Allowed

Visham Patel v. State Of Chhattisgarh

Chhattisgarh HC19 Dec 2023WPS/2098/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing an order removing a Panchayat Secretary from service. The court set aside the removal for violating natural justice and failing to follow Rule 7 of the relevant rules, despite the petitioner admitting most charges. It directed reinstatement with 30% back wages and granted liberty for fresh proceedings.

What did the court decide?

Order of removal dated 03/03/2016 quashed; petitioner directed to be reinstated with 30% back wages; liberty granted for fresh action under Rule 7.

Visham Patel Vs State Of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 2098 of 2016

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Order reserved on 22/09/2023

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Order passed on 19/12/2023

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Visham Patel, S/o Late Buturam Patel, Aged About 51 Years, R/o Village Narayanpur, Tahsil Bhanupratappur, District U.B. Kanker Chhattisgarh.

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---- Petitioner

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Versus

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State Of Chhattisgarh, Through Its Secretary, Panchayat And Social Welfare Department, Mantralaya, Naya Raipur, District Raipur Chhattisgarh

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Director, Panchayat, Sanchanalaya Indravati Bhawan, Naya Raipur District Raipur Chhattisgarh

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Collector, District U.B. Kanker Chhattisgarh.

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Chief Executive Officer, Zila Panchayat, District U.B. Kanker Chhattisgarh

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Chief Executive Officer, Janpad Panchayat, Bhanupratappur, District U.B. Kanker Chhattisgarh.

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Gram Panchayat, Through Its Secretary Gram Panchayat, Narayanpur, Janpad Panchayat, Bhanupratappur, District U.B. Kanker Chhattisgarh

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---- Respondents

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For Petitioner : Mr. Parag Kotecha, Advocate For Respondent/State : Mr. Anshuman Shrivastava, P.L. For Respondent No.5. : Mr. Rajnish Singh Baghel, Advocate

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Hon'ble Smt. Justice Rajani Dubey

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C.A.V. ORDER

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This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking for the following reliefs:

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“(i) T he Hon'ble Court may kindly be please to quash/set-aside an order dated 03/03/2016 (Annexure P/3) issued by the respondent no. 4.

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(ii) The Hon'ble Court may kindly be please to direct the respondents to reinstate the petitioner alongwith all back wages and all other consequential and other benefit to the petitioner.

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(iii) The Hon'ble Court may kindly be please to direct the respondents to produce the entire record pertaining to petitioner case.

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(iv) Any other relief which this Hon'ble Court deems fit and proper under the facts and circumstances of the case may also be passed in favour of the petitioner and the cost of the petition may be awarded in favour of the petitioner.”

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Brief facts of the case as projected by the petitioner are that,

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the petitioner was appointed as a Panchayat Karmi and thereafter was appointed as a Secretary in the year 1995. The petitioner tried to satisfy the respondent authority and had worked with full sincerity and honesty to the utmost satisfaction. The petitioner worked on the post near about 20 year, with an unblemished service carrier. All of sudden a false complaint was made and petitioner was suspended on 02/04/2015. During the period of the suspension, the

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respondent not given the subsistence allowance to the petitioner, which amounts to violation of the natural justice and only on this ground alone, the order is liable to be set aside.

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Thereafter, an explanation was called from the petitioner by the respondent no. 4 on 29/12/2015, which was an enquiry behind the back of the petitioner and no opportunity was afforded to the petitioner to cross-examine the witnesses and further no show cause notice was given, nor any charge-sheet was supplied to the petitioner as per the requirement of law. Further proper and reasonable time to reply to the enquiry report was also not afforded to the petitioner. In the enquiry report, the charges no. 12 and 14 was also proved that too behind the back of the petitioner and directly a notice was given, seeking explanation from the petitioner.

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The petitioner filed the reply to the enquiry report and pleaded innocent and further stated that nothing wrong had been done by the petitioner. Thereafter, no enquiry whatsoever was conducted, no charge-sheet was served after preliminary enquiry, no opportunity was granted to the petitioner to examine or cross examine the witnesses and in the utter violation of principal of natural justice and in gross violation of Rule 7 of Panchayat Service (Discipline and Appeal) Rules 1999 (herein after referred as Rules 1999) imposed the major penalty of removal of the petitioner form service vide order

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dated 03/03/2016 by the respondent no.4.

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The petitioner had been removed from the post of Panchayat Secretary and appointing authority of the Panchayat Secretary was the Collector and now as per the petitioner's knowledge, the power was given to the Director/Deputy Director, and that respondent no.4 is not the appointing authority of the petitioner , hence this petition.

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Learned counsel for the petitioner submits that t he order of respondent authority removing the petitioner from service is illegal, unsustainable, unconstitutional, arbitrary, passed with a malafide intention and with an ulterior motive and hence liable to be set-aside. He submits that the act and order of removal passed by respondent no.4 is illegal, arbitrary and discriminatory, unconstitutional, and against the principal of natural justice and with the malafide intention. He further submits that illegally and with an ulterior motive the respondent no. 4 removed the petitioner from service without holding any enquiry.

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The act and attitude of the respondent authority are that they are trying to frustrate the opportunity of the petitioner for appointment. No reasonable, fair opportunity has been given to the petitioner, before passing the order of removal. No departmental enquiry had been conducted, nor any opportunity has been granted to the petitioner for producing his defence on

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the allegation made by the respondents. The petitioner had been removed from the post of Panchayat Secretary and appointing authority of the Panchayat Secretary was Collector and now as per the petitioner's knowledge, the power was given to the Director/Deputy Director, and that the respondent no.4 is not the appointing authority of the petitioner, hence the order is without jurisdiction and liable to be set aside.

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As per the Appendix of the Rules 1999, the respondent no. 4 has no power to impose the Major Penalty and only General Body can impose the major penalty. The order of the respondent in removing the petitioner from service having the civil consequence, without following the principal of natural justice, the order is bad and liable to be set-aside. He submits that the livelihood of the petitioner had been taken away by respondents authority that too without complying with the provision of natural justice and without following the Rule 7 of Rules 1999. After removal the petitioner, he is unemployed and is at the verge of starvation. When the appointment of the petitioner had been done after following the due process of law, the service of the petitioner cannot be terminated in a manner which had been done by the respondent no.4. Before passing the order the respondent no.4 ought to have applied its mind judiciously.

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The removal from the service with stigma and without holding

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the departmental enquiry and the opportunity of hearing is bad, that the order of the respondent no.4 is in utter violation to the provision of Article 311 of the Constitution of India. Nonpayment of subsistence allowance to the petitioner, during the suspension period, amount to denial of the proper defence and that is in great violation of the principal of natural justice and hence on this ground also the order dated 03/03/2016 is liable to be set aside. In support of his contention, counsel for the petitioner placed reliance on the judgment passed by the Hon’ble Supreme Court in the case of “ HARDWARI LAL V. STATE OF U.P. AND OTHERS ”, reported in AIR 2000 Supreme Court 277 and the order passed by this Court in the case of “DHALURAM KOSARIA V. STATE OF CHHATTISGARH AND OTHERS” WP No. 2859/2003 .

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Learned counsel appearing for the respondents No.1 to 3/State strongly opposed the prayer of the petitioner and submits that the order dated 03/03/2016 (Annexure P/1) of the Chief Executive Officer, Zila Panchayat, North Bastar Kanker is an appealable order against which an appeal under Rule 15 of the Panchayat Services (Discipline and Appeal) Rules, 1999 lies to the Commissioner. The petitioner without availing that remedy, has directly come to this Court, therefore, on the ground of availability of efficacious statutory alternative remedy, the instant petition is not maintainable. A departmental proceeding

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had been initiated against the petitioner. The petitioner has admitted all charges against him as per Annexure R/3. The petitioner, after being suspended, did not give his joining in the office of the Chief Executive Officer, Janpad Panchayat Bhanupratappur and therefore, he cannot be paid the subsistence allowance. The petitioner has appeared in the proceedings and participated in it and admitted all the charges against him. As such there is no violation of Rule 7 of the Rules, 1999. On the basis of the admission made by the petitioner.

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Learned counsel appearing for the respondents No. 5 & 6 also strongly opposed the prayer of the petitioner and submits that alternative remedy under Rule 15 of the Panchayat Services (Discipline and Appeal) Rules, 1999 lies to the Commissioner, but the petitioner without availing that remedy, has directly come to this Court and therefore, the petition is liable to be dismissed on this ground alone. The petitioner was suspended due to gross negligence of implanting the MNREGA project and Swakcha Bharat Mission, therefore, he suspended vide Annexure R/5-1. The petitioner has been supplied with chargesheet on 01/05/2015 (Annexure R/5-2). After receiving of charge-sheet, the petitioner has submitted an application for hearing on 02/06/2015 via Annexure R/5-3 and admitted all of the imputation of misconduct and charges against him as per

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Annexure R/5-3. Thus, it is clear that the petitioner has appeared in the proceedings and participated in it. The petitioner has admitted all the charges against him, as such there is no violation of Rule 7 of the Rules, 1999 on the basis of admission made by the petitioner. On the basis of the said admission by the petitioner, inquiry report has been prepared by the Inquiry Officer and was submitted before the competent authority i.e. Chief Executive officer, Zila Panchayat for passing appropriate order. The Chief Executive Officer, Zila Panchayat after going through the charge-sheet and the admission of the petitioner, has passed the order of removal from services not disqualifying for employment.

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Before imposition of penalty, the petitioner was again noticed as per the rules and petitioner has responded to that notice also. As per guidelines dated 29/08/2008, the Disciplinary Authority of the petitioner is now the Chief Executive Officer, Zila Panchayat as per clause 7 of the guidelines (Annexure R/5-4). As there are separate guidelines issued by the State under the powers granted to it under Section 70 and Section 69 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993. It is the guideline which will hold the field in the case of the petitioner. The procedure to be followed in disciplinary inquiry would be as per the Rules, 1999, when the guidelines itself declare the Chief Executive Officer, Zila Panchayat as

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disciplinary authority, other part of the Rules, 1999 will not apply, therefore, this petition is without any merit and liable to be dismissed.

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I have heard the contentions put forth by learned counsel for the parties and perused the material available on the record.

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According to the respondents, the petitioner has admitted all charges as per Annexure R/3. Annexure R/3 is a copy of notice, which is as under:

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“आररोप ्ቅममाሰक-2

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आररोप ममाሰक-2 कक अाሰतररतलरमयम रयम आररोप साሰबाሰधधित ननिलाሰनबत सनचिव निक स्ववीकमर नकयम हहै।

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आररोप ्ቅममाሰक-3

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आररोप ममाሰक-3 कक अाሰतररतलरमयम रयम आररोप साሰबाሰधधित ननिलाሰनबत सनचिव निक स्ववीकमर नकयम हहै।

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आररोप ्ቅममाሰक- 4

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आररोप ममाሰक-4 कक अाሰतररत लरमयम रयम आररोप करो साሰबाሰधधित ननिलाሰनबत सनचिव निक स्ववीकमर नकयम हहै।

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आररोप ्ቅममाሰक- 5

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आररोप ममाሰक-5 कक अाሰतररत लरमयम रयम आररोप करो साሰबाሰधधित ननिलाሰनबत सनचिव निक स्ववीकमर नकयम हहै।

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आररोप ्ቅममाሰक- 6

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आररोप ममाሰक-6 कक अाሰतररतलरमयम रयम आररोप करो साሰबाሰधधित ननिलाሰनबत सनचिव निक अपनिवी रलतवी स्ववीकमर कक हहै।

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आररोप ्ቅममाሰक- 7

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आररोप ममाሰक-7 करो साሰबाሰधधित ननिलाሰनबत सनचिव निक अपनिवी रलतवी स्ववीकमर कक हहै।

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आररोप ्ቅममाሰक- 8

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आररोप ममाሰक-8 करो साሰबाሰधधित ननिलाሰनबत सनचिव निक अपनिवी रलतवी स्ववीकमर कक हहै।

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आररोप ्ቅममाሰक- 9

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आररोप ममाሰक-9 करो साሰबाሰधधित ननिलाሰनबत सनचिव निक स्ववीकमर नकयम हहै।

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आररोप ्ቅममाሰक- 10

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आररोप ्ቅममाሰक-10 करो साሰबाሰधधित ननिलाሰनबत सनचिव निक अपनिवी रलतवी स्ववीकमर कक हहै।

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आररोप ्ቅममाሰक- 11

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आररोप ्ቅममाሰक-11 करो साሰबाሰधधित ननिलाሰनबत सनचिव निक अपनिवी रलतवी स्ववीकमर कक हहै।

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आररोप ्ቅममाሰक- 12

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आररोप ्ቅममाሰक-12 करो साሰबाሰधधित ननिलाሰनबत सनचिव निक स्ववीकमर नकयम हहै।

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आररोप ्ቅममाሰक- 13

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आररोप ्ቅममाሰक-13 करो साሰबाሰधधित ननिलाሰनबत सनचिव निक अपनिवी रलतवी स्ववीकमर कक हहै।

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आररोप ्ቅममाሰक- 14

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आररोप ममाሰक-14 varxZr vkaxuckM+h Hkou dqavkikuh fifyaFk yscy rd gqvk gSA vkaxuckM+h Hkou iSokjh th.kkZs)kj dk dk;Z ugha gqvk gSA vkaxuckM+h Hkou fdukjh th.kksZ)kj dk dk;Z Hkh ugha gqvk gSA vkaxuckM+h Hkou dqvkaikuh th.kkZs)kj iw.kZ gks pqxk gSA iqfy;k fuekZ.k dqavkikuh ls 'kkgdV~Vk ekxZ fifyaFk iw.kZ gks pqdk gSA lkeqnkf;d Hkou fdukjh fuekZ.k gsrq 'ks”k gSA”

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In the inquiry report Annexure P/1 on admission of petitioner all

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charges were found proved against the petitioner . It is clear from this inquiry report that this inquiry report was prepared on admission of the petitioner . No documents were exhibited by the Inquiry Officer and no witnesses were examined by the Inquiry Officer. In his reply dated 02.06.2015, the petitioner has clearly stated that some work was started. Looking to the explanation of the petitioner , it is clear that the petitioner did not admit whole charges. He explained some charges, but the Inquiry Officer prepared the inquiry report on the basis of his admission, which is not in accordance with law.

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This Court in the matter of “ Dhaluram Kosaria ” (supra) in para 17 to 20 and 23 held as under:

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“17. The Supreme Court in the case of State of Punjab and Ors. v. Balbir Singh (2004) 11 SCC 743 has observed in para 7, as under:

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7. Thus the principle that in order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the "object of the enquiry”. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such

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termination would be termination simpliciter and not punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa v. Ram Narayan Das. It was held that one should look into "object or purpose of the enquiry" and not merely hold the termination to be punitive merely because of an antecedent enquiry. Whether it (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry....”

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18. In the instant case the facts of the case clearly establish that the termination of the services of the Petitioner was not a termination simpliciter but on the basis of the alleged irregularities and misconduct committed by the Petitioner.

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19. It is further admitted by all the parties that the procedure for holding an enquiry is prescribed under Rule 7 of the Rules 1999 for imposition of major penalty, that has not been followed. Hence, the termination is bad and vitiated on the ground of noncompliance of the statutory provisions and denial of the principles of natural justice. It amounts to infraction of not only the provisions of Rule 7 of the Rules 1999 but the provisions of Article 311(2) of the Constitution of India also. The order is in fact penal in nature having civil consequences and as such the elaborate provision of Rule 7 of the Rules 1999 was applicable in the

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case of the Petitioner before terminating his services.

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20. With regard to the availability of the alternative remedy it is well settled that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of the compulsion. In the present case the facts are not disputed. The entire case rests on the infraction of constitutional protection prescribed under Article 311(2) of the Constitution of India and non-application of the statutory provisions, as such the alternative remedy may not be a proper forum. The Supreme Court in the case of Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd and Ors. (2003) 2 SCC 107 in para 7 has held as under:

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“suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction of the vires of an Act is challenged....

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23. On the question of back wages, no foundation has been laid to establish the fact that whether the Petitioner was gainfully

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employed elsewhere or not during this period. Even otherwise keeping in view that the termination order has been vitiated not on merit but on account of non-compliance of the statutory provisions before terminating the services of the Petitioner, 30% back wages would be sufficient in the interest of justice.”

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In this case also, it is clear from the inquiry report and other documents that provisions of Rule 7 of Rules, 1999 have not been followed properly. Looking to the guidelines of Hon'ble Apex Court and this Court, this petition is allowed. The order of termination dated 03.03.2016 (Annexure P/3) is set-aside. In the light of para 23 of this Court's order, it is directed that the petitioner is entitled for 30% back wages. However, liberty is granted to the respondents to take appropriate action against the petitioner as per Rule 7 of Rules, 1999, if they so desire.

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With the aforesaid observations and directions, the present writ petition stands allowed and disposed of.

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Sd/- (Rajani Dubey) JUDGE

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ved

Visham Patel v. State Of Chhattisgarh

Case brief

What is this about?

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Visham Patel v. State Of Chhattisgarh

Case brief

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