Partly allowed

Om Prakash v. State Of Chhattisgarh and Ors.

Chhattisgarh HC18 Apr 2024WPS/1786/2014

Case brief

AI extract

What is this about?

The High Court held that the petitioner was removed from service without a mandatory inquiry required by the disciplinary rules, violating principles of natural justice. The court partially allowed the appeal, directing the appellant to file a statutory appeal before the State Government.

What did the court decide?

The appeal is partly allowed; the appellant is at liberty to prefer an appeal to the State Government under Rule 3 of Chhattisgarh Panchayats (Appeal and Revision) Rules 1995 within 30 days.

Om Prakash Vs State Of Chhattisgarh and Ors. — Service and Employment | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 1786 of 2014

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Om Prakash S/o Shri Bartu Ram, Aged About 31 Years R/o Village Devsarakala, Post - Rehda, Police Station and Block - Shankargarh, Civil and Revenue Distt. Balrampur, Ramanujganj Chhattisgarh ---

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Petitioner

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Versus

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1 - State of Chhattisgarh through the Secretary, Department of Panchayat and Rural Development, New Mantralaya, Mahanadi - Bhawan New Raipur Distt. Raipur Chhattisgarh

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2 - Commissioner, Surguja Division, Ambikapur, P.S. Ambikapur, Civil And Revenue Distt. Surguja (Ambikapur), Chhattisgarh

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3 - The Collector Surguja, P.S. Ambikapur, Civil And Revenue Distt. Surguja (Ambikapur), Chhattisgarh

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4 - The Chief Executive Officer Janpad Panchayat Shankargarh, P.S. Ambikapur, Civil and Revenue Distt. Surguja (Ambikapur), Chhattisgarh --- Respondents

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For Petitioner	Mr. Shreyansh Agrawal, Advocate
For the Sate/R-1 toR-3	Mr. Rajkumar Gupta, Addl. Advocate General
For respondent no.4	Ms. Chetna Sharma, Advocate on behalf of Mr. Rajnish Singh Baghel, Advocate

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Hon'ble Mr. Justice Goutam Bhaduri, Judge

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Order on Board (19^th April, 2024)

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The case of the petitioner is that he was appointed as Shiksha Karmi Grade-III on 05.06.2006 (Annexure P-4) as per the Chhattisgarh Panchayat Shiksha Karmi Recruitment and Conditions of Service Rules, 1997 (hereinafter referred to as Rules of 1997). Few of the candidates’ services were regularized in the year 2010 by order dated 30^th August, 2010 (Annexure P-5) wherein the name of the petitioners appears at Serial No.56. According to the petitioner, according to Rule

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10 Rules 1997, the services of Shiksha Karmis whose services were not confirmed shall be liable to be terminated at any time by one month’s notice or on payment of one month’s pay. Further the petitioner submits that his services were regularized in the year 2010. It has been further contended that few of the people who were not selected challenged the selection list before the High Court. The petitioner was not a party in that. The High Court by its order dated 11.02.2008 passed in WPS No.856 of 2008 had directed the concerned authority to examine the issue and pass an appropriate order. Para 7 is relevant and reproduced hereunder :

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“Be that as it may, the Collector, Surguja is directed to examine the entire issue and pass an appropriate order in accordance with rules, as expeditiously as possible.”

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Thereafter, the petitioner along with others was removed by order dated 04.01.2012 Ex.P-6. Eventually the order of termination which affirmed by the Collector was challenged before the Commissioner and the Commissioner by its order dated 11.06.2013 (Annexure P-7) set aside the order of Collector upholding the removal of service. However, at para 7, the Commissioner observed as under :

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vr,o mijksDr rF;ksa ds vk/kkj ij vihykFkhZ dh vihy Lohdkj dj fuEu U;k;ky; dk vkyksP; vkns’k fnukad 28-11-2011 fof/k ,oa izfØ;k ds foijhr gksus ls fujLr fd;k tkrk gSA v/khuLFk U;k;ky; dysDVj iqu% tkap lfefr dk xBu djsaxs rFkk tkap lfefr }kjk izLrqr izfrosnu ds vk/kkj ij fu;ekuqlkj dk;Zokgh djsaxsA vihykFkhZ dh vihy Lohdkj dh tkrh gSA

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It is contended by the petitioner that pursuant to such aforesaid observation, some enquiry committee was constituted and behind the back of petitioner, the enquiry was conducted and the order impugned

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Annexure P-1 was passed on 30.07.2013 and on that basis, the removal order was passed on 04.03.2014 by Annexure P-2.

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Learned counsel for the appellant submits that for imposing major penalties, the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules 1999 prescribes specified procedure and removal from service which is contemplated under Rule 5(b)(vi) cannot be done without there being enquiry as per Rule 7. He would therefore submit that writ petition would lie before the High Court as no hearing was afforded to the petitioner. He prays that accordingly the removal order Annexure P-2 be set aside.

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Per contra, learned counsel for the respondents 1 to 3 would submit that the appointment itself was bad in law as certain rules and procedures were not followed. He would submit that pursuant to direction issued by the Commissioner, the enquiry committee was formed and after due enquiry it was found that the appointment of petitioner was illegal. Consequently the services were terminated as the appointment itself was dehorse the rules. It is further submitted that the petitioner himself has contended that other people have been appointed as per Annexure P-8 on 19.12.2013 and if the petition is allowed then it will affect the persons who have been appointed, therefore, no order can be passed in his favour.

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I have heard learned counsel for the parties. As per the Panchayat Raj Adhiniyam, 1993 the petitioner was appointed on 05.06.2006 as Shiksha Karmi Grade III. His services are governed by Chhattisgarh Panchayat Shiksha Karmi Rules 1997. Before this Court no facts exist as to how such initial appointment was made nor it has been placed on record by the respondents. Be that as it may, the services

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of the petitioner were regularized by order dated Annexure P-5 on 13.08.2010, subsequently some writ petition was filed by the person who was not selected and this Court in WPS No.856/2008 (Annexure P-9) directed the Collector Sarguja to examine the entire issue and pass an appropriate order in accordance with Rules as expeditiously as possible. Pursuant thereto, it appears from record that the services of the petitioner along with others was removed by Annexure P-6 on 04.01.2012. The record contains another order (Annexure P- 7) which is the order of Commissioner. Reading of it would show that the said removal order was subject of challenge and the commissioner though set aside the order of termination but directed the Collector to to reconstitute the enquiry committee and then proceed in accordance with the report given by the said Committee. Annexure P-1 which is on record would show that pursuant to such direction, certain enquiry was directed and removal of orders were passed for the persons who were appointed on 30.07.2013. Thereafter, on the basis of that report, removal order in respect of the petitioner was passed by Annexure P- 2 on 04.03.2014.

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A perusal of the return of the respondents would show that no enquiry was conducted before inflicting major penalty. The petitioner since was a member of Panchayat Services as per the rules of Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999, section (2)(f), the major penalties are contemplated under Rule 5(b)(vi) for removal and in order to inflict such major penalty, reading of Rule 7 in its entirety contemplates that without any enquiry, the major penalties cannot be inflicted. We went through the return of the State/respondent. This Court does not satisfy the fact that whether the enquiry was conducted in respect of the petitioner or not.

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Therefore, prima facie, it appears without there being an enquiry and without giving opportunity of hearing to the petitioner, dehors the rules the petitioner was inflicted with major penalty of removal from service. The return filed by the State and the documents annexed thereto would categorically establish the fact that no opportunity of hearing was given and the Rules of audi alteram partem were departed. Hon’ble the Supreme Court in Kalpraj Dharamshi Vs. Kotak Investment Advisors Ltd (2021) 10 SCC 401 has categorically held that when the proceedings invoked before a statutory authority are dehorse the jurisdiction or when they are in breach of principles of natural justice, the party would be entitled to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India.

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Further in a mere recent decision, Hon’ble the Supreme Court in PHR Invent Educational Society Versus Uco Bank 2024 SCC OnLine SC 528 held that certain exceptions have been carved out by the Court when a petition under Article 226 of the Constitution could be entertained in-spite of availability of an alternative remedy. Para 29 is relevant and quoted hereinbelow :

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(i) where the statutory authority has not acted in accordance with the provisions of the enactment in question;

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(ii) it has acted in defiance of the fundamental principles of judicial procedure;

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(iii) it has resorted to invoke the provisions which are repealed; and

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(iv) when an order has been passed in total violation of the principles of natural justice.

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In the instant case, the procedure prescribed in Rule 7 of Panchayat Service (Discipline and Appeal) Rules 1999 that no order imposing

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any of the major penalties specified in clause (iv) to (vii) of rule 5 shall be passed without there being any opportunity of hearing, was completely by-passed. One aspect which comes to fore is that the petitioner has pleaded that pursuant to his removal, another set of candidates were appointed and the document has been filed as Annexure P-8. The return of the State would show that an objection has been taken that in case the services of the petitioner is reinstated, it will have the effect of removal of the person in whose place, the petitioner seeking appointment and they have not been made a party , therefore, it would cause serious prejudice to the persons who are not before the Court. The objection raised by the State appears to be reasonable, but at the same time, shelving the statutory rules while terminating the services of an employee of Panchayat Shiksha Karmi cannot be overlooked.

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Therefore, in order to appreciate the facts as existing today, the appellant would be at liberty to prefer an appeal as per Rule 3 of Chhattisgarh Panchayats (Appeal and Revision) Rules 1995 to the State Government as per Rule (3)(c) of the Rules of 1995. The appeal if so preferred within a period of 30 days from the date of receipt of the order, the same may be decided in accordance with Panchayat Raj Act and the Rules made thereunder within a period of 4 months.

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With such observation, this appeal is partly allowed.

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Sd/(Goutam Bhaduri) Judge

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Rao

Om Prakash v. State Of Chhattisgarh and Ors.

Case brief

What is this about?

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Om Prakash v. State Of Chhattisgarh and Ors.

Case brief

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