High Court of Chhattisgarh
Case Details
1 2025:CGHC:2081 NAFR Digitally signed by VAISHALI LUCKY NAGARIA Date: 2025.01.29 11:03:40 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2456 of 2024 • Devraj Gupta S/o Shri K.S. Gupta, Aged About 49 Years R/o House No. 24, P.W.P. Transit Hostel Campus Saket Colony, Vrindavan Nagar, Jagdalpur, District Bastar Place Jagdalpur (C.G) versus ... Petitioner 1. State Of Chhattisgarh Through The Secretary, Department Of Health And Family Welfare, Mahanadi Bhawan, Mantralaya, Naya Raipur, Atal Nagar, District Raipur (C.G.) 2. Managing Director, Chhattisgarh Medical Service Corporation Ltd. Commercial Premises, 4th Floor, Sector-27, Naya Raipur, Atal Nagar, Raipur, District Raipur, Chhattisgarh. 3. Executive Engineer, C.G.M.S.C. Ltd. Bastar Division Bastar, District Bastar Place Jagdalpur, Chhattisgarh. ... Respondents For Petitioner For Respondent/State
Legal Reasoning
considering the 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 the case of Swati Priaydarshani vs. State of Madhyapradesh 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 fact that even if for contractual appointment, if any stigmatic order is to be passed, it is to be passed after holding proper enquiry and after 5 giving due opportunity of hearing to the concerned delinquent/employee. The Co-ordinate Bench of this Court in WPS No. 4969/2015 in the matter of Digambar Chandrakar vs. State of Chhattisgarh and others decided on 22.08.2024 and in the said case also, this Court of the view that in order to pass a stigmatic or cumulative order, 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 6 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 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 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 7 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 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 the constitutional right of the servant." in violation of and 8 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 23.06.2023 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 reported in matter of State of Haryana and other Vs. Piara Singh reported in (1992) 4 SCC 118, this Court is of the opinion 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 Article 14, 16 and 19 of Constitution of India. Accordingly, the 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 is liable to be quahsed. The 9 respondents are directed to reinstate the petitioner in accordance with law. 12. With the aforesaid observation(s)/direction(s) instant petition is Allowed. vaishali Sd/- (Amitendra Kishore Prasad) JUDGE
Arguments
: Mr. Vivek Singhal, Advocate : Ms. Nupur Trivedi, Panel Lawyer for the State For Respondents No. 2 &3 Mr. Raghvendra Pradhan, Advocate Hon’ble Shri Justice Amitendra Kishore Prasad 13/01/2025 Order on Board 1. By way of this writ petition, the petitioner is challenging the legality, validity and proprietary of the impugned order dated 19.03.2024 passed by the respondent No.2 whereby 2 replacement of the service of the petitioner has been closed on 18.04.2024 without considering completion of 11 years of his service and without there being extension of the service, which is against the clause 1.7 of the guidelines of the State Government and also against the law. 2. The petitioner prays for the following relief(s):- (I) That, this Hon’ble Court may kindly be pleased to set-aside/quash the impugned order dated 19.03.2024 passed by the respondent No.2 in the interest of justice. (ii) That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to continue the services of the petitioner with all consequential benefit, in the interest of justice. (iii) That, the Hon’ble Court may kindly grant any other writ/writs order/ orders direction/directions to issue similar order as per direction given by Hon’ble Court in the matter of Rekha Singh vs. State of Chhattisgarh and others in WPS No. 3819/2019, in the interest of justice. (iv) That, the Hon’ble Court may kindly grant any other reliefs in favour of the petitioner, which the Hon’ble Court deemed fir and just in the the facts and circumstances of the case, in the interest of justice. 3. The facts of the case are in nutshell is that, the respondent authorities issued an advertisement dated 04.09.2012 for the post of Sub Engineer on contractual appointment for three year. The petitioner applied for the said post and was successfully participated in the recruitment process and he has been selected and appointed on the post of Sub Engineer, since then the petitioner is continuously performing his duty sincerely and regularly without any break of service. On the basis of good performance and he has completed considerable period that is more than 10 years of the services without any complaint what 3 so ever till date. Suddenly, the respondent no.2 deliberately and intentionally passed impugned order dated 19.03.2024 whereby replacing the service of the petitioner, which is against the clause no.1.7 of the guidelines dated 03.06.2015. The State Government has issued every year a fresh advertisement for the post of Sub Engineer and replacing already serving Sub Engineer by another Sub Engineer. The petitioner was appointed as Sub Engineer for the session 2023-2024. The grievance of the petitioner is that serving contractual Sub Engineer should not be replaced by another contractual Sub Engineer. 4. Learned counsel for the petitioner submits that vide impugned order dated 19.03.2024, the petitioner has been removed from contractual service on the post of Sub-Engineer and replacing his services which should be closed on 18.04.2024 which is against the Clause No. 1.7 of the guidelines dated 03.06.2015 wherein it has been held that a person can be removed after giving one month notice stating that his ACR is not worthy however, upon his reply he has not been considered to improve his ACR, as such under Chhattisgarh Civil Services Contract Appointment Rule 2012(15)(3) his services were terminated. He further submits that since the order is stigmatic one as such an enquiry along with proper opportunity of hearing is required to be given and regarding the ACR he has to be given an opportunity to rectify the same however, the same is not done and without following the same and without mentioning any 4 reason he has been removed from services, which is perse illegal and arbitrary as such the petition is required to be allowed. He further submit that he must be replaced only by a regularly selected employees. 5. On the other hand learned counsel for the State submit that the contesting party is respondents No.2 and 3 and as such it would be appropriate to take response from them. The State of Chhattisgarh is formal party in this case. 6. Learned counsel for respondents No. 2 and 3 have filed their reply in which they have supported the impugned order, however, upon query being made by learned counsel for the respondent No. 2 and 3 have clearly submitted that this petition covers with the order dated 24.10.2024 passed in WPS No. 6633 of 2006. 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