High Court of Chhattisgarh
Case Details
1 RAVI SHANKAR MANDAVI Digitally signed by RAVI SHANKAR MANDAVI Date: 2025.01.28 11:44:05 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:2347 NAFR WPS No. 6197 of 2021 1 - Ku. Shweta Ganwirey D/o Late Khemu Ram Ganwirey Aged About 36 Years R/o Village And Post - Shahavada, P.S. - Narharpur, Tahsil - Charama, District - Kanker (Chhattisgarh) 494336, District : Kanker, Chhattisgarh versus ... Petitioner 1 - State Of Chhattisgarh Through Secretary Panchayat And Rural Development Department, Mahanadi Bhawan, Atal Nagar, New Raipur, District Raipur (Chhattisgarh), District : Raipur, Chhattisgarh 2 - Chief Executive Officer, Jila Panchayat Kanker, District Kanker Chhattisgarh : (Chhattisgarh), Kanker, District 3 - Chief Executive Officer, Janpad Panchayat Antagarh, District Kanker (Chhattisgarh), District : Kanker, Chhattisgarh ... Respondent(s) (Cause-title taken from Case Information System) For Petitioner For State/Respondent(s) For Respondent No.3
Legal Reasoning
"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 abovementioned cases the 7 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, 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 then it 8 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 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 9 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 and in violation of the constitutional right of the servant." 9. Since Rule 5 and 7 of Rules 1999 have not been followed and further no opportunity of hearing was granted to the petitioner before passing impugned order I am of the view that the impugned order is not in accordance with law and is liable to be quashed. 10. Accordingly, the order is quashed, however liberty is granted to the respondents to initiate enquiry if so advised. 11. Accordingly, this petition is allowed. Ravi Mandavi Sd/- (Amitendra Kishore Prasad) Judge
Arguments
: Mr. K. N. Nande, Advocate : Ms. Nupur Trivedi, Panel Lawyer : Mr. Gurudev I Sharan, Advocate Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 14/01/2025 1. Heard Mr. K. N. Nande, learned counsel for the petitioner. Also 2 heard Ms. Nupur Trivedi, learned Panel Lawyer for the respondent/State and Mr. Gurudev I Sharan, learned counsel for the respondent No.3. 2. By way of this writ petition, the petitioners have prayed for following reliefs: “10.1. That this Hon’ble Court may kindly be pleased to quash this impugned order dated 10.06.2021 (P-1) passed by Res. No.3 in the interest of justice. 10.2. That this Hon’ble Court may also kind enough to quash the order dated 22.07.2014 (P-7), passed by the Res. No.3. 10.3. That this Hon’ble Court may be kind enough to direct the Res. No.3 to issue appointment order as sikha karmi grade 3 in favour of the petitioner. 10.4. Any other relief which this Hon'ble Court deem fit may in favour of the petitioner in the interest of justice.” 3. Learned counsel for the petitioner submits that the petitioner is challenging the order dated 10.6.2021 passed by the respondent No.3, where by the respondent has rejected the appeal filled by the petitioner. Earlier filled Writ Petition No. 224/2020 before this Hon'ble Court in which liberty was granted to file appropriate appeal before competent authority I.e. respondent No.3. As stated, the petitioner was appointed as Siksha Karmi, Grade III and posted at Middle School Kalgaon by order dated 20.06.2005 in which name of petitioner is mentioned at Serial No.43. Thereafter, the petitioner suffers serious illness and she was in medical leave from 2005 to 2007, which has been accepted after 3 presenting Medical Fitness Certificate. There after the petitioner continuously represented for her joining order before the respondent No.3, but no order was issued upto 27.07.2013 i.e. for last six years. Even the application and fitness certificate has been submitted before the respondent authority. At last the respondent No.3 has considered her application and issued an order dated 03.03.2014 where by the petitioner has been re- appointed in fresh and posted her at Primary School Tumasnar. Thereafter, the petitioner has submitted letter dated 23.08.2021 before the respondent No.3, for withdrawing her salary of last 5 months, which she has not been paid. Upon which the respondent No.3 has issued a letter to the petitioner for submitting presenting register and recommendation letter of B.E.O but it could not be submitted in stipulated time, therefore the respondent No.3 has rejected the same on 22.07.2014 without affording further time and notice. After that the petitioner continuously trying to contact the respondent No.3 so as to manage to clarify him and finally she submitted a letter dated 26.06.2020 granting permission to join her duties but the same has not been considered and finally rejected by order dated 10.06.2021. 4. Learned counsel for the petitioner submits that an stigmatic order has been passed against the petitioner and she has been removed from services, without giving her opportunity of hearing and without following due process of law, as such the order is required to be quashed. 5. On the other hand, learned State counsel opposed the argument 4 advanced by learned counsel for the petitioner and submitted that the petitioner has been given notice as well as opportunity to do the work in accordance with law, however, it has not been given heed by the petitioner, as such, the respondent authorities are not having other option to remove her from service, which is contractual in nature. It has been contended that in a contractual appointment, the petitioner is not required to be given opportunity of hearing, which is mentioned in the appointment order itself that he/she can be removed from service while giving one month’s prior notice or any emolument, as such, the order impugned has rightly been passed and nothing requires to be interfered with. 6. After hearing the counsel for the petitioner and the respondents it is apparent that the petitioner was a Shiksha Karmi Grade – III and vide order 20.06.2005 she was appointed, however the petitioner suffered with serious illness from 2005 to 2007 for which he has produced relevant application along with medical fitness certificate and she was continuously approaching the respondent No.3 for her joining but no order was issued upto 2013 however, lastly vide order dated 03.03.2014, the petitioner was reappointed as fresh and was posted at Primiary School, Tumasnar. When the petitioner filed application for her salary for last 5 months, it was not paid. The respondent No.3 has issued a letter to the petitioner for submitting presenting register and recommendation letter of Block Education Officer, but it could not be submitted in stipulated 5 time as such, the respondent No.3 has rejected the same. She has submitted a letter dated 26.06.2020 seeking permission to join her duties but it was not considered and rejected vide order dated 10.06.2021. Order dated 10.06.2021 is a stigmatic order passed by the respondent No.3, however before passing such stigmatic order no enquiry was conducted and she was also not granted opportunity of hearing. The petitioner was a Shiksha Karmi Grade – III and accordingly before passing any order for removal from service, due enquiry has not been envisaged under Rule 7 of Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (in short called Rules 1999) and without compliance of procedures under Rule 5 and 7 of the Rules, 1999, the impugned order of removal has been passed. Further, since it is a stigmatic order as such the respondents are under obligation to follow procedures and to give opportunity of hearing while issuing impugned order which has not been done. 7. Recently, in the matter of in the matter of Swati Priyadarshini 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 6 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. 8. 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 1957 SCC Dhingra v. OnLine SC 5: Union of India,