Kamlesh Kumar Sen Vs State of Chhattisgarh

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2024:CGHC:36253

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 1432 of 2020

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1 - Kamlesh Kumar Sen S/o Bhagwati Prasad Sen, Aged About 30 Years R/o Village Ambagarh Chowki, Rajnandgaon, District - Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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... Petitioner

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versus

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1 - State Of Chhattisgarh Through The Secretary, Agriculture Department, D. K. S. Bhawan, Mantralaya, Raipur, District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Director, Agriculture, Directorate Agriculture, Sector 19, Kotara Bhantha, Naya Raipur, District - Raipur Chhattisgarh.

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... Respondents For Petitioner : Mr. Prateek Sharma, Advocate For Respondent : Mr. Sabyasachi Choubey, Panel Lawyer

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({Hon'ble Shri Justice Sachin Singh Rajput})

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Order on Board

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17/09/2024

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The instant petition has been filed seeking following relief:-

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10.1 that, this Hon’ble Court may kindly be pleased to set aside the impugned order dated 17.01.2020 ( Annexure P/1) with all consequential benefits including salary and seniority to the petitioner in the interest of justice.

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10.2 That, any other relief/ order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.

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Facts of the case in nutshell are that the respondent/ Director, Agriculture, Directorate Agriculture issued an advertisement on 29.10.2015 for selection and appointment in various posts including the post of Rural Agriculture Extension Officer. The said advertisement was issued as a special drive to fill up the backlog post of differently able category. The petitioner applied for the said post in the differently able category and after successful completing the competitive examination he was selected and appointed on the post of Rural Agriculture Extension Officer and posted under the office of Deputy Director Agriculture, Kabirdham vide order dated 23.05.2016 which is filed as Annexure P/4 on 2 years probation period. As per the condition prescribed in the appointment, the candidates were required to produce disability certificate and it was prescribed that if any information provided by the candidate is found incorrect or any certificate is found false and fabricated, then the appointment order shall be canceled. It is also reflected from the pleadings that the petitioner successfully completed his probation period and vide its order dated 31.12.2019, probation period of the petitioner came to an end with effect from 09.06.2018 Annexure P-5. While making the application and during course of selection process on appointment, the petitioner submitted a medical certificate of District Medical Board, Rajnandgaon certifying the petitioner to be 40% temporary differently able Annexure P-3. After 2 years and 3 months, the petitioner was directed to appear before the District Medical Board, Kabirdham regarding his differently ability and upon examination he was found to having 20% temporary differently ability. He was further referred to Divisional Medical Board on 11.05.2018 and it was found that the petitioner is only having 10% temporary differently ability which is likely to improve with exercise in 3 months. Thereafter a

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show cause notice dated 05.08.2019 Annexure P-7 was issued to the petitioner why the services of the petitioner should not be terminated. The reply was filed by the petitioner on 19.08.2019 Annexure P-8. The reply was considered by the respondents and after due satisfaction, the probation of the petitioner was terminated/came to an end. However, within a short span of period of 20 days, the impugned order dated 17.01.2020 was issued and the petitioner was found guilty of placing false/forged certificate Annexure P-1 and his services were terminated which led to filing of this writ petition.

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Return has been filed and it has been stated in the return that the petitioner was not holding the requisite different disability as required under Right to Persons with Disability Act, 2016. Since the petitioner was not eligible to be appointed for differently able category, the impugned order was passed.

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Learned counsel for the petitioner submits that the petitioner’s probation period has come to an end and he has acquired status of permanent employee. He submits that the petitioner is protected under Article 311 (2) of the Constitution of India and the impugned order cannot be passed without conducting a full fledged departmental enquiry. He submits that the petitioner is qualified and gave the disability certificate which was duly considered and thereafter only the probation period of the petitioner was terminated/ came to an end. The respondents committed an error of law in passing the impugned order Annexure P-1, therefore, the relief as claimed by the petitioner may be granted.

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Opposing the submissions Mr. Choubey submits that as per requirement of law under the Act of 2016, the petitioner was not holding the requisite disability entitled him to appointed on the reserved post of differently able category. He submits that once this fact came into the surface, the impugned order was passed, therefore, there is no merit in this writ petition and liable to be rejected.

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Heard learned counsel for the parties and perused the record.

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This Court at this stage is not inclined to go into the factual aspect of the matter as to whether the petitioner is holding the requisite disability certificate in consonance

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with the Act of 2016 whether the petitioner is entitled to be appointed on the basis of such certificate under the differently able category. The crux of the case is that whether the petitioner was acquired the status of permanent employee after his probation period came to an end, can be dismissed/removed from service without holding the departmental enquiry and as to whether the petitioner is protected under the provisions of Article 311 of Constitution of India.

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For ready reference, the provision contained Article 311 of Constitution of India is quoted below:-

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“311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

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(1)No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a Slate shall be dismissed or removed by an authority subordinate to that by which he was appointed.

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(2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against hi m and given a reasonable opportunity of being heard in respect of those charges;Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:Provided further that this clause shall not apply--

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(a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to hi s conviction on a criminal charge; or

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(b)where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

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(c)where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

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(3)If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the

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decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

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From bare reading of Article 311 of Constitution of India, it is crystal clear that it gives safety/ security of the tenure to the Government servant and provides constitutional protection to the persons employed in civil capacity under union and States against Arbitrary dismissal, removal and reduction in rank. The protection can be summarized in the following manner:-

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A. against removal or dismissal by an authority subordinate to that by which the employee was appointed and

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B. against dismissal , removal or reduction in rank without giving the employee her reasonable opportunity of being heard in an enquiry without complying with the principles of natural justice.

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Article 311 (2) of Constitution of India talks about an enquiry is required to be conducted before the employee is dismissed or reduced in rank and it should have been given a reasonable opportunity of being heard in respect of the charges which have been informed to him in the enquiry. It also indicates that the employee must be given a reasonable opportunity of being heard in respect of the charges made against him/ her.

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As stated above, admittedly there is nothing on record to suggest that before passing the impugned order, any departmental enquiry was conducted by the respondent. It could not be disputed that the probation of the petitioner has come to an end and he has attained the status of a permanent employee. The Division Bench of this Court in the case of Krishna Kumar Kosaria Vs. State of Chhattisgarh reported in 2023 (4) C.G.L. J. 541 (DB) = 2023 SCC OnLine Chh 1646 held in paragraphs 22,23,24,25, 26 & 27 onward as under:-

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22. The scope of the words “dismissed” and “removed” employed under Article 311 of the Constitution of India came up for consideration before the Constitution Bench of the Supreme Court in the matter of Moti Ram Dheka v.General Manager, North Easter Frontier Railway AIR 1964 SC 600 in which Subba Rao, J., in his concurring yet separate opinion, has

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expressed that the said words mean nothing more or less than the termination of the services of a person's office. The effect of dismissal or removal of one from his office is to discharge him from that office i.e. to bring about cessation of service. Thus, the said words comprehend every termination of service of a Government servant. Article 311(2) in an effect therefore lays down that before the services of a Government servant are so terminated, he must be given a reasonable opportunity of showing cause against such a termination. Their Lordships further held that there is no decision for placing any limitation on the said expression. The attempt to imply the said limitation is neither warranted by the expressions used in the Article or by the reason given. If such limitations are imported, then it would lead to an extraordinary result that a Government servant, which has been guilty of misconduct would be entitled to a reasonable opportunity, whereas an honest Government servant could be dismissed without any such protection. A Government servant holding a substantive lien to a permanent post cannot be removed from the said post without affording a reasonable opportunity, as is contemplated under Article 311(2) of the Constitution of India. It is therefore evident that the right held by a Government employee to hold a post cannot be interfered lightly in case any such proceeding is required to be undertaken, necessary care and caution has to be ensured by the Government, which in order to safeguard the interest of a Government employee, as is contemplated under Article 311(2) of the Constitution of India. It has been observed as under in paragraphs 67 and 68:—

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“67. Therefore, whether the natural and dictionary meaning of the words “dismissal” and “removal” were adopted or the limited meanings given to those words by R. 49 were accepted, the result, so far as a permanent employee was concerned would be the same, namely, that in the case of termination of services of a Government servant outside the three categories mentioned in the explanation, it would be dismissal or removal within the meaning of Art. 311 of the Constitution with the difference that in the former the dismissed servant would not be disqualified from future employment and in the latter ordinarily he would be disqualified from such employment.

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68. If so, it follows that if the services of a permanent servant, which fall outside the three categories mentioned in the explanation, were terminated, he would be entitled to protection under Art. 311 (2) of the Constitution.”

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23.The petitioner was a permanent Government servant. He had a right to his substantive rank. The Supreme Court in the matter of Parshotam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 has held that mere termination of service, without more, of such an employee, would constitute

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his 'removal' or 'dismissal' from service attracting Article 311(2) of the Constitution of India. As such, the constitutional protection and safeguard guaranteed under Article 311(2) cannot be taken away by a side wind without following the provisions contained under Article 311(2) of the Constitution of India.

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24. In the matter of Jai Shanker v. State of Rajasthan AIR 1966 SC 492 , the question that fell for consideration before the Constitution Bench of the Supreme Court was, whether the provisions contained under the Jodhpur Service Regulations was sufficient to enable the Government to remove a person from service without giving him an opportunity of showing cause against that punishment, if any, and it was answered in negative holding that the regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause and the Government cannot order a person to be discharged from service without at least telling him that they propose to remove him and without giving him an opportunity of showing cause as to why he should not be removed. It has further been observed as under:—

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“6. … A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here.

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7. In our judgment, Jai Shankar was entitled to an opportunity to show cause against the proposed removal from service on his overstaying his leave and as no such opportunity was given to him, his removal from service was illegal. He is entitled to this declaration.”

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25. Similarly, in the matter of Deokinandan Prasad Vs. State of Bihar (1971) 2 SCC 330 , another Constitution Bench of the Supreme Court has held that an order of termination of service passed under Rule 76 of the Bihar Service Code on account of the servant's continuous absence for five years without giving an opportunity to the servant under Article 311(2) of the Constitution of India would be invalid.

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26. The aforesaid principles of law laid down in Jai Shanker (Supra) and Deokinandan Prasad (Supra) have been followed with approval by their Lordships of the Supreme Court in the matter of State of Assam v. Akshaya Kumar Deb reported in (1975) 4 SCC 339 wherein the question that required consideration was as under:-

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“7. The only question that falls for determination is whether the services of the respondent could be terminated under Rule 18 of the Assam Fundamental and Subsidiary Rules, without complying with the procedure prescribed in Article 311(2) of the Constitution of India?”

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Relying upon the decisions rendered in Jai Shanker (supra) and Deokinandan Prasad (supra), their Lordships answered the aforesaid question as under :-

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“14. Now in the case in hand, the impugned order was made against the consent of the respondent who has throughout been willing to continue in service. His case is that after the expiry of his leave he reported for duty and produced a medical certificate of his fitness, but he was arbitrarily and maliciously not allowed to work after September 13, 1956. Indeed his contention is that in these circumstances, F.R. 18 would not be attracted. Apart from the constitutional requirement of Article 311(2) natural justice and fairplay required that he should have been given a chance to substantiate his contention. The fact remains that given an opportunity, he would have controverted seriously the circumstances of his absence from duty on the basis of which the impugned action has been taken.

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17. Even if it is assumed that termination under F.R. 18 does not cause forfeiture of benefits already earned such as pension, etc., then also that will not, by itself, take it out of the category of 'removal' as envisaged by Article 311(2). The respondent was a permanent government servant. He had a right to his substantive rank. According to the test laid down by this Court in Parshotam Lal Dhingra's case, the mere termination of service, without more, of such an employee would constitute his 'removal' or 'dismissal' from service, attracting Article 311(2). From the constitutional standpoint, therefore, the impugned termination of service will not cease to be 'removal' from service merely because it is described or declared in the phraseology of F.R. 18 as a 'cessation' of service. The constitutional protection guaranteed by Article 311(2) cannot be taken away “in this manner by a side wind”.

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21. The above enunciation applies to the facts of the present case. Excepting the length of the period of absence, the basic features of Regulation 13 in Jai Shanker's case (supra) were very similar to those of F.R. 18 now under consideration. The words “should be considered to have sacrificed his appointment” in Regulation 13, substantially correspond to the words “servant ceases to be in Government employ” in F.R. 18. Further the import and effect of the phrase “may only be reinstated with the sanction of the competent authority” in the regulation,

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is largely the same as that of the opening clause “unless the Provincial Government, in view of the special circumstances of the case shall otherwise determine” in F.R. 18. The difference between the regulation and F.R. 18 as to the length of absence from duty prescribed as a condition precedent for the attraction of the respective provision, is a distinction without a difference in principle. The consequence of absence, though for different periods, envisaged by both the provisions, is the same, viz., “sacrifice” or “cessation” of the absentee's service. The present case will thus be governed by the ratio of Jai Shanker's case.

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24. In view of the above approach, it is not thought necessary to express any final opinion as to the constitutional validity of Rule 18 of Assam Fundamental and Subsidiary Rules. Although couched in ambiguous and unhappy language, the rule is capable of being interpreted and worked consistently with the requirement of Article 311(2) of the Constitution. This, however, should not lull the Government into a sense of complacency and belief that all is well with the rule. The sooner it is suitably amended, the better will it be in the interest of all concerned.

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(Emphasis Supplied)

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12. In light of above judgments reverting back to the facts of the case, it is apparent that a show cause notice was issued to the petitioner with regard to disability certificate. It is also apparent that after due satisfaction, the probation period of the petitioner came to an end and attained the status of a permanent employee. There is nothing on record to suggest that any department enquiry was conducted against the petitioner before passing the impugned order. In light of settled position of law as enumerated and the judgments relied upon in previous paragraphs, the impugned order dated 17.01.2020 (Annexure P-1) cannot sustain and it is liable to be and is hereby set aside. The petitioner is reinstated to his service. Nothing is brought on record as to whether during the period from his termination till today the petitioner was not employed or is not earning anything. Therefore, this Court is not inclined to pass any order with regard to back wages.

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13. The writ petition thus allowed.

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Sd/-

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({Sachin Singh Rajput})

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PARUL MITTAL

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Parul Digitally signed by PARUL MITTAL Date: 2024.09.27 10:37:49 +0530

Kamlesh Kumar Sen v. State of Chhattisgarh

Case brief

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Kamlesh Kumar Sen v. State of Chhattisgarh

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