action proposed to be taken.”
14. The Hon’ble Supreme Court in the case of Canara Bank v. Debasis
Das, (2003) 4 SCC 557 , held in paras 13 to 16, 19, 21 and 24 as under :
13. Natural justice is another name for common-sense justice.
Rules of natural justice are not codified canons. But they are
principles ingrained into the conscience of man. Natural justice is
the administration of justice in a common-sense liberal way.
Justice is based substantially on natural ideals and human values.
The administration of justice is to be freed from the narrow and
restricted considerations which are usually associated with a
formulated law involving linguistic technicalities and grammatical
niceties. It is the substance of justice which has to determine its
form.
14. The expressions “natural justice” and “legal justice” do not
present a watertight classification. It is the substance of justice
which is to be secured by both, and whenever legal justice fails to
achieve this solemn purpose, natural justice is called in aid of legal
justice. Natural justice relieves legal justice from unnecessary
technicality, grammatical pedantry or logical prevarication. It
supplies the omissions of a formulated law. As Lord Buckmaster
said, no form or procedure should ever be permitted to exclude the
presentation of a litigant’s defence.
15. The adherence to principles of natural justice as recognized by
all civilized States is of supreme importance when a quasi-judicial
body embarks on determining disputes between the parties, or any
administrative action involving civil consequences is in issue.
These principles are well settled. The first and foremost principle
is what is commonly known as audi alteram partem rule. It says
that no one should be condemned unheard. Notice is the first limb
of this principle. It must be precise and unambiguous. It should
apprise the party determinatively of the case he has to meet. Time
given for the purpose should be adequate so as to enable him to
make his representation. In the absence of a notice of the kind and
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such reasonable opportunity, the order passed becomes wholly
vitiated. Thus, it is but essential that a party should be put on
notice of the case before any adverse order is passed against him.
This is one of the most important principles of natural justice. It is
after all an approved rule of fair play. The concept has gained
significance and shades with time. When the historic document
was made at Runnymede in 1215, the first statutory recognition of
this principle found its way into the “Magna Carta”. The classic
exposition of Sir Edward Coke of natural justice requires to
“vocate, interrogate and adjudicate”. In the celebrated case
of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414 :
14 CBNS 180 : (1861-73) All ER Rep Ext 1554] the principle was
thus stated : (ER p. 420)
“[E]ven God himself did not pass sentence upon Adam
before he was called upon to make his defence. ‘Adam’ (says
God), ‘where art thou? Hast thou not eaten of the tree
whereof, I commanded thee that thou shouldest not eat?’ ”
Since then the principle has been chiselled, honed and
refined, enriching its content. Judicial treatment has added
light and luminosity to the concept, like polishing of a
diamond.
16. Principles of natural justice are those rules which have been
laid down by the courts as being the minimum protection of the
rights of the individual against the arbitrary procedure that may be
adopted by a judicial, quasi-judicial and administrative authority
while making an order affecting those rights. These rules are
intended to prevent such authority from doing injustice.
19. Concept of natural justice has undergone a great deal of
change in recent years. Rules of natural justice are not rules
embodied always expressly in a statute or in rules framed
thereunder. They may be implied from the nature of the duty to be
performed under a statute. What particular rule of natural justice
should be implied and what its context should be in a given case
must depend to a great extent on the facts and circumstances of
that case, the framework of the statute under which the enquiry is
held. The old distinction between a judicial act and an
administrative act has withered away. Even an administrative
order which involves civil consequences must be consistent with
the rules of natural justice. The expression “civil consequences”
encompasses infraction of not merely property or personal rights
but of civil liberties, material deprivations and non-pecuniary
damages. In its wide umbrella comes everything that affects a
citizen in his civil life.
21. How then have the principles of natural justice been
interpreted in the courts and within what limits are they to be
confined? Over the years by a process of judicial interpretation
two rules have been evolved as representing the principles of
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natural justice in judicial process, including therein quasi-judicial
and administrative process. They constitute the basic elements of a
fair hearing, having their roots in the innate sense of man for fair
play and justice which is not the preserve of any particular race or
country but is shared in common by all men. The first rule is
“nemo judex in causa sua” or “nemo debet esse judex in propria
causa sua” as stated in Earl of Derby’s case [(1605) 12 Co Rep 114
: 77 ER 1390] that is, “no man shall be a judge in his own cause”.
Coke used the form “aliquis non debet esse judex in propria causa,
quia non potest esse judex et pars” (Co. Litt. 1418), that is, “no
man ought to be a judge in his own case, because he cannot act as
judge and at the same time be a party”. The form “nemo potest
esse simul actor et judex”, that is, “no one can be at once suitor
and judge” is also at times used. The second rule is “audi alteram
partem”, that is, “hear the other side”. At times and particularly in
continental countries, the form “audietur et altera pars” is used,
meaning very much the same thing. A corollary has been deduced
from the above two rules and particularly the audi alteram partem
rule, namely “qui aliquid statuerit, parte inaudita altera acquum
licet dixerit, haud acquum fecerit” that is, “he who shall decide
anything without the other side having been heard, although he
may have said what is right, will not have been what is right”
[see Boswel’s case [(1605) 6 Co Rep 48b : 77 ER 326] (Co Rep at
p. 52-a)] or in other words, as it is now expressed, “justice should
not only be done but should manifestly be seen to be done”.
Whenever an order is struck down as invalid being in violation of
principles of natural justice, there is no final decision of the case
and fresh proceedings are left upon (sic open). All that is done is
to vacate the order assailed by virtue of its inherent defect, but the
proceedings are not terminated.
24. Additionally, there was no material placed by the employee to
show as to how he has been prejudiced. Though in all cases the
post-decisional hearing cannot be a substitute for pre-decisional
hearing, in the case at hand the position is different. The position
was illuminatingly stated by this Court in Managing Director,
ECIL v. B. Karunakar [Managing Director, ECIL v. B. Karunakar,
(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704]
(SCC at p. 758, para 31) which reads as follows:
“31. Hence, in all cases where the enquiry officer’s report is
not furnished to the delinquent employee in the disciplinary
proceedings, the courts and tribunals should cause the copy
of the report to be furnished to the aggrieved employee if he
has not already secured it before coming to the court/tribunal
and give the employee an opportunity to show how his or her
case was prejudiced because of the non-supply of the report.
If after hearing the parties, the court/tribunal comes to the
conclusion that the non-supply of the report would have
made no difference to the ultimate findings and the
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the order of punishment. The court/tribunal should not
mechanically set aside the order of punishment on the ground
that the report was not furnished as is regrettably being done
at present. The courts should avoid resorting to short cuts.
Since it is the courts/tribunals which will apply their judicial
mind to the question and give their reasons for setting aside
or not setting aside the order of punishment, (and not any
internal appellate or revisional authority), there would be
neither a breach of the principles of natural justice nor a
denial of the reasonable opportunity. It is only if the
court/tribunal finds that the furnishing of the report would
have made a difference to the result in the case that it should
set aside the order of punishment. Where after following the
above procedure, the court/tribunal sets aside the order of
punishment, the proper relief that should be granted is to
direct reinstatement of the employee with liberty to the
authority/management to proceed with the inquiry, by
placing the employee under suspension and continuing the
inquiry from the state of furnishing him with the report. The
question whether the employee would be entitled to the back
wages and other benefits from the date of his dismissal to the
date of his reinstatement if ultimately ordered, should
invariably be left to be decided by the authority concerned
according to law, after the culmination of the proceedings
and depending on the final outcome. If the employee
succeeds in the fresh inquiry and is directed to be reinstated,
the authority should be at liberty to decide according to law
how it will treat the period from the date of dismissal till the
reinstatement and to what benefits, if any and the extent of
the benefits, he will be entitled. The reinstatement made as a
result of the setting aside of the inquiry for failure to furnish
the report, should be treated as a reinstatement for the
purpose of holding the fresh inquiry from the stage of
furnishing the report and no more, where such fresh inquiry
is held. That will also be the correct position in law.”
15. This court in the case of Yatish Pandey Vs. Commissioner, Indore
Municipal Corporation Indore (W.P. No.20178/2017) , which was a case of a
daily wager held as under:
In light of the aforesaid, as it can be safely gathered that the
respondent has violated principle of natural justice and fair play,
the impugned termination order, which is stigmatic dated
21.03.2017 deserves to be set aside and is accordingly set aside.
The respondent is directed to reinstate the petitioner forthwith in
service.
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16. In view of the above settled position of law it is clear that even a
temporary employee is entitled to fair hearing if his services are being
terminated by a stigmatic order.
17. As far as the issue of petitioner being a daily wager having no right to
hold the post is concerned, there is a vast difference between claiming an
indefeasible right to hold the post and raising grievance against an stigmatic
order of termination on the ground that it has been passed in violation of the
principles of natural justice. Had it been the case, where the employer would
have passed order of termination simpliciter on the ground that the services
of the petitioner are no more needed, then the respondent municipality could
have raised this ground, but when the termination is stigmatic i.e. it is
removal on certain charges of misconduct, then even the daily wager has
right to fair hearing before passing the order of his removal. This is for the
reason that an order of termination based on misconduct has an adverse civil
consequence against the petitioner, this may become an impediment for him
to secure employment elsewhere.
18. The last submission raised by the learned counsel for the respondent
Municipality is that the petition(s) involve(s) several disputed facts and
petitioner(s) being daily wagers they should have gone before the Labour
Court. This submission of the learned counsel is without any substance for
the reason that the petitioner(s) have come before this court with a case that
they are working in the respondent municipality since long and they have not
been given proper opportunity of hearing before terminating their services.
As such, what has been urged before this court is once of the main tenets of
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administrative law. This court can always decide the issue that while
terminating services of an employee(s), whether the employer has given
him/them fair hearing or not, this enquiry cannot be termed as disputed facts,
and on this ground petition cannot be refused to be entertained.
19. As the impugned order(s) in the present case(s) does not satisfy the
test of abiding by the principles of natural justice, the impugned order dated
08.06.2022 (Annexure P-3) is hereby quashed. The termination orders in all
the petitions are hereby quashed. As a consequence of the quashing of the
order terminating the services of the petitioner, the respondents are directed
to forthwith reinstate the petitioner in service with all consequential benefits
including arrears of back wages. However, the petitioner shall be entitled to
only 50% of the back wages. The reinstatement order is being passed
keeping in view the fact that the respondent municipality has not claimed
that the services of the petitioner(s) are not needed but they have been
removed on disciplinary grounds, and this court has found that the removal is
not in accordance with the principles of natural justice.
20. In view of the fact that the present petitions have been allowed on
the technical ground that the impugned order was passed in violation of the
principles of natural justice, thus, the respondent / Municipal Council is
given liberty to pass fresh orders after following the principles of natural
justice in holding the inquiry on the charges against the petitioner.
In W.P. No.12237/2023 :
In the present writ petition, the petitioner has raised additional ground.
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It is submitted that even perusal of the findings recorded in the inquiry report
reveals that the petitioner has been exonerated by the Inquiry Committee.
Thus, there were in fact no allegations against the petitioner. Despite the
same, his services have been terminated by the impugned order, which
shows complete non-application of mind on the part of the respondents.
Thus, in view of the above, in the case of the present petitioner, this
aspect has also to be taken into account by the respondents whether in view
of the exoneration of the petitioner, fresh action is required to be taken or
not.
In W.P. Nos.20761/2023 and 20633/2023 :
Learned counsel for the petitioners submits that in these cases, the
services of the petitioners have not been terminated. However, on the basis
of the inquiry report, which is the subject matter of consideration in the
aforesaid writ petitions, the Municipal Council has sent communications to
the concerned concerned police station for registration of FIR against the
petitioners.
Considering that this Court has come to the conclusion that the
findings recorded by the Inquiry Committee are in breach of the principles of
natural justice in as much as the petitioners were not given opportunity to
explain the allegations against them, the communications sent by the
respondent / Municipal Council vide letter dated 16.06.2023 (in both the writ
petitions) are also hereby quashed. However, liberty is given to the
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with the law after following the principles of natural justice.
With the aforesaid, the present petitions stand allowed.
Certified copy as per rules.
(PAVAN KUMAR DWIVEDI)
JUDGE
Anushree
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PANDEY
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