1 - Nutan Bhensle D/o Vishnu Lal Bhensle Aged About 29 Years At That v. 1 - State Of Chhattisgarh Through Principal Secretary Mahanadi Bhawan Atal Nagar Naya Raipur
Case Details
1 Digitally signed by RAGHVENDRA JAT 2025:CGHC:45428 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4249 of 2023 1 - Nutan Bhensle D/o Vishnu Lal Bhensle Aged About 29 Years At That Time Technical Assistant, Jila Panchayat District Balod, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Principal Secretary Mahanadi Bhawan Atal Nagar Naya Raipur (C.G.) 2 - C.E.O. Jila Panchayat Jila Panchayat District Balod (C.G.) 3 - C.E.O. Janpad Panchayat Balod, District Balod (C.G.) 4 - Secretary Gram Panchayat, Jungera, Village Jungera, District Balod (C.G.) ... Respondent(s) For Petitioner(s)
Legal Reasoning
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 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 7 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, 8 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 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 9 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 10 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.” 8. 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 22.6.2023 has been passed in a very harsh 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. 9. Taking into consideration of the law laid down by the Hon’ble Supreme Court as well as by this Court and for the reasons and 11 discussions made here-in-above, the impugned order dated 22.6.2023 (Annexure P/1) is hereby quashed. The petitioner is entitled for all the benefits following from quashment of impugned order dated 22.6.2023. However, liberty is reserved to the respondent authorities to hold proper enquiry, if so advised. 10. In the result, the writ petition is allowed with the aforesaid
Arguments
: Mr. Rohan Kumbhare, Advocate on behalf of Mr. T.K. Jha, Advocate. For Respondent(s)/State : Mr. Devesh G. Kela, Panel Lawyer. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 04/09/2025 2 1. By way of this petition, the petitioner has prayed for following reliefs:- “10.1 That, this Hon'ble Court may kindly be pleased to allow the petition and set aside the notice cum recovery order dated 22.06.2023 (ANNEXURE P/1) in the interest of justice. 10.2 That any other relief, which this Hon'ble Court may deem fit and proper together with cost of the petition.” 2. Brief facts of the case, is that, the petitioner was appointed as a Technical Assistant on contract basis in Janpad Panchayat, Balod under the MGNREGA Act vide order dated 04.12.2015. Her services were terminated by order dated 15.11.2021 on the allegation that she had allowed a change in the place of construction work. Subsequently, the Chief Executive Officer, Jila Panchayat, Balod, issued the impugned notice dated 22.06.2023, directing her to deposit a sum of Rs. 1,29,082.00 into the account of MGNREGA and thereafter submit her explanation within 15 days. It is contended that before issuance of the impugned notice, no opportunity of hearing was granted to the petitioner, which is violative of the principles of natural justice. Moreover, the decision regarding execution or change of place of work is taken by the resolution of the Gram Sabha, and therefore, the petitioner, being a lower-level contractual employee, cannot be 3 held responsible for any alleged irregularity. 3. Learned counsel for the petitioner submits that the impugned recovery notice has been issued in complete violation of the settledLearned counsel for the petitioner submits that the impugned recovery notice has been issued in complete violation of the settled principles of natural justice, in as much as no opportunity of hearing or explanation was granted to the petitioner before fastening liability upon him. It is further urged that the duty of the petitioner was purely supervisory in nature, while the Gram Panchayat/Gram Sabha was the competent authority to take decisions with respect to construction work, therefore, the petitioner cannot be held liable for any alleged financial irregularities. Counsel further contends that the petitioner has not derived any undue advantage, and the modification in the construction work was duly carried out as per the proposal and resolution of the Gram Sabha. It is also argued that the petitioner’s services have already been terminated on malafide grounds, and the issuance of recovery notice without affording him an opportunity of hearing reflects arbitrariness and amounts to a grave injustice, which deserves to be set aside. 4. Learned counsel for the State, opposing the submissions advanced on behalf of the petitioner, contends that the impugned recovery notice has been issued strictly in accordance with law 4 and after due consideration of the records available with the authorities. It is urged that the petitioner, while working in the capacity of Technical Assistant, was entrusted with the duty of supervision as well as ensuring that the construction work was executed in conformity with the prescribed norms and financial guidelines under the scheme. Merely contending that the Gram Panchayat/Gram Sabha was the decision-making body does not absolve the petitioner of his statutory responsibility to monitor, verify, and report any irregularities, which he failed to do. It is further submitted that the financial irregularities and deviations in the construction work clearly occurred under his supervision, thereby fastening liability upon him for dereliction of duty. The argument that no opportunity of hearing was provided is without merit, as the issuance of notice itself amounts to affording an opportunity to submit an explanation, which the petitioner chose not to avail. It is also denied that the termination of services was malafide; rather, it was the natural consequence of his negligence and failure to discharge official responsibilities. In these circumstances, the impugned recovery notice cannot be said to be arbitrary or unjust, and the petition, being devoid of substance, deserves to be dismissed. 5. I have heard learned counsel for the parties and perused the material available on record. 6. The Hon’ble Supreme Court in the matter of Swati Priyadarshini 5 vs. State of Madhya Pradesh and Others 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 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. 7. 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: 6 "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
Decision
observations/directions. There shall be no order as to costs. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat