Ku. Savitri Nishad D/0 Shri Tibhu Ram v. RESPONbENTS

Ku. Savitri Nishad D/0 Shri Tibhu Ram Nishad. aged about 25 years Occupation- Service working on the post of Shikshakarmi at Government Primary School Shukfabhata , Block Mainpur, District- Raipur, (C.G.) VERSUS RESPONbENTS :

1. State of Chhattisgarh, through Secretary, Panchayat and Social Welfare, D.K.S. Bhawan Raipur, District-Raipur,(C.G.)

5. Director, Panchayat, Raipur, Raipur (C.G.) bistrict- Collector, Raipur, District-Raipur, (C.G.) Chief Executive OffJcer, Zila Raipur, District- Raipur, (C.6.) Panchayat, Chief ExecutiveOfficer, Janpad-Panchayat AAainpur, District- Raipur,(C.G.)

6.' District Education Officer, Raipur, District- Raipur, (C.G.) WRIT PETITION U/A 226 OF THE CONSrTITUTCON OF INDIA ^p^ mOH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 3012 of2009 PETITIONER Durgesh Prasad Sinha VERSUS RESPONDENTS : StateofChhattisgarh&Others ALONGWITH Writ Petition (S) No. 7161 of 2008, 7232 of 2008, 25 of 2009, 98 of 2009, 99 of 2009, 188 of 2009, 189 of 2009, 371 of 2009, 372 of2009,473 of 2009, 754 of 2009, 2759 of 2009, 2763 of 2009, 2764 of 2009, 2771 of 2009, 2772 of 2009, 2773 of 2009, 2774 of 2009, 2776 of 2009, 2783 of 2009, and Writ Petition (S) No. 2784 of 2009. Post for pronouncement ofthejudgment on 7'^ay ofAugust, 2009 Sd/- Satish K. Agnihotri Judge ^ mOH COURT QF CKjATTLSGARH AT BILASPUR WRIT PETITION (S) No. 3012 of2009 PETITIONER Durgesh Prasad Sinha S/o Govind Lal Sinha, aged about 35 years, Occupation Service, Posted Shiksha Karmi Class III in Primary School Kur^apani, Vikas Khand Mainpur, Distt. Raipur (C.G.) VERSUS RESPONDENTS : 1. State of Chhattisgarh Through Secretary, Service, D.K.S. Panchayat Bhawan, Raipur, District Raipur (C.G.) Social

2. Director, Panchayat, Raipur, District Raipur (C.G.)

3. Collector, Raipur, District Raipur, C.G. 4. Chief Executive Officer, Zila Panchayat, Raipur, District Raipur (C.G.)

5. Chief Executive Officer, Janpad Panchayat, Mainpur, District Raipur, (C.G.)

6. District Education Officer, Raipur, District Raipur(C.G.) ALONGWITH Writ Petition (S) No. 7161 of 2008, 7232 of 2008, 25 of 2009, 98 of 2009, 99 of 2009, 188 of 2009, 189 of 2009, 371 of 2009, 372 of2009,473 of 2009, 754 of 2009, 2759 of 2009, 2763 of 2009, 2764 of 2009, 2771 of 2009, 2772 of 2009, 2773 of 2009, 2774 of 2009, 2776 of 2009, 2783 of 2009, and Writ Petition (S) No. 2784 of 2009. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri Awadh Tripathi, Advocates for the petitioners. Shri Amn Sao, Govemment Advocate with Shri Ajit Singh, Panel Lawyer for the State. Shri Amn Sao, Advocate for the Janpad Panchayat. JUDGMENT (Passed on .I.'.;day of August, 2009) ^ The petitioners, in this batch ofpetitions, are aggrieved by the cancellation of their appointment orders on the post of Shiksha Karmi Grade III under Janpad Panchayat Mainpur, without affording an opportunity ofhearing. The question of law involved in this batch of petitions i.e. W.P.(S) No. 3012 of 2009, 7161 of 2008, 7232 of 2008, 25 of 2009, 98 of 2009, 99 of 2009, 188 of 2009, 189 of 2009, 371 of 2009, 372 of 2009, 473 of 2009, 754 of 2009, 2759 of 2009, 2763 of 2009, 2764 of 2009, 2771 of 2009, 2772 of 2009, 2773 of 2009, 2774 of 2009, 2776 of 2009, 2783 of 2009 and 2784 of 2009 is whether the appointments of the petitioners, who have been appointed after due selection on the post of Shiksha Karmi Grade III, can be cancelled on the ground of submission of alleged false and forged documents by some of the candidates, without affording an opportunity of hearing? Thus, petitions are being considered and decided by this common order. The indisputable facts, in nutshell, in the petitions are that the petitioners were selected for appointment on the post of Shiksha Karmi Grade III through proper selection process and they were accordingly appointed. The petitioners joined their respective posts at respective places in the month of August-September,

2007. After sometime, the Chief Executive Officer^ Janpad Panchayat, Mainpur cancelled the appointment ofthe petitioners on the ground of submission of false and forged documents, by orders dated 10th December, 2008 and 29th May, 2009. The impugned orders have been filed and marked as Armexure P/l in all the writ petitions. •^»J 6; Being aggrieved, the petitioners have filed these petitions seeking a direction to quash the impugned orders, by which the ser/ices of the petitioners have been terminated., and to grant relief of continuation of their ser^lces on the respective posts and places. Leamed counsel appearmg for the petitioners would submit that once the petitioners have been appointed afiter following proper selection process and after verification of the documents, their appointments cannot be cancelled without affording an opportunity of hearing. Leamed counsel would further submit the petitioners ought to have been given at least an opportunity ofhearmg to establish the genuineness or bonafide ofthe documents, which were allegedly discovered/later on, by the authorities, as false and forged documents, after appointment ofthepetitioners. Per contra, Shri Arun Sao, learned counsel appearing for the State as well as the Janpad Panchayat would submit that, in fact., afiter affording an opportunity of hearing, the termination orders have been passed. Shri Sao would further submit petitioners, without availing the altemative statutory remedy., have directly approached this Court, and as such, the writ petitions deser^e to be dismissed on the ground of availability of alternative remedy, alone. Shri Sao would next submit that in the appointment order itself, it has been specifically mentioned that at any point of time, if the documents submitted by the candidates are found to be false and forged, the services of the employee may be terminated. Therefore, impugned G^ termination orders have been passed by the respondent authorities in accordance with law.

7. Further, Shri Sao would submit that on receiving a complaint that there was a lot of irregularities in appointment of Shiksha Karmi Grade III, a team was constituted. The Chief Executive Officer., Zila Panchayat, Raipur, constituted an Enquiry Committee consisting of District Education Officer, Raipur, Assistant Commissioner, Tribal Welfare Department, Raipur and Assistant Project Officer^ Zila Panchayat, Raipur. On receiving of the report, a notice dated 28 Febmary, 2009 (Annexure R- 5/2 to W.P.(S) No. 3012/2009) was issued to all the petitioners calling upon them to remain present on the 12th and 13th March, 2009 and 13th March, 2009 alongwith original documents for inspection. Afiter hearing the petitioners on 12 March, 2009, the Chief Executive Officer, Zila Panchayat, Raipur^ passed a detailed order giving reasons on 28 May, 2009 (Annexure R- 5/3 to W.P.(S) No. 3012/2009). Thus, the contention ofleamed counsel appearing for the petitioners that no opportunity of hearing was afforded to the petitioners is factually incorrect and as such, not tenable.

9. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. There is no dispute that the petitioners were appointed through proper selection process. The order ofappointment clearly states that the Shiksha Karmi Grade III were appointed on probation initially for a period of three years which was extendable for maximum five years. It is further stated inter alia, in clause 7 of the appointment orders that after appointment, if it is found that ^s the appointment has been obtained on production of false and forged documents, the appointment may be cancelled. It admitted that the petitioners were appointed afifcer due selection process and afiter verification of their documents. Subsequently, it was found that some of the documents filed by some candidates/petitioners were genuine, therefore, appointment orders ofthe petitioners, which were made pursuant to the selection process, were cancelled.

10. In this batch of matters, it appears that a notice was issued on 28th March, 2009 (Annexure R-5/2 to W.P.(S) No. 3012/2009) to produce the original documents, and not to afford an opportunity ofhearing as it was not possible to hear 114 persons in one day on 12 March, 2009 and 113 candidates on the second day i.e. 13th March, 2009. The petitioners were not afforded any opportunity of hearing in the preliminary enquiry conducted by the Committee appointed by the Collector.

11. 'Sho^ cause notice9 implies opportunity of submitting an explanation to a clear unambiguous notice. Thus, in the facts of the case an information was brought in the knowledge of the petitioners without giving show cause notice to file response to prove genuineness or bonafide ofthe documents.

12. The Hon'ble Supreme Court in Commissioner ofSales Tax and Others vs. Subhash &Co\ obser^ed as under: "15. The term "notice" originated from the Latin word "notifia" which means "a being known" or a knowing and is wide enough in legal circle to include a plaint filed in a suit. "Notice" has been defined in various judicial dictionaries and dictionaries as follows : ' (2003) 3 SCC 454 The Judicial Dictionary, Words and Phrases Judicially Interpreted,2nd Edn., by F. Stroud (p. 1299). '"Notice is a direct and defmite statement of a thing, as distinguished from supplying materials from which the exrsterice of such thing may be inferred." Webster's Universal College Dictionary, 1997 Edn., (p. 543) "Information, waming or announcement of something impending; notification; to give notice of one's intentions; a written or printed statement waming; as for renting or employment, that the agreement will terminate on a specified date - gave her employer two weeks' notice.9 9\ 'She information conveying Oxford Concise Dictionary "an intimation; intelligence, waming" and has the meaning in the expression like "give notice", "have notice" or "formal intimation of something or instmction to do something" and "till has the expression like "notice to quit'\ further notice". Chamber's 2(fh Century Dictionary, 1993 (p. 1154) "intimation; information; announcement; waming; a writing, placard etc. conveying an mtimation preparation, etc." or waming; allowed Chamber's Dictionary vide Allied Chambers (India) Ltd., Reprint 1994, 1995 (p.1154) a "intimation; formal announcement; announcement made by one of the parties to a contract of his or her intention to terminate that contract; information, especially about a future event; waming; a writing; placard, board etc. conveymg an Intlmation or wamlng; cognizance; allowed observation; heed; mention; a dramatic or artistic review; civility or respectfultreatment; a notion etc." preparation; Law Lexicon Dictionary - A Legal Dictionary ofLegal Terms and Phrases Judicially Defined, 4th Edn., Vol. II, 1989 (p.226) "A person is said to have notice ofa fact, when he actually knows that fact, or when, but for willful abstention from an enquiry or search to have made, or gross which he ought negligence, he would have known it." The Law Lexicon Dictionary, 2 1322) nd Edn., 1997 (p. (1) Intimation; a writing; placard, board, etc. conveying an intimation or waming (Section 154 IPC and Article 61 (2) (a), Constitution of India); (2) Knowledge or cognizance (Section 56, Indian Evidence Act). information conceming a

16.66Notice'\ in its legal sense, may be defined actually communicated to a party by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. Dictionary further states: Co Lit 309 Tomlin )s Law Dictionary.

17. Notice is making something known, ofwhat a man was or might be ignorant ofbefore. And it produces diverse effects, for, by it, the party who gives the same shall have the same benefit, which otherwise he should not have had; the party to whom the notice is given is niade subject to some action or charge, that otherwise he had not been liable to; and his estate in danger ofprejudice. "thing

18. "Notice is a direct and defmite statement of from supplying a materials from which the existence of such thing may be inferred." (Per Parke, 5. Burgh v. Legge). distinguished

19. The dictionary gives some other defmitions of"notice"as: The instrumentality by which knowledge is conveyed, or by which one is charged with knowledge. - The term 'notice' legal sense embraces a knowledge of circumstances that ought to induce suspicion or belief, as well as direct information ofthat fact. in its full ^ - In its popular sense 'notice' information intelligence, or knowledge." is equivalent to

13. It appears to be a mere formality and the impugned orders have been passed on the basis of report submitted by the Committee recommending cancellation of appointment of the petitioners. The petitioners were appointed in the month of July-August,

2007. Thus, I am ofthe considered opinion that it cannot be held that proper opportunity ofhearing was afforded to the petitioners before passing the impugned orders. In the present cases^ it appears that no opportunity of hearing as required under the prmciples of natural justice and fair play in action was afforded.

14. It is well settled principle of law thaf if any order visits with civil consequences, the same is vitiated, if passed without affordmg an opportunity of hearing to the employee(s). (See Shrawan Kumar Jha and others v. State ofBihar and others , D.K.Yadav v. J.MA. Industries Ltd. & Others , Basudeo Tiwari v. Sido Kanhu University & Others, Canara Bank & Others, v. Debasis Das & Others5, Vivekanand Sethi v. Chairman, J&K Bank Ltd. & Others6, Mohd. Sartaj & another v. State of U.P. & Others7, Inderpreet Singh Kahlon & others Vs. State ofPunjab & others8, Ashok Kumar Sonkar v. Union of India & Others9, State of Manipur & Others v. Y.Token Singh & Others10, Jaswant Singh Pratap Singh Jadeja v. Rajkot Municipal Corporation & (1998) S.C. 3261