Nafr High Court
Case Details
1 2025:CGHC:7817 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2922 of 2020 Uttam Kumar Patrey S/o Ashok Kumar Patrey Aged About 38 Years R/o 188, Satnamipara, Godi, Singarpur, Baloda-Bazar, District- Baloda-Bazar, Bhatapara, (C.G.)., District : Balodabazar-Bhathapara, Chhattisgarh versus ... Petitioner(s) 1 - State Of Chhattisgarh Through Secretary- Panchayat And Rural Development Department, Mahanadi Bhawan Mantralaya Raipur, P.S. Kewli, Tahsil Civil And Revenue District- Raipur, (C.G.)., District : Raipur, Chhattisgarh 2 - Collector Cum District Program Coordinator Mahatma Gandhi Rashtriy Gramin Rojgar Guarantee Yojna, Baloda Bazar, Bhatapara, District- Baloda-Bazar- Bhatapara, (C.G.)., District : Balodabazar-Bhathapara, Chhattisgarh 3 - Chief Executive Officer Zila Panchayat Balodabazar-Bhatapara, District- Baloda Bazar-Bhatapara, (C.G.)., District : Balodabazar-Bhathapara, Chhattisgarh 4 - Chief Executive Officer Janpad Panchayat Bhatapara, District-Baloda-Bazar- Bhatapara, (C.G.)., District : Balodabazar-Bhathapara, Chhattisgarh ... Respondent(s) For Petitioner(s) For Respondents 1 & 2/State : :
Legal Reasoning
“12. Now, it is well settled that the temporary government servants or probationers are as much entitled to the protection of Article 311 (2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously-worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36) It is explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put in differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was “founded” on those factors or other disqualifications.” 9. In the matter of Kaushal Chandrakar and Ors.Vs. State of Chhattisgarh and Ors. reported in 2021 SCC Online Chh2251, this Court in para-20 held as under:- “20.The Supreme Court in the matter of Dr. Vijaykumaran (supra) has clearly held that material which amounts to stigma need not be contained in the order of termination of the probationer, but might be contained in any document 5 referred to in the termination order. It was further held that such reference may inevitably affect the future prospects of the incumbent and if so, the order must be construed as ex facie stigmatic order of termination....” 10. In the matter of Rahul Tripathi vs. R.G.S. Mission reported in 2001 SCC Online MP 54, it is held by the High Court of Madhya Pradesh that though the replies were not found satisfactory, but no inquiry was conducted and thereafter, issuance of order of termination attaches stigma though the contract period ended, consequently, order of termination was set-aside with all consequential benefits. 11. The Hon’ble Supreme Court in the matter of Swati Priyadarshini vs. State of Madhya Pradesh and others. reported in 2024 SCC Online SC 2139 decided on 22.8.2024 has held 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 giving due opportunity of hearing to the concerned delinquent/employee. In para 34 of the said judgment, the Apex 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: 6 (1955) 1 SCR 26]. In either of the two abovementioned 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 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 or other disqualification, then it is 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 7 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 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 8 must be held to be wrongful and in violation of the constitutional right of the servant.” 12. Reverting to the facts of present case, it is found that allegation against the petitioner was that he prepared false and fabricated muster roll, which is stigmatic allegation, as such, he was removed from his employment alleging that he was negligent and disinterested towards his work. Having considered aforesaid dictum of the Apex Court, the respondent authorities ought to have provided due opportunity of hearing to the petitioner prior to his removal from the employment, but no such procedure of natural justice has been followed and only after serving show-cause notice, the petitioner has been removed from employment, therefore, order impugned is perverse and illegal, as such, the same is liable to be set aside and quashed. 13. Taking into consideration the law laid down by the Apex Court and for the reasons and the discussion made hereinabove, impugned Order dated 26.6.2019 (Annexure-P/1) passed by respondent No.4 is hereby quashed. However, since the tenure of employment of the petitioner was for three years and the same was expired 13.05.2019, the respondent authorities are directed to grant monetary benefit if any, to the petitioner which he was obtaining prior to his removal till his original tenure of engagement as per order of appointment, within 08 weeks from the date of receipt of a copy of this Order. Sd/- (Naresh Kumar Chandravanshi) Judge Bini
Arguments
Mr. Hemant Gupta, Advocate Mr. Rajeev Bharat, Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Order on Board 13/02/2025 1. 2. With the consent of the parties, the matter is heard finally. The petitioner has preferred instant writ petition under Article 226 of the Constitution of India, challenging order dated 26.6.2019 (Annexure-P/1), BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.02.17 14:43:58 +0530 2 whereby the petitioner has been removed from the post of Gram Rojgar Sahayak (GRS). 3. Facts of the case, in brief, are that , the petitioner was appointed on the post of Gram Rajgar Sahayak on contractual basis under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGA) in Gram Panchayat Godi S, Tahsil Bhatapara, Distt. Baloda Bazar-Bhatapara vide Annexure-P/3. Thereafter, the petitioner worked till his removal, but on the allegation of preparing false and fabricated muster roll, he has been removed from said post vide impugned Order dated 26.6.2019 (Annexure-P/1), which is challenged in the instant petition. 4. Learned counsel for the petitioner submits that the petitioner worked with honesty and dedication, but due to some false complaint made against him, he has been removed from employment after serving him show-cause notice. He would further submit that no proper enquiry has been conducted and principle of natural justice has not been followed by the respondent authorities before removal of the petitioner from his employment. He next submitted that complaint was made against the petitioner for preparation of false and fabricated muster roll, but no opportunity of hearing or cross- examine the witnesses has been provided to the petitioner, rather, a team of officers prepared report (Annexure-P/6) after conducting enquiry from some villagers, that too, without providing opportunity to the petitioner to cross examine them, as such, report Annexure-P/6 submitted by the team of officials and order of removal of the petitioner vide Annexure-P/1 are perverse and illegal, and the same may be set aside and the petitioner may be directed to be reinstated on his employment. 5. The State has filed its reply. Learned counsel for the State while referring to its reply would submit that, the villagers had made complaint 3 against the petitioner that he prepared false and fabricated muster roll naming various persons who were neither engaged in the MGNREGA nor were present in the village when the said work was executed. He further submits that three member committee was constituted by Chief Executive Officer, Janpad Panchayat, who conducted detailed enquiry in the complaint dated 06.6.2018 (Annexure-P/4) made against the petitioner. After due enquiry, report (Annexure-P/6) was submitted by the Committee to the effect that the petitioner had prepared false and fabricated muster roll even naming those persons who left the village for earning their livelihood and also the persons, who were not present in the village at the time of said work. He would further submit that after submission of enquiry report, the petitioner was served show-cause notice dated 11.02.2019 (Annexure-P/7), which was replied by the petitioner on 13.02.2019 (Annexure-P/8), but finding the explanation submitted by the petitioner unsatisfactory, finding his negligency and disinterest towards his work, he has been removed from his service, hence, this petition is liable to be dismissed. 6. I have heard learned counsel for the parties and perused the material available on record. 7. Contentions put forth by learned counsel for both the parties show that the appointment of the petitioner was made on contractual basis and prior to his removal, he has been served with show-cause notice dated 11.02.2019 (Annexure-P/7), which was replied by the petitioner on 13.02.2019 vide Annexure-P/8. As per enquiry report (Annexure-P/6), allegation against the petitioner was that he had prepared false and fabricated muster roll and based on that enquiry report, he has been removed vide Order dated 26.6.2019 (Annexure-P/1) by respondent No.4. Thus, allegation against the 4 petitioner is stigmatic as he prepared false and fabricated muster rolls, as such, he was found negligent and disinterested towards his duty. 8. The Hon'ble Supreme Court in the matter of Chandra Prakash Shahi Vs. State of UP and Ors. reported in (2000) 5 SCC 152, in para 12 has observed as under:-