Ku;; Bhi Kesharroani v. State of Chhattisgarh

HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0.6453 OF 2005 PETITIONER Ku. Nidhi Kesharwani Versus RESPONDENTS State of Chhattisgarh & Others (Writ Petition under Article 226/227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri P.K.Patel, Advocate for the petitioner. Shri A.V.Shridhar, Panel Lawyer for the State. tt- ORDER (Passed on this 23" day ofApril, 2012)

1. Learned counselappearing for the petitioner submits that the petitioner was duly appointed on the post of Shiksha Karmi Grade-11 by the appointment order dated 17.06.2005 (Annexure P-3); On the basis of certain complaint, by order dated 06.12.2005 (Annexure P-2) the Director, Panchayat & Social Welfare, Raipur, while exercising his power under Section 85 (1) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short "the Adhiniyam, 1993"), suspended the execution of the order of appointment, issued by the Chief Executive Officer, Zila Panchayat, Janjgir-Champa. On the basis of said orderdated06.12.2005, the Chief Executive Officer, passed the impugned order of termination on

13.12.2005 (Annexure P-1) without affording any opportunity of hearing.

2. Learned counsel appearing for the petitioner submits that the impugned order passed by the Chief Executive Officer, is without competence, as he . has exceeded his jurisdiction in terminating the services of the petitioner without following due processof law, as prescribed under Chhattisgarh Panchayat ShikshaKarmis (Recruitment and Conditions of Siervice)"T^ules, 1997 (forshort'theRules, 1997').

3. The Director, exercising his power urider Section 85 (2) of the Adhiniyam, 1993, suspended the order 6f appointment issued, may be with the purpose to hold ehquiry. The Chief Executive Officer, has noauthority or ^Liii-4;A*iLaiJ. competence to terminate the services on the basis of suspension order passed by the Director.

4. Learned counsel appearing for the State respondents submits that there is no dispute that the Director exercised his power to suspend the execution order with the purpose to examine the order issued and thereafter, the order of termination from service can be passed.

5. Having heard learned counsel appearing for the'parties, perused the pleadings and documents appended thereto, it is evident that the Chief Executive Officer has passed the order of termination on the basis of suspension order passed under Section 85 (1) by the Director. Section 85(1) ofthe Adhiniyam, 1993 reads as under: "85. Power to suspend execution of orders, etc.- (1) The State Government or the preseribed in writing and for authority may by an order reasons to be stated therein suspend the execution ofany resolution passed, order issued, licence or permission granted or prohibit performance of any act by a Panchayat, if in his opinion, - (a) (b) (c) such resolution, order, licence, permission or act has not been legally passed, issued, grantedorauthorized; such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or is contrary to any law; or the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely - (i) loss, misapplication of any money or damage to any property vested in the Panchayat; (ii) (iii) to be prejudicial health, safety or convenience; to the public to cause injury or annoyance to the public or any class or body. of persons; or (iv) to lead to a breach of peace."

6. The serviceconditionof Shiksha Karmis are gbverned bytheRules, 1997. It is well settled principles of law that principle of natural justice must be read into the provisions of law, whichprovides for termination at any time ttiJli)t*llL."d.*-t-j. ^ by one month notice, as prescribed under Rule 10 of the Rules, 1997. In the case on hand, nothing has been done, even one month notice has also not been given. The removal of a regular employee without affording an opportunity of hearing is unconstitutional, as underArticle 311(2)0fthe Constitution, it is provided that no such person 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 beingheard in respect of those charges. In such cases, where the employer has power to remove the employee from service, in that event also, the basic opportunity of hearing must be afforded to the employee. Thus, impugned order is illegal and cannot be sustained under the provisions of law. This Court in Roshan Prasad Sidar v. Stafe of Chhattisgarh and Others observed as under: "13. It is well settled principle of law that if any order visits with civil consequences, the same is vitiated, if passed without affording an opportunity of hearing to the employee(s). fSee; Shrawan. Kumar Jha and others v. State of Bihar and dthers , D.K. Yadav v. Industries Ltd. & Others , Basudeo Tiwari v. J.M.A. S;do Kanhu University & Others, Canara Bank & Others. v. Debasis Das & Others , 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 & others , Ashok Kumar Sonkar v. Union of India & Others, Sfafe of Manipur & Others v. Y. Token Singh & Jaswant Singh Pratap Singh Jadeja v. Others , Rajkot Municipal Corporation & another , Nehru Vuva Kendra Sangathan v. Mehbub Alam Lashkar and State of Punjab & Others v. Constable Avtar Singh(Dead) ThroughLRs.13)."