Order passed vs Home, Mahanadi Bhawan, Mantralaya, Post & PS Mandir Hasaud,

: Mr. Varun Sharma, Advocate For State/respondents : Ms. Meena Shastri, Addl. A.G. Hon'ble Smt. Justice Rajani Dubey CAV Order

1. The petitioner has filed the instant petition being aggrieved with the order dated 16.05.2017 (Annexure P/1) issued by the respondent No.2 whereby, the petitioner has been given compulsory retirement from the post of Sub-Inspector (A).

2. Brief facts of the case as projected by the petitioner, are that the petitioner was initially appointed as Assistant Sub Inspector (M) in 2 the year 1985 vide order dated 19/09/1985 in the 11th Battalion of the erstwhile Special Armed Force-Bhilai. After the creation of the State of Chhattisgarh the petitioner was posted in the 1st Battalion Chhattisgarh Armed Force, Bhilai. The petitioner was promoted to Sub-Inspector in the year 2003. In the year 2009, when the petitioner was posted at CAF-1 Bhilai the respondent no.3 issued an order vide no. 1st Bat/CAF/Bhi/Stha/III/1109-A/09 dated 20/10/2009 by which the petitioner was attached to the 15th Battalion, CAF, Bijapur and was instructed to join without further delay. A copy of the order dated 20/10/2009 is annexed as Annexure P/2. The petitioner received the said order on 20/10/ 2009 at about 13.30 hrs. The petitioner immediately moved an application on 20/10/2009 at about 1500 hrs itself that the petitioner is holding the charge of Pay Section which is an important and confidential branch. The petitioner has to hand over the charge to one Smt. Paro Gupta as per order dated 16/10/2009. The Assistant Pay Section and Head Constable Dhalendra Tiwari were on leave therefore the petitioner may be allowed some time to join at Bijapur so that proper handing over of charge may be done before proceeding to Bijapur. A copy of the application dated 20/10/2009 is annexed as annexure P/3.

3. On 21/10/2009 the petitioner worked till the first half and thereafter locked the pay section since there was no other personnel to take charge and left for his quarter. In the evening of 21/10/2009, the petitioner received a letter from respondent no.3 stating that since the petitioner locked the pay section therefore the official work suffered. The petitioner was directed to immediately hand over the charge to Smt. Paro Gupta. A copy of the letter dated 21/10/2009 is annexed as Annexure P/4. Since at that time the official time was over therefore the petitioner did not deem it appropriate to hand over the financial charge without proper official procedures. On 22/10/2009, the petitioner fell ill and found himself unable to join the duties. The petitioner without delay intimated the same to respondent no.3 and requested him for grant of some time to hand 3 over the charge. Thereafter, the petitioner duly handed over the charge and proceeded for leave and the leave of the petitioner was duly sanctioned by the department. A copy of the leave sanction order is annexed as Annexure P/5. While working at Bijapur, respondent no.3 issued the impugned charge-sheet no. 10/12 to the petitioner after long delay of about 3 years on 01/08/2012 alleging that the petitioner committed misconduct by locking the pay section on 21/10/2009. This vague charge without mentioning any details and also not taking note of the above mentioned facts, was leveled against the petitioner. A copy of the impugned chargesheet no. 10/12 is annexed as Annexure P/6.

4. On 18/09/2012, the petitioner sought for relevant documents for enabling him to submit reply of the charge-sheet. The aforesaid application of the petitioner was rejected on the same date and the petitioner was directed to file reply of charge-sheet within 2 days. A copy of the order dated 18/09/2012 is annexed as Annexure P/7. The petitioner on 15/09/2012 submitted his reply to charge- sheet for want of relevant documents which is annexed as Annexure P/8. The petitioner vide application dated 02/12/2013 once again sought for relevant documents from the respondent no.3 and requested for time to file reply to the charge-sheet but no information was provided to the petitioner and the petitioner was not granted proper and fair opportunity of hearing. The petitioner on 01/07/2015, once again moved an application before the enquiry officer for grant of documents which was not considered. The petitioner was constrained to move applications before the enquiry officer on 06/07/2015 and 07/07/2015 that the petitioner lost faith in the enquiry officer and hence the enquiry be stopped. Copies of the applications dated 06/07/2015 and 07/07/2015 are annexed as Annexure P/9. Thereafter, the enquiry continued by the enquiry officer was stopped taking signatures of the petitioner on order sheets. On 20/10/2016, the enquiry officer gave a letter to the petitioner stating inter alia that the defence assistant of the petitioner is a dismissed employee and hence is not eligible for 4 acting as a defence assistant.

5. The enquiry officer once again on 25/10/2016 and 27/10/2016 repeated the same contention regarding defence assistant. On 27/10/2016, the enquiry officer threatened the petitioner that the petitioner has to change the defence assistant or else exparte proceedings will be drawn. Copies of letters of enquiry officer regarding defence assistant are annexed as Annexure P/11. The petitioner, on 28/10/2016 made another application before the enquiry officer stating that the enquiry officer may recuse himself from the enquiry as he is biased and despite the objection of the petitioner, recorded the statement of the prosecution witness. A copy of the application dated 28/10/2016 is annexed as Annexure P/12. On 01/11/2016, 04/11/2016, 05/11/2016 and 07/11/2016, the petitioner presented himself before the enquiry officer and requested not to proceed with the enquiry before taking due guidance and orders in respect to the defence assistant. The enquiry officer did not pay any heed to the same. A copy of the application dated 07/11/2016 is annexed as Annexure P/13. On 08/11/2016, the petitioner moved another application before the enquiry officer for submission of his defence statement, written arguments and defence witnesses. Since the relevant documents and opportunities were not provided by the enquiry officer therefore the enquiry officer himself became a defence witness. A copy of the application dated 08/11/2016 is annexed as Annexure P/14. Thereafter, the petitioner was constrained to move an application before respondent no.2 Inspector General of Police, CAF-1 for grant of voluntary retirement (VRS Application) to the petitioner. Copy of the application was marked to the Additional Director General of Police (ADG-CAF) who sought information from respondent no.3 vide letter dated 15/12/2016. Respondent no.3 with a sole motive to destroy the future of the petitioner, gave negative recommendation on 31/01/2017. A copy VRS application along with negative recommendation dated 31/01/2017 are annexed as Annexure P/15. The petitioner was constrained to 5 move a writ petition vide W.P. (S) No. 1105/2017 before this Court for proper consideration of application for voluntary retirement. This Hon'ble Court vide order dated 06/03/2017 disposed of the petition with a direction to respondent no.3 to take appropriate decision on the application of the petitioner within a period of 60 days. The petitioner communicated the order of this Court to respondent no.3 on 20/03/2017. A copy of the order dated 06/03/2017 with letter dated 20/03/2017 are annexed as Annexure P/16.

6. On 11/04/2017 the petitioner made a specific application before the enquiry officer requesting for grant of opportunity to submit defence statement, documents and witnesses. The petitioner also submitted his defence statement and list of documents and witnesses. The aforesaid application was received by the enquiry officer. Upon submission of the application, the enquiry officer got angry and forced the petitioner to give his defence statement recorded on the same date without any further opportunity and threatened him that if he would not get his statement recorded on the same date then exparte final order would be passed against him terminating his services. The petitioner under compulsion got his statement recorded. On 23/04/2017 and 26/04/2017, the petitioner moved applications before the enquiry officer for calling of defence witnesses and the applications are collectively annexed as Annexure P/19. The petitioner was shocked to receive letter dated 05/05/2017 from the enquiry officer informing the petitioner that the enquiry of the petitioner has been completed and enquiry report has been submitted before the respondent no.3. A copy of the letter dated 05/05/2017 is annexed as Annexure P/20.

7. On 20/05/2017, the petitioner received the impugned order whereby respondent no.2 imposed a major penalty of compulsory retirement on the petitioner without providing any opportunity of defence and also without following the mandatory provisions of Rule 14 and 15 of the CCA Rules. Hence, the present petition has been filed by the petitioner for the following reliefs:- 6 i The Hon’ble Court may kindly be pleased to call for the records of the case from the respondents. ii. The Hon’ble Court may kindly be pleased to quash the impugned order dated 16/05/2017 (Annexure P/1) passed by respondent no.2. iii. The Hon’ble Court may kindly be pleased to quash the impugned chargesheet dated 01/08/2012 (Annexure P/6) issued by the respondent no.3. iv The Hon’ble Court may kindly be pleased to direct respondent no.2 to reinstate the petitioner with consequential benefits. v. The Hon’ble Court may kindly be pleased to make any other order that may be deemed fit and just in the facts and circumstances of the case including awarding of the costs to the petitioner.

8. Learned counsel for the petitioner submits that the impugned order is illegal and bad in the eye of law. The departmental action against the petitioner is illegal and without jurisdiction. The impugned departmental action is without jurisdiction and is illegal. Once the enquiry officer allowed the petitioner to submit his defence and list of defence witnesses, the proceedings did not remain ex parte. The impugned action is in clear violation of the Rules 14 &15 of the CCA Rules and hence is illegal. The principles of natural justice are denied in the instant case as no relevant documents were provided to the petitioner. The petitioner was denied opportunity of hearing as the petitioner has yet to submit his response to the enquiry report. The impugned order is in violation of mandatory service rules. The petitioner did not submit his defence and yet to submit the same and respondent no.2 passed an order of punishment which cannot be done in the service jurisprudence. Therefore, the impugned order is arbitrary and against all canons of administrative and service jurisprudence and is liable to be set aside.

9. Reliance has been placed on the judgments of Hon’ble Supreme Court in the matters of Punjab National Bank and Others Vs. K.K. Verma reported in (2010) 13 SCC 494, Boloram Bordoloi Vs. Lakhimi Gaolia Bank and Others reported in (2021) 3 SCC 806, Central Industrial Security Force Vs. HC (GD) Om Prakash reported in (2022) 5 SCC 100 & order of this Court in 7 the matter of Siyaram Basanti vs. Chhattisgarh Rajya Gramin Bank, through it’s Chairman and Others reported in 2022 SCC OnLine Chh 1798.

10.Learned counsel for the respondents/State opposes the prayer of the petitioner and submits that the the instant petition filed by the petitioner is not maintainable and is liable to be dismissed on the sole count that, against the order dated 16.05.2017 (Annexure P/1) passed by respondent No. 2, Inspector General of Police, CAF- 1, Naya Raipur, an alternative and efficacious remedy of appeal would lie to the appellate authority, i.e. Director General of Police, State of Chhattisgarh. However, instead of availing the said alternative legal remedy, the petitioner has filed the instant petition and therefore, it is not tenable. It is further submitted that the order dated 16.05.2017 (Annexure P/1) passed by the answering respondent No. 2 does not suffer from any illegality or infirmity as the same was passed on the basis of finding of the departmental enquiry which was contemplated against the petitioner looking to the serious misconduct and indiscipline on the part of the petitioner, whereby, he locked the pay section on 21.10.2009 without handing over the charge as per the instruction of higher authorities. The very action of the petitioner was against administrative system of the office and put in great trouble. The said action of the petitioner jeopardized the administrative set-up. The said misconduct of the petitioner is contrary and violative of the provisions of Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966, hence, tantamount to gross indiscipline. It is submitted that, a charge sheet was issued to the petitioner, which is evident from Annexure P/6, and the same would clearly indicate that the charge is so specific which can be perused from the charge sheet itself. For the said departmental enquiry, the Inquiry Officer as well as Presenting Officer were duly appointed and the petitioner was afforded ample opportunity of hearing to adduce evidence and defense his case, but the petitioner was failed to make out any case in his favour. Proper 8 proceeding was conducted as per the provisions of Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966. It is pertinent to submit here that, due to attitude of the petitioner in not cooperating with the Inquiry Officer and adopting method of arm twisting there has been delay occurred in concluding the department enquiry and even thereafter affording a reasonable and proper opportunity of hearing to the petitioner proceeding was made. Owing to this, finally the petitioner was declared ex parte and finally proceeded to conclude the inquiry. Thus, there is no illegality or infirmity on the part of the answering respondents and the instant petition being devoid of merits and is liable to be dismissed at the threshold.

11. Heard counsel for the parties and perused the material placed on record.

12.Learned counsel for the petitioner has submitted that the respondent authorities are prejudiced against him, therefore, he filed this petition directly before this Court without availing the alternative remedy of filing appeal.

13.In the matters of Radha Krishan Industries Vs. State of Himachal Pradesh and others, (2021) 6 SCC 771, the Hon’ble Supreme Court while dealing with the scope of exercise of powers under Article 226 of the Constitution of India by the High Court, held in para 27 as under: “27 The principles of law which emerge are that :

27.1 The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

27.2 The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

27.3 Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; 9 (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

27.4 An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

27.5 When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

27.6 In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

14. This Court in the matter of Fekuram Sahu Vs. State of CG, 13 2015 SCC OnLine 297 held in para 3 as under: “3. Despite being aware of the availability of alternate remedy, the petitioner has preferred this writ petition before this Court unnecessarily burdening the docket. There is a growing tendency amongst the litigants to rush to the High Court even in cases, where there is a statutory alternate remedy available, therefore, in view of law laid down by the Supreme Court in the matter of Union of India Vs. Major General Shri Kant Sharma, (2015) 6 SCC 773, the writ petition is dismissed as not maintainable.”

15. Keeping in view the facts and circumstances of the case, the principles of law laid down by the Hon’ble Supreme Court on issue of maintainability of writ petition in the event of availability of alternative remedy and the admitted fact that the petitioner without availing the efficacious alternative remedy of filing appeal has directly approached this Court, the instant writ petition is dismissed as not maintainable reserving liberty with the petitioner to approach the appropriate forum as per the rules for redressal of 10 his grievance.

16.It is made clear that this Court has observed nothing on merits of the case and the competent authority to decide the case of the petitioner strictly in accordance with law on its own merits. Sd/- (Rajani Dubey) Judge Ruchi