Allowed

Rakhi Pandey v. State Of Chhattisgarh And Ors.

Chhattisgarh HC22 Apr 2024WPS/1929/2014

Case brief

AI extract

What is this about?

The High Court set aside a termination order against a teacher appointed on probation who was removed without a formal inquiry due to alleged document irregularities. Holding that a major penalty requires a formal inquiry as per service rules, the court quashed the termination and reinstated the petitioner with consequential benefits.

What did the court decide?

The termination order dated 24/02/2014 is set aside; petitioner is reinstated to the post of Shiksha Karmi Grade-III with all monetary and consequential benefits.

Rakhi Pandey Vs State Of Chhattisgarh… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 1929 of 2014

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Rakhi Pandey, D/o Shri R.B. Pandey, Aged About 26 Years, Occupation-Service, Assistant Teacher (Panchayat) (now removed) R/o Village Bachhod, Tahsil And P.S. Baloda, Distt. Janjgir Champa, (CG) Civil And Revenue Distt. Janjgir Champa C.G. ---- Petitioner

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Versus

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State Of Chhattisgarh, Through The Secretary, Department Of Panchayat And Rural Development, Mantralay Mahanadi - Bhawan Raipur

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Collector, District Janjgir-Champa, Chhattisgarh

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District Education Officer, District Janjgir-Champa, Chhattisgarh

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Block Education Officer, Block Baloda, District Janjgir-Champa, Chhattisgarh

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Zila Panchayat, Janjgir Champa Through The Chief Executive Officer, District Janjgir-Champa, Chhattisgarh

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Janpad Panchayat, Balod, District Janjgir-Champa, Chhattisgarh

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Head Master, Janpad Primary School, Bachhod, Tahsil Baloda, District Janjgir-Champa, Chhattisgarh

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8. Madan Singh Rana R/o Netaji Chowk, Janjgir, District JanjgirChampa, Chhattisgarh ---- Respondents

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For petitioner – Ms. Sakshi Chhabra, Advocate appears on behalf of Shri Malay Shrivastava, Advocate. For State/respondents No.1 to 4 – Ms. Anuradha Jain, PL. No representation is made on behalf of respondents No.5 & 6.

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Hon'ble Shri Justice Goutam Bhaduri

Order on Board

23/04/2024

Heard.

Present petition is against the termination order dated 24/02/2014 (Annexure P-1) passed by the Chief Executive Officer, Janpad Panchayat,

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Baloda.

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According to the petitioner, she was appointed to the post of Shiksha Karmi Grade-III on 18/02/2009 by Annexure P-2. According to the appointment, the said appointment was provisional one and the certificate

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which was attached at the time of the application was subject to the verification. The petitioner was appointed on the basis of the disability certificate which was issued at the time of the application for job. According to the petitioner, in a Jan Darshan Programme of the State, respondent No.8 Madan Singh Rana made a complaint against the petitioner that she got the service on the basis of the false disability certificate, then the papers started moving.

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On the complaint, the respondent No.5 i.e. Zila Panchayat sent the disability certificate of the petitioner for verification to the Medical Board, Janjgir-Champa and in turn, it was informed by a letter dated 18/03/2012 the disability certificate is not signed by the President/Member of the Medical Board and there is no endorsement in the Register. The petitioner contend that neither the copy of the complaint nor any information was supplied to the petitioner and no enquiry was conducted by respondent No.5, however a show cause notice was issued to the petitioner by the respondent 6 stating that the petitioner has obtained the service on the basis of the forged document and why she should not be terminated and FIR be registered against her.

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She replied to the show cause notice and stated that her eyes were tested at Baloda Swast Kendra and thereafter she was referred to the Janjgir Main Hospital and in the District Hospital the certificate was prepared after complete test and probably the clerk may not have written the registration number. The petitioner sought time to produce the verified medical certificate from the Medical Board, therefore again a show cause was issued to the petitioner by respondent No.6 Janpad Panchayat and on receipt of such show cause notice, again a reply was given on 23/07/2012 and stated that the Medical Board is not functional, as and when it is constituted, the petitioner will obtain the said certificate. The respondent No.6 without considering the reply dated 23/07/2012 removed

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the petitioner without any enquiry from her post. The petitioner therefore submits and affirms the fact that she is a disabled candidate and since the Medical Board at the District Hospital, Janjgir was not functional and no eye surgeon was available in the hospital, therefore case of the petitioner was referred to the District Hospital, Bilaspur for Medical Examination.

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The petitioner has attached a certificate subsequently of District Hospital, Bilaspur Annexure P-5 dated 8/03/2014 to submit that she is suffering from disablement to the extent of 40% in both the eyes. The petitioner contends that before the termination order was passed, no hearing or enquiry was conducted. Return of respondents No.5 & 6 who predominantly issued the termination order is on record. Their reply contends that when the petitioner’s services were on probation and it was a conditional one, that during the probation the certificate issued on which the services were obtained would be subject to verification. However, when it was found that the certificate on which the petitioner obtained the service was forged, her services were terminated.

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Learned State counsel would submit that main contention is to be made by respondents No.5 & 6, however no representation is made on behalf of respondents No.5 & 6.

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Heard the learned counsel for the parties.

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The appointment of Shiksha Karmis are made under Chhattisgarh Panchayat Shiksha Karmis (Recruitment And Conditions of Service) Rules, 1997. Rule 7 of it describes the probation which reads as under:-

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“7. Probation.- Every person directly recruited to the post of Shiksha Karmi shall be appointed initially on probation of three years, extendable upto five years for a particular school so that he serves in that school for full probation period. The performance will be assessed by the appointing authority at the end of each year. After three years, the Shiksha Karmi may be appointed in the regular pay scale of the Panchayat on the basis of his work, conduct and performance. In case the performance is not found satisfactory, he may be allowed to continue on the probation for another one to two years to improve after which his performance

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will be assessed again at the end of extended period and if not found satisfactory, his services shall be terminated. But in no case the probationary period shall be extended beyond the maximum period of five years. Shiksha Karmi will be paid fixed pay equivalent to minimum of the pay scale with admissible dearness allowance during the probation period.”

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Reading of the Rules would show that person directly recruited to the post of Shiksha Karmi shall be appointed initially on probation for three years which would be extendable upto five years for a particular school. It shows the performance will be assessed by the appointing authority at the end of each year and after three years, the Shiksha Karmi may be appointed in the regular pay scale of the Panchayat on the basis of his work, conduct and performance and in case the performance is not found satisfactory, he may be allowed to continue on the probation for another one to two years.

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In the instant case, the petitioner was appointed on 18/02/2009. The reply of the respondents No.5 & 6 do not reflect that the services of the petitioner during such time was not satisfactory, no document have been attached, therefore it would be covered by first part of Rule 7 which would be deemed that after three years the services of the petitioner would be deemed to have been confirmed.

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Now coming back to the termination. The petitioner since would be a member of Panchayat Service, as per Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the Rules of 1999), Section 2 (f) describes Member of Panchayat Service or a Panchayat Servant means any person appointed to the Panchayat Service and includes an officer or servant allocated to the panchayat service.

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Rule 5 of it prescribes the minor and major penalties. Since the petitioner was removed from the service, therefore it would be covered under Rule 5(b) which are as under:-

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“5. Penalties - The following penalties may, for good and sufficient reasons, and as hereinafter provided by imposed on a member of the Panchayat Service, namely:-

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xxx

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(b) Major Penalties —

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(iv)Reduction in rank including reduction to a lower post or timescale or to a lower stage in a time-scale,

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(v)Compulsory retirement,

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(vi)Removal from service not disqualifying for future employment, (vii)Dismissal from service which shall ordinarily be a disqualification for future employment:

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Provided that in the case of member who have been allocated to the panchayat service and who according to the terms and conditions of their service which were immediately applicable to them before such allocation were not liable to the penalty or fine, no penalty or fine shall be indicated upon them.

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Explanation - The following shall not amount to a penalty within the meaning of this rule.-

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(i)Withholding of increments of a member of the Panchayat Service for failure to pass a departmental or language examination in accordance with the rules or orders governing the service to which he belongs or the post which he for the time being holds or the terms governing his appointment :

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(ii)Stoppage at the efficiency bar in the time scale of pay on the ground of his unfitness to cross the bar,-

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(iii)Non-promotion of a member of the panchayat service, after consideration of his case, to a post or grade to which he is eligible, on administrative grounds with his conduct;

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(iv)Reversion of a member of the Panchayat Service who is officiating in a higher service, grade or post to a lower service, grade or post on the ground that after trials he is considered to be unsuitable for such higher service grade or post or on administrative grounds not connected with his conduct;

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(v)Reversion of a member of Panchayat Services, appointed on probation to another service, grade or post during or at the end of the period of probation to his permanent service grade or post in accordance with the terms of his appointment or the rules or orders

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governing such probation;

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(vi)(a) Termination of the service of a member of the panchayat service appointed on probation during or at the end of the period of probation accordance with the terms of appointment or the rules order governing such probation

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(b)Termination of the service of a member of the Panchayat Service employed under an agreement in accordance with the terms of such agreement;

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(vii)Compulsory retirement of a member of a Panchayat Service in accordance with the provisions relating to his superannuating or retirement in the panchayat service and not on grounds of his misconduct.”

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Primary reading of it would show that petitioner was dismissed under Rule 5 (b) (vii) of Rules of 1999.

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Rule 7 of it prescribes the procedure for imposing major penalties which reads as under:-

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“7. Procedure for imposing major penalties.- (1) No order, imposing on a member of the Panchayat Service, any of the penalties specified in clause (iv) to (via) of rule 5 shall be passed except after a formal inquiry is held as far as may be, in the manner hereinafter provided.

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(2) When an order for formal inquiry has been made, the disciplinary authority shall frame Definite charges on the basis of allegations and shall communicate such charges, alongwith the statement of the allegations, to the member of the Panchayat Service and also require him to submit, within such time as may be specified a written statement of defence and also to state whether he desires to be heard in person.

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(3) The person against whom inquiry is to be held shall, for the purpose of preparing toe defence, be permitted to inspect and take extracts from such records as he may specify:

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Provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Enquiry Officer such records are not relevant for the purpose or it is against the public interest to allow his access thereto.

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(4) On receipt of the written statement of defence or if any such statement is not received within the time specified, the disciplinary authority may himself enquire into such of the charges as are not admitted or appoint an Enquiry Officer to hold the inquiry and forward to him his report and, if advised, his recommendation alongwith all the inquiry papers.

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(5) The disciplinary authority may nominate any person to present the case in support of the charges before the Enquiry Officer. The member of the Panchayat Service may present his case with the assistance of any other Panchayat Servant of State Government Servant approved by the Enquiry Officer but may not engage a legal practitioner for the purpose, unless the person nominated by the disciplinary authority as aforesaid is a legal practitioner or unless the disciplinary authority having regard to the circumstances of the case so permits.

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(6) If the servant of the Panchayat Service desires to be heard in person, fie shall be so heard. If he so desires or if the disciplinary authority so directs, an oral enquiry shall be held by the Enquiry Officer. At such inquiry evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross examine the witness, to give evidence in. person, to produce documentary evidence, if any, and to have such witness

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called as he may wish :

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Provided that the Enquiry Officer may, for reasons to be recorded in writing, refuse to call a witness.

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(7) At the conclusion of the inquiry, the Enquiry Officer shall prepare a report of the inquiry, recording his findings on each of the charges together with reasons therefor.

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(8) The proceedings conducted against the persons charged shall contain a sufficient record of

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(i)the charges framed against such person and the statement of allegations;

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(ii)the written statement of defence if any;

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(iii)the oral evidence taken in the course of the inquiry;

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(iv)the documentary evidence considered in the course of the inquiry~

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(v)the orders, if any, made by the Enquiry Officer or the disciplinary authority as the case may be with regard to the inquiry;

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(vi)a report setting out the findings on each charge and the reasons therefor

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(9) the Enquiry Officer, if he is other than the disciplinary authority, shall submit the records of the proceedings mentioned in clause (8) above to the disciplinary authority without recommendation relating to the penalty to be imposed. The disciplinary authority shall consider the record of the enquiry and its findings on each charge, having regard to the findings on the charges and the record (if the proceedings) if he is of the opinion that any of the penalties specified in clauses (iv) to (vii) of rule 5 should be imposed, it shall furnish to the person charged a copy of the report of the Enquiry Officer, and where the disciplinary authority is not the Enquiry Officer a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Enquiry Officer.

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(10) The disciplinary authority shall consider the representation, if any, made by the person charged in response to the notice and determine the penalty, if any, should be imposed and shall pass appropriate order on the case.

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(11) The orders passed by the disciplinary authority shall be communicated to the member of the Panchayat Service, who shall also be supplied with a copy of the report of the Enquiry Officer an where, disciplinary authority is not the Enquiry Officer, a statement of its findings together with the brief reasons for disagreement, if any, with the findings of the Enquiry Officer, unless they have already been supplied to the person charged.”

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Reading of the aforesaid Rules would show that when the services

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are to be dismissed and major penalty is to be imposed, the formal enquiry would be necessary and against whom the enquiry to be held shall for preparing the toe defence, be permitted to inspect documents etc.

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meaning thereby the Rules of natural justice are required to be followed and further opportunity to file written statement in defence are required to be given.

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In the instant case in hand, on a complaint made by the respondent No.8 in a Jandarshan a enquiry was contemplated. Pursuant thereto a show cause notice was issued to the petitioner to show that certificate submitted by her is not forged. The contention of the petitioner that the Medical Board was not functional in Janjgir, as such, she was referred to the District Hospital, Bilaspur and disability certificate Annexure P-5 is placed to show that she is having a disability. The return of the respondent would show that only on the ground that the document which was filed earlier did not tally with certain official records, as such, it was held that it was a forged one. If the disability exist on a person it would continue. The certificates are issued for it only fortifies those fact, it is only supportive one. When the respondents were on their toes to question the disability of petitioner, then she could have been referred in person to any higher centre to test her disability. The narration on the paper about disability will not hold the field over the personal disability if disability actually exist. Apart from it, the Rule 7 of Rules of 1999 since contemplate an enquiry to be held before imposing major penalty and having not done so, the petition directly before the High Court would be maintainable in view of the law laid down in case of Kalpraj Dharamshi and another v. Kotak Investment Advisors Limited reported in ( 2021) 10 SCC 401 wherein the Supreme Court has held that when the proceedings invoked before the statutory authority are de hors 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

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PHR Invent Educational Society Versus Uco Bank 2024 SCC OnLine

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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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The document filed along with the petition and the reply would clearly demonstrate that the services of the petitioner were dispensed with simplicitor without giving any opportunity of hearing de hors the Rules of 1999 or following the rules of natural justice.

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Consequently, the termination of service of the petitioner is liable to be set aside. The order dated 24/02/2014 (Annexure P-1) passed by the Chief Executive Officer, Janpad Panchayat, Baloda is set aside and the petition is allowed. The petitioner is reinstated back to the post of Shiksha Karmi Grade-III as she was holding prior to her removal from service. She would also be entitled for all monetary & other consequential benefits which would otherwise would have accrued to her during service.

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Sd/-

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(Goutam Bhaduri) Judge

gouri

Head Note

WPS No. 1929 of 2014

Rakhi Pandey Vs. State of Chhattisgarh & ors.

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The Writ Petition under Article 226 will be maintainable inspite of alternative remedy if statutory authority has not acted in accordance with the provisions of the enactment in question; or it defeated fundamental principles of judicial procedure; or it resorted to invoke repealed provisions or order has been passed in violation of the principles of natural justice.

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Rakhi Pandey v. State Of Chhattisgarh And Ors.

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Rakhi Pandey v. State Of Chhattisgarh And Ors.

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