Nafr High Court
Case Details
1 2025:CGHC:8990 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1326 of 2025 1 - Anshu Kamlesh W/o Manish Kumar Jangde Aged About 32 Years D/o S. R. Kamlesh R/o C-23 Maa Amola Villa Colony Near Hari Amrit Seepat Road, Mopka Bilaspur District Bilaspur (C.G.) versus ... Petitioner(s) 1 - State Of Chhattisgarh Through Its Secretary, Department Of School Education, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur (C.G.) 2 - Director Public Instructions, Indrawati Bhawan, Atal Nagar, Nawa Raipur, District Raipur (C.G.) 3 - Joint Director Department Of School Education Bilaspur District Bilaspur (C.G.) 4 - District Education Officer Balodabazar-Bhatapara And Member Secretary, Swami Atmanand Utkrisht School (English Medium) District Bilaigarh - Sarangarh (C.G.) 5 - Narendra Kumar Sahu Incharge Principal, Swami Atmanand Utkrisht School (English Medium), Bilaigarh, District Balodabazar-Bhatapara (C.G.) ... Respondent(s) (Cause-title taken from Case Information System) For Petitioner(s) :
Legal Reasoning
order passed by this Court in WPS No. 8212 of 2023 as also in WPS No. 8458 of 2024, in which a detail discussion was made while considering the order passed by the Hon’ble Supreme Court in case of Swati Priaydarshani v. State of Madhya Pradesh and Ors. reported in 2024 SCC Online SC 2139 decided on 22.08.2024 in which the ratio laid down by the Hon'ble Supreme Court is to the effect that even in case of contractual appointment, if any stigmatic order is to be passed, it may be passed only after holding proper enquiry and after giving due opportunity of hearing to the concerned delinquent/employee. The Co- ordinate Bench of this Court in WPS No. 4969/2015 (Digambar Chandrakar v. State of Chhattisgarh and others) decided on 22.08.2024 held that in order to pass a stigmatic or cumulative order, 4 the concerned authorities are required to hold a departmental enquiry after giving due opportunity of hearing to delinquent/ employee. 9. The view taken by the Hon'ble Supreme Court in the matter of Swati Priyadarshini (supra) goes to show that before passing any stigmatic order for removal of any employee from service, a departmental enquiry is required to be done, which has not been done in this case. In para 34 of the said judgment, the Hon'ble Supreme Court has held as under:- “34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v. Union of India, 1957 SCC OnLine SC 5: "28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India [(1953) 1 SCC 420: 1953 SCR 655]. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [(1954) 1 SCC 572: (1955) 1 SCR 26]. In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the 5 Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India, [58 Bom LR 673: AIR 1956 Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has. by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency other disqualification, then it is or a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting 6 his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests 7 mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." 10. Considering the overall facts and circumstances of the case as well as after hearing learned counsel for the parties as also considering the facts of the case in the light of above quoted judgments, I am of the view that the impugned order dated 03.09.2024 has been passed in a very hurry and haste manner without granting opportunity of hearing to the petitioner. If any stigmatic order is to be passed then the foremost thing which has to be done by the employer is to gave a notice levelling specific allegation against the petitioner and by holding an enquiry after giving due opportunity of hearing to the petitioner. The order, if any, can be passed, it may be passed, after holding enquiry and by giving due opportunity of hearing to the employee/delinquent which is lacking in this case. 11. Same view has been taken further considering the law laid down by the Hon’ble Supreme Court in matter of State of Haryana and other v. Piara Singh reported in (1992) 4 SCC 118, this Court is of the opinion 8 that the order impugned suffers with adherence of proper enquiry and a proper opportunity of hearing which has not been given in accordance with law, that too by replacing one contractual employee by an another contractual employee as such prima facie the impugned order suffers with violation of Articles 14, 16 and 19 of Constitution of India. Accordingly, the State/respondents cannot be allowed to substitute one contractual appointment by another contractual appointment and further while passing stigmatic order, opportunity has not been granted, as such the impugned order dated 03.09.2024 is liable to be and is hereby quahsed. The State/respondents are directed to reinstate the petitioner in accordance with law. 12. With the aforesaid observation(s)/direction(s) instant writ petition is Allowed. Shayna Sd/- (Amitendra Kishore Prasad) Judge
Arguments
Mr. Vikas Dubey, Advocate For State : Mr. Soumitra Kesharwani, Panel Lawyer Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 20/02/2025 1. By way of this writ petition, the petitioner is challenging the legality, validity and proprietary of the impugned order dated 03.09.2024 passed by the respondent No. 4 whereby his services has been terminated in stigmatic and punitive manner without any departmental inquiry 2. Petitioner has prayed for following relief(s):- 2 “i. To kindly be pleased to call the record of the case from the respondents with respect to case of the petitioner. ii. To kindly set asider the order dated 03.09.2024 (Annexure P/1) passed by respondent No. 4 and the eptitioner may be reinstated in service with all consequential benefits. iii. To kindly be pleased pass any other order that may be deemed fit and just in the facts and circumstances of the case.” 3. That the petitioner has challenged the order dated 3/9/2024 passed by respondent no. 4 whereby the service of the petitioner is terminated by stigmatic and punitive nature in most arbitrary manner 4. The facts of the case, in a nutshell, is that, petitioner was appointed on 19/8/2021 on the post of Lecturer (English) on contract basis at Swami Atmanand Utkrisht Vidhyalaya, English Medium, Bilaigarh. Upon an anonymous complaint against the petitioner, respondent no. 4 has issued a show cause notice cum charge memo on 27/8/2024 and directed to submit explanation within 7 days. The aforesaid notice dated 27/8/2024 was served upon the petitioner on 30/8/2024 and in a very haste and hurry manner also without waiting for given 7 days, only on fourth day of the service of the notice the termination order is passed on 03/9/2024. 5. Learned counsel for the petitioner submits that termination order dated 03.09.2024 is arbitrary and bad in law as the same has been passed without giving proper opportunity of hearing to petitioner. The impugned order dated 03.09.2024 reflects that the same is punitive and stigmatic in nature, which adversely affects future of petitioner for her employment. The law is settled that any order in nature of stigmatic or punitive cannot be passed without a full fledged departmental enquiry. 3 In support of his contention he placed reliance upon the decision of Hon’ble Supreme Court in case of Swati Priyadarshini vs State of Madhya Pradesh, reported in 2024 SCC Online SC 2139. It is further contended that the conditions no. 1 & 2 stipulated in appointment order that, against the order of dismissal the petitioner cannot initiate legal proceedings, is violation of Article 32 of the Constitution of India, therefore, petitioner cannot be compelled such conditions which is contrary to the law of the land and the services of the petitioner cannot be terminated on the basis of such conditions. 6. On the other hand learned counsel for the State/respondents opposes the submission made by learned counsel for petitioner and supports the impugned order. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Considering the entire aspect of the matter and further considering the