Madhya Pradesh High Court
The National Health Mission vs Smt. Richa Saxena on 7 January, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7th OF JANUARY, 2025
WRIT APPEAL NO. 2541 of 2024
THE NATIONAL HEALTH MISSION
Vs.
SMT. RICHA SAXENA
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APPEARANCE:
Shri Sankalp Sharma - Advocate for the appellant.
Shri D.P. Singh - Advocate for the respondent.
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JUDGMENT
Per: Justice Anand Pathak
1. The present appeal under Section 2 (1) of the Madhya Pradesh
Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005
is preferred by the appellant/respondent No.2 being crestfallen by
the order dated 20-07-2024 passed by learned Single Judge in Writ
Petition No.15348 of 2024 whereby the writ petition filed by the
respondent (hereinafter referred to as “the petitioner”) has been
allowed.
2. Precisely stated facts of the case are that the petitioner was
appointed as Family Planning Counselor on contract basis in 2007
and thereafter the said post was given the nomenclature as Block
Community Mobilizer on which petitioner was again appointed on
contract basis on 19-08-2021. Contract period of petitioner was
2
extended by the appellant from time to time. A show cause notice
dated 22-03-2024 was issued to the petitioner indicating lapses
occurred in discharge of duties and poor performance of duties by
the petitioner. Petitioner replied to the same on 05-04-2024
explaining all the allegations levelled against her. Finding the reply
of the petitioner unsatisfactory, the appellant terminated the
contractual services of petitioner. Being aggrieved by the same,
petitioner approached learned writ Court. Learned Writ Court
allowed the said writ petition setting aside the impugned order of
termination of petitioner with liberty to competent authority to
proceed in accordance with law after holding an enquiry in the
matter. Being aggrieved by the order of the writ Court, National
Health Mission (respondent No.2 in writ petition) approached this
Court by filing the instant writ appeal.
3. Learned counsel for the appellant refers the Contractual Human
Resources Manual, 2021 of National Health Mission as well as its
clauses. According to the said Manual, in case of any misconduct,
involvement in financial irregularities, involvement in criminal act or
involvement in any act which undermines the image of National
Health Mission, oral or written opportunity of hearing would be
given to the employee and in case of non-reply or non-satisfactory
reply, appointing authority can terminate the contract of the
employee. Since petitioner was a contractual employee and her non
performance of duty and nonchalance behaviour given bad impact on
the image of National Health Mission, therefore, being an employer,
the National Health Mission has right to terminate the contract of the
petitioner.
4. It is further submitted that since the work of petitioner was not found
3
satisfactory and despite warning, she did not improve her working,
therefore, her services were terminated by the appellant. First
petitioner was given show cause notice and since reply of the
petitioner was not found to be satisfactory, therefore, her services
were terminated by the appellant by passing a speaking order
clarifying each and every lapse of petitioner. Therefore, it is not a
case where order of termination has been passed without affording
opportunity of hearing to the petitioner. Learned Writ Court erred in
passing the impugned order without considering material aspect of
the matter that the termination of petitioner was based on her work
performance and it was passed after giving show cause notice to her.
Thus, prayed for setting aside the impugned order.
5. Per contra, learned counsel for the respondent (petitioner in writ
petition) opposed the submission and while supporting the order
passed by learned Writ Court submits that since the order of
termination of petitioner was stigmatic in nature therefore, proper
opportunity of hearing was required to be given by the appellant
before passing the order of her removal from services. Petitioner was
never afforded adequate opportunity of hearing by the appellant,
therefore, caused illegality. Reliance has been placed over the
judgment of Apex Court in the case of Krushnakant B. Parmar Vs.
Union of India & Anr. (2012) 2 Supreme 254 and this Court in the
case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission,
Bhopal, 2001 (3) MPLJ 616.
6. Learned counsel for the petitioner further submits that in similar
matter when services of an employee were terminated, his
termination order was set aside by the Coordinate Bench of this
Court at Indore in the case of The Mission Director, National
4
Health Mission, Bhopal Vs. Mukesh Yadav and others, 2011 (4)
MPHT 266. Thus, prayed for dismissal of this appeal.
7. Heard the learned counsel for the parties at length and perused the
record.
8. This is the case where appellant has called in question the order
passed by learned Writ Court whereby the termination order of the
petitioner (a contractual employee) has been set aside on the ground
of non affording the proper opportunity of hearing to her.
9. The Hon’ble Apex Court has given guidance from time to time in
relation to Rule of Natural Justice. The Hon’ble Apex Court in the
matter of Poonam Vs. State of Uttar Pradesh and others, (2016) 2
SCC 779 held that principle of Audi Alteram Partem has its own
sanctity but the said principle of natural justice is not always put in
straitjacket formula. That apart, a person or an authority must have a
legal right or right in law to defend or assail. Natural justice is not an
unruly horse. Its applicability has to be adjudged regard being had to
the effect and impact of the order and the person who claims to be
affected and that is where the concept of necessary party becomes
significant. This aspect has also been taken care of by Division
Bench of this Court {See: Vikas Gupta Vs. Smt. Merra Singh and
others, 2007(2) EFR 46}.
10. The concept of principle of Natural Justice or audi alteram partem
doctrine although is required to be complied with but at the same
time it has some exceptions. In catena of judgments including the
judgment rendered in A.P. Social Welfare Residential Educational
Institutions Vs. Pindiga Sridhar, (2007) 13 SCC 352, Haryana
Financial Corpn. Vs. Kailash Chandra Ahuja, (2008) 9 SCC 31,
State of Chhattisgarh Vs. Dhirjo Kumar Senger, (2009) 13 SCC
5
600, Indu Bhushan Dwivedi Vs. State of Jharkhand, (2010) 11
SCC 278, Natwar Singh Vs. Director of Enforcement, (2010) 13
SCC 255 and Dharampal Satyapal Ltd. Vs. Deputy Commissioner
of Central Excise, Gauhati and Ors, (2015) 8 SCC 519, all
discussed in detail on the different facets of said doctrine of Audi
Alteram Partem, Principle of Natural Justice/Opportunity of Hearing
quotient and discussed the exceptions also in detail. In Natwar Singh
(Supra), Supreme Court held in following words:-
“26. Even in the application of the doctrine of fair
play there must be real flexibility. There must also
have been caused some real prejudice to the
complainant; there is no such thing as a merely
technical infringement of natural justice. The
requirements of natural justice must depend on
the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is
acting, the subject matter to be dealt with and so
forth. Can the Courts supplement the statutory
procedures with requirements over and above those
specified? In order to ensure a fair hearing, Courts
can insist and require additional steps as long as
such steps would not frustrate the apparent purpose
of the legislation.”
27. In Lloyd Vs. McMahon, Lord Bridge observed:
(AC pp. 702 H-703 B)
“My Lords, the so-called rules of natural justice are
not engraved on tablets of stone. To use the phrase
which better expresses the underlying concept, what
6the requirements of fairness demand when any body,
domestic, administrative or judicial, has to make a
decision which will affect the rights of individuals
depends on the character of the decision-making
body, the kind of decision it has to make and the
statutory or other framework in which it operates.
In particular, it is well-established that when a
statute has conferred on any body the power to
make decisions affecting individuals, the courts will
not only require the procedure prescribed by the
statute to be followed, but will readily imply so
much and no more to be introduced by way of
additional procedural safeguards as will ensure the
attainment of fairness”.
28. As Lord Reid said in Wiseman Vs. Boardman:
(AC p.308C)
“….For a long time the courts have, without
objection from Parliament, supplemented procedure
laid down in legislation where they have found that
to be necessary for this purpose…”
29. It is thus clear that the extent of
applicability of principles of natural justice depends
upon the nature of inquiry, the consequences that
may visit a person after such inquiry from out of the
decision pursuant to such inquiry.
****
48. On a fair reading of the statute and the
Rules suggests that there is no duty of disclosure of
all the documents in possession of the adjudicating
authority before forming an opinion that an inquiry
is required to be held into the alleged
contraventions by a notice. Even the principles of
natural justice and concept of fairness do not
7
require the statute and the Rules to be so read. Any
other interpretation may result in defeat of the very
object of the Act. Concept of fairness is not a one
way street. The principles of natural justice are not
intended to operate as roadblocks to obstruct
statutory inquiries. Duty of adequate disclosure is
only an additional procedural safeguard in order to
ensure the attainment of the fairness and it has its
own limitations. The extent of its applicability
depends upon the statutory framework.
49. Hegde, J. speaking for the Supreme Court
propounded: “In other words, they (principles of
natural justice) do not supplant the law of the land
but supplement it” [see A.K. Kraipak Vs. Union of
India14]. Its essence is good conscience in a given
situation; nothing more but nothing less (see
Mohinder Singh Gill Vs. Chief Election Commr..)
In the case of Indu Bhushan Dwivedi (supra), the Apex Court
has held:-
“24. However, every violation of the rules of natural
justice may not be sufficient for invalidating the action
taken by the competent authority/ employer and the
Court may refuse to interfere if it is convinced that such
violation has not caused prejudice to the affected
person/ employee.”
In Dharampal Satyapal Ltd. (Supra) Supreme Court held in
following words:-
“38. But that is not the end of the matter. While the law on
the principle of audi alteram partem has progressed in the
manner mentioned above, at the same time, the Courts have
also repeatedly remarked that the principles of natural
justice are very flexible principles. They cannot be applied
in any straight-jacket formula. It all depends upon the kind
8of functions performed and to the extent to which a person
is likely to be affected. For this reason, certain exceptions
to the aforesaid principles have been invoked under certain
circumstances. For example, the Courts have held that it
would be sufficient to allow a person to make a
representation and oral hearing may not be necessary in all
cases, though in some matters, depending upon the nature
of the case, not only full-fledged oral hearing but even
cross-examination of witnesses is treated as necessary
concomitant of the principles of natural justice. Likewise, in
service matters relating to major punishment by way of
disciplinary action, the requirement is very strict and full-
fledged opportunity is envisaged under the statutory rules
as well. On the other hand, in those cases where there is an
admission of charge, even when no such formal inquiry is
held, the punishment based on such admission is upheld. It
is for this reason, in certain circumstances, even post-
decisional hearing is held to be permissible. Further, the
Courts have held that under certain circumstances
principles of natural justice may even be excluded by
reason of diverse factors like time, place, the apprehended
danger and so on.
39. We are not concerned with these aspects in the present
case as the issue relates to giving of notice before taking
action. While emphasizing that the principles of natural
justice cannot be applied in straight-jacket formula, the
aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of
9natural justice which are grounded on the doctrine of
procedural fairness, accuracy of outcome leading to
general social goals, etc. Nevertheless, there may be
situations wherein for some reason – perhaps because the
evidence against the individual is thought to be utterly
compelling – it is felt that a fair hearing ‘would make no
difference’ – meaning that a hearing would not change
the ultimate conclusion reached by the decision-maker –
then no legal duty to supply a hearing arises. Such an
approach was endorsed by Lord Wilberforce in Malloch v.
Aberdeen Corporation[20], who said that a ‘breach of
procedure…cannot give (rise to) a remedy in the courts,
unless behind it there is something of substance which has
been lost by the failure. The court does not act in vain’.
Relying on these comments, Brandon LJ opined in
Cinnamond v. British Airports Authority[21] that ‘no one
can complain of not being given an opportunity to make
representations if such an opportunity would have availed
him nothing’. In such situations, fair procedures appear
to serve no purpose since ‘right’ result can be secured
without according such treatment to the individual.”
11. In the backdrop of the aforesaid cases, it appears that petitioner was
a contractual employee and was appointed in the year 2007 and her
appointment order categorically stipulates conditions of appointment
in the following manner:-
“25- lafonk ftyk dE;wfuVh ekscsykbtj dk pfj= lR;kiu
‘kkldh; lsodksa dks ykxw fu;eksa o vuqns’kksa ds vk/kkj ij fd;k
tk,xkA pfj= ds laca/k esa fdlh izfrdwy fu”d”kZ dh n’kk esa
10fu;qfDr izkf/kdkjh }kjk lafonk fu;qfDr fcuk dksbZ dkj.k crk, rqjar
jn~n dj nh tk,xhA ftl gsrq vuqizek.ku QkeZ rhu izfr;ksa esa
dk;kZy; esa izLrqr djuk vfuok;Z gksxkA
28- fdlh Hkh fujh{k.k ds nkSjku lafonk deZpkjh ds vius
inLFkkiuk LFky ls vuqifLFkr ik, tkus vFkok ,d ekg ls vf/kd
vof/k rd fujarj fcuk dksbZ fof’k”V dkj.k ,oa l{ke vf/kdkjh ds
vuqefr ds vukf/kd`r :i ls vuqifLFkr gksus ij lafonk
fu;ekuqlkj os/kkfud dk;Zokgh dj lafonk lsok lekIr dj nh
tkosxh rFkk dk;kZy; izeq[k }kjk vlR; izek.k i= izLrqr fd;k
tkuk xaHkhj dnkpj.k dh Js.kh esa x.; gksxk ,oa vlR;rk fl)
gksus ij dk;kZy; izeq[k ds fo:) vuq’kklukRed dk;Zokgh
izLrkfor dh tkosxhA
34- lafonk fu;qfDr ij fu;qDr ftyk dE;wfuVh ekscsykbtj
fcuk l{ke vf/kdkjh ds iwokZuqefr@funsZ’k ds dksbZ Hkh
lwpuk@tkudkjh fdlh vU; O;fDr vFkok foHkkx dks fdlh Hkh
ek/;e ls ugha nsxk rFkk dk;kZy;hu xksiuh;rk Hkax ugha djsxkA
35- fu;qfDr mijkar fdlh Hkh le; lafonk ftyk dE;wfuVh
ekscsykbtj }kjk foRrh; vfu;ferrk@lekxzh laca/kh
vfu;ferrk@’kkldh; lEifRr dh gkfu vFkok lsok iznkrk laoxZ
dk;Z laca/kh xaHkhj ykijokgh vkfn esa nks”k fl) gksus ij {kfriwfrZ
jkf’k dh olwyh dj fu;ekuqlkj vkijkf/kd izdj.k ntZ fd;k
tkosxk ,oa fof/k lEer dk;Zokgh dh tkosxhA””
12. Since contractual appointment has been given to the petitioner under
the National Rural Health Mission Project therefore, terms and
conditions of the contract assume importance. Nonetheless, petitioner
was required to be afforded reasonable opportunity of hearing before
proceeding against her. From the submission of learned counsel for
the appellant/National Health Mission, it appears that when
complaint was received, by issuing show cause notice, reply was
11
solicited from the petitioner and after considering each and every
aspects of the matter, work of petitioner was not found satisfactory
and upto mark to the guidelines issued by the appellant.
13. Allegations against the petitioner appears to be constant dereliction
of duties. She was found to be an employee not working properly.
Around 15 show cause notices were issued to the petitioner vide
Annexure A/3 for improvement of work and even complaints were
made by the concerned Chief Medical and Health Officer about her
working and conduct. Allegations against her are serious in nature
which find place in the impugned order itself:
"शमत र च सकसन द कभ समय प आश कयक ओ क उच
परल प अपडर क उच क!एर नह$ ककए जन कक णआश कयक ओ
कमससकभ(ग न म* ब,ल, ह ह-।
शम र च सकसन द आशओककव ड-19 मब,लइजशन क1 पतसहन
क भ(ग न क1 जनक $ समय प -य क भ(ग न शख म* उपलब6 नह$
क य गय जजसकक णय(क मद आश भ(ग न म अलयध6कव लम, ह(आ।
आश ए आश स(प ईज = द सलखख आदन पस ( क लख ककय
गय ह- कक ककस भ कयकम क1 कई भ सच
@ न सच
( र ए समय प न
समलन क क ण कय प@ण नह$ ह प ह ह-। व कसखड कमय(तनर$
मBव लइज़ द मगदशन नह$ ददय ज ह ह-।
शम र च सकसन क कय जजल स स आश समद
( तयक पक!यओ
कयकम क1 सनय&समय प समक म* कय पदशन अतयन ह$
अस षजनक ए तन शजनक ह ह-। व सभनन गत व ध6य= कय!म= ए डर
र पदरHग क स,6 म* अनक , सलखख @मIखखक समण क य जन क द
भ इनक कय समय प पण
@ नह$ ककय गय।
शम र च सकसन क कय वयवह कक णपथ
K क&पथ
K कपत= द ¼15½
12
क ण , ओ नIदरस ज $ ककय गय थ मख
( य खणड धचककतस अध6क $
सम(दतयक स सPय कनQ क हल द पतक पत !मक 24 ददनक
21@04@2023 द शम र च सकसन क व रद6 अन(शसनतमक
कय ह$ ककय जन कतनदRशददय गय।^^
14. Therefore, it is abundantly clear that not only repeated show cause
notices were given to the petitioner but even in present occasion prior
to notice her work was assessed objectively. When the chart
mentioned in the impugned order indicates repeated poor
performance of the petitioner then she cannot be continued in
employment to defeat the very object for which she was appointed.
15. Contractual Human Resource Manual, 2021 contemplates certain
contingencies about conduct of a contractual employee. Relevant
clause 11.3 is reproduced as under:
^^11-3 lafonk deZpkjh }kjk dnkpj.k djus] foRrh; vfu;ferrk esa
‘kkfey gksu]s fdlh Hkh vijkf/kd d“R; esa fyIr gksus vFkok ,sls
fdlh Hkh dk;Z esa fyIr gksus ij] ftlls jk”V“h; LokLF; fe’ku dh
Nfo dks Bsl igqWprh gks] l{ke izkf/kdkjh }kjk ekSf[kd vFkok
fyf[kr lquokbZ dk volj fn;k tk;sxkA fu/kkZfjr le;okf/k esa
izR;qRrj ugha fn;s tkus vFkok izR;qRrj lek/kku dkjd u ik;s
tkus ij fu;ksDrk vf/kdkjh }kjk vuqc/a k rRdky lekIr fd;k tk
ldsxkA bl gsrq 01 ekg ds uksfVl@01 ekg dk ekuns; nsus dh
ck/;rk ugha gksxhA^^
16. Learned counsel for the appellant also referred the letter dated 08-04-
2024 addressed to the Deputy Director, I.T. National Health Mission
in which it has been mentioned that 16 contractual employees have
been under scrutiny and therefore, their orders for extension would be
considered separately. However, contention of the petitioner that
13
contractual period of other employees (out of those 16) have been
extended, would not give any entitlement to the petitioner to claim
extension as a matter of right.
17. It is to be recapitulated that petitioner is a contractual employee and
not a civil or government servant therefore, provisions of M.P. Civil
Services (Classification and Control) Rules, 1966 would not be
attracted with full force in her case. It is generally seen that in the
matters of contractual employee, when performance of employee is
found poor and non-satisfactory then, delinquent is show caused and
after soliciting reply from the employee, the order is passed. In the
present case, sufficient opportunity of hearing has been provided to
the petitioner to explain the allegations levelled against him before
passing the impugned order. The learned writ Court did not consider
the matter in correct perspective and ignored the fact that petitioner is
a contractual employee and her performance was found poor, non-
satisfactory and not upto the mark to the terms and conditions as
framed by the National Health Mission especially when repeated
show cause notices were given to her to improve performance.
18. From the above discussion and the judgments of Apex Court, it
appears that learned Writ Court erred in passing the impugned order,
setting aside the termination order of petitioner by granting extension
to her till 31-03-2025.
19. In cumulative analysis, in fact petitioner was given sufficient
opportunity of hearing as contractual employee. As per Contractual
Human Resources Manual, 2021, appellant has complied with the
provisions and due opportunity of hearing was given to the petitioner.
Judgment relied upon by the petitioner in the case of Mukesh Yadav
and others (supra) was based on the earlier judgment of Division
14
Bench of this Court in the case of Mission Director, RCH/NRHM
Vs. Ranjit Jain and another, 2011 (4) MPHT 266 and that was in
respect of case where no opportunity of hearing was given. No notice
was issued to the employee in the said matter. Here, show cause
notice was issued and tabulation was also made which reflects
comparative performance of the petitioner. Therefore, objective
assessment is made before arriving to conclusion. Therefore, the
judgments relied upon by the petitioner move in different factual
realm and cannot be relied upon in the given set of facts.
20. However, in the given facts and circumstances of the case, it is made
clear that the order of removal of petitioner shall not be treated as
stigmatic order and it would not come in the way of petitioner in any
future prospects of employment.
21. In the conspectus of facts and circumstances of the case, no manifest
illegality, procedural impropriety or palpable perversity is reflected in
the termination order of the petitioner passed by the appellant.
Therefore, the writ appeal filed by the appellant is allowed. The order
passed by learned Writ Court is hereby set aside.
22. Appeal stands allowed and disposed of. No costs.
(ANAND PATHAK) (HIRDESH)
Anil* JUDGE JUDGE
ANIL KUMAR
CHAURASIYA
2025.01.21
11:04:51 +05'30'