Anupama Saraugi Vs State of Chhattisgarh

iii. To kindly direct the respondent authorities/Chief Executive Officer Zila Panchayat, Durg to reinstate the petitioner back to her service with full backwages and consequential benefits.

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iv. To kindly direct the authorities to take appropriate action against the respondent no.4 for wrongfully causing loss of employment to the

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petitioner.

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v. To kindly make any other order that may be deemed fit and just in the facts and circumstances of the case including awarding of the costs to the petitioner.”

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Facts of the case in a nutshell is that vide order dated 29.09.2010 Annexure P/2 the petitioner was appointed as Shiksha Karmi Grade – 1 (English) by respondent No. 4 at Government High School, Kacholi, District- Durg C.G. In compliance of the said order, she joined on 01.10.2010 and the services of the petitioner has been regularized on completion of probation period vide order dated 13.02.2014 Annexure P/3. Sometime in the month of December, 2014 the petitioner was orally informed that her services were terminated vide order dated 19.06.2014 Annexure P/4. The petitioner challenge the same in WPS No. 4821/2017 before this Court and this Court did not entertain the said writ petition on account there being an alternative remedy to file an appeal against the order of termination and dismissed the writ petition reserving the liberty in favour of the petitioner to file an appeal vide its order dated 14.09.2017 Annexure P/5. Thereafter, the petitioner preferred an appeal before the respondent No. 3 the appeal of the petitioner was allowed vide order dated 14.02.2019 holding that the termination of order of petitioner passed by respondent No. 4 is bad in law. It was further observed that the case of the petitioner be considered afresh as per relevant rules of Panchayat Raj Rules (Disciplinary and Appeal) Rules, 1999 (for short Rules, 1999). The order of the respondent No. 3 was not complied with by respondent No.4 rather the same was put to challenge by filing a revision before the respondent No. 2. By the order dated 06.09.2022 Annexure P/1, the revision filed by respondent No. 4 was allowed by respondent No. 2 and the order passed by the respondent No. 3 was set aside. The order of respondent No. 2 is impugned here in this writ petition.

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Learned counsel for the petitioner submits that admittedly the petitioner was appointed as Shiksha Karmi Grade-1 on probation. On completion of her probation, the services of the petitioner were regularized and she attained the status of permanent employee. He further submits that services conditions of the petitioner are governed by Rules of 1999 and as per Rule 7 of the Rules of 1999, the respondent No. 4 was required to conduct a departmental enquiry against the petitioner before passing the order of termination. He submits that the law in this regard is no longer res integra in light of judgment of this Court passed in case of Chandikeshwar Singh Vs. State of C.G. and Ors. passed in Writ Petition No. 597/2004 decided on 25.06.2007 . He further submits that the respondent No. 2 while passing the impugned order dated 06.09.2022 allowing the appeal of the respondent No. 4 failed to appreciate the legal position in this regard and erroneously allowed the appeal filed by the respondent No. 4. Therefore, he submits that the impugned order dated 06.09.2022 Annexure P/1 and termination order dated 19.06.2014 Annexure P/4 may be set aside and the petitioner may be reinstated in the service with consequential benefits.

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Mr. Bisen supports the impugned order.

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Mr. Bajpai submits that though the probation period of the petitioner was

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completed and she was regularized in the service attaining the status of the permanent employee. He submits that the petitioner remained unauthorized absent from July, 2013 onwards and a show cause notice was also issued on her postal address despite of that she did not file any reply. He further submits that the earlier petition filed by the petitioner was dismissed on delay and laches therefore on same set of facts this petition cannot be entertain by this Court. He submits that the petitioner herself failed to appear before the enquiry officer hence for her own wrong doing, she cannot derive any benefit to the fact that no departmental enquiry was conducted.

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I have heard learned counsel for parties and perused the documents available on record.

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There is no dispute to the facts that the petitioner attained the status of the permanent employee after her services being regularized and her probation came to an end. There is no dispute to the fact that service condition of the petitioner are governed by Rules of 1999. The Rules 7 is relevant for consideration therefore it is quoted below:-

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"Procedure for imposing major penalties :- (1) No order, imposing on a member of the Panchayat Service, any of the penalties specified in clause

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(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, along with the statement of the allegations, to the member of 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 the 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, he 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 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 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 be furnish to the person charged a copy of the report of 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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Mr. Bajpai submitted that the petitioner had earlier filed a writ petition

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which was dismissed therefore this writ petition cannot be allowed. The order

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of this Court in the earlier writ petition is quoted herein below:-

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“4. The issue as to whether order was communicated to the petitioner, it is a disputed question of fact. Therefore, in this background, I am not inclined to invoke extra-ordinary writ jurisdiction under Article 226 of the Constitution of India in favour of the petitioner, who was sleeping over his right for a period of three years. The petitioner has appellate remedy under the Rules of 1995

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and under the aforesaid rules, there is also provision for condonation of delay in filing the appeal.

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In view of aforestated observation, this petition is dismissed, though with the liberty to file appeal.”

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Perusal of the record indicates that the petition was not entertain on account of delay and laches and also on account availability of alternative remedy. In the concluding part, this Court reserved the liberty in favour of the petitioner to file appeal. Thereafter, the petitioner filed an appeal before the Commissioner R2 & R3 which was allowed and was subject to challenge before R2 and the order was set aside. Therefore, it cannot be said that this writ petition cannot be entertained on account of dismissal of earlier writ petition.

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The second submission of Mr. Bajpai is that notice was issued to the petitioner, however she failed to appear in the enquiry but the fact remains there is no document to suggest that the notice was served upon the petitioner. The order by which the services of the petitioner was terminated Annexure P/4 indicates that the petitioner and so many other teachers panchayat were terminated on account of remaining absent for a long period without there being any leaves sanctioned in their favour and they failed to submit reply to the notice issued to them. It does not reflect as to whether before passing such an order of termination, any departmental enquiry was conducted by the respondent.

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From perusal of the documents it appears that no departmental enquiry was conducted in lieu of Rules 7.

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This Court in case of Chandikeshwar Singh (Supra) observed as under: “13. Admittedly, the Gram Panchayat, before passing the impugned termination order has not complied with the provisions of Rule 7 of the Rules, 1999. This Court in Dhaluram Kosaria v.

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State of C.G. and Ors. MANU/CG/0178/2006: 2006 (2) CGLJ 186 Beegan Ram v. State of C.G. and Ors. MANU/CG/0066/2005: 2006 (2) Μ.Ρ.Η.Τ. 3 (CG) : 2006 LT (CG) 41 and Prakash Chand Soni v. State of C.G. and Ors. 2005 LT (CG) 151, has held that the non-compliance of the statutory provisions and denial of principles of natural justice tantamounts 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 of removal being penal in nature, visiting with civil consequences, cannot be passed without holding the enquiry in accordance with the elaborate provisions as prescribed in Rule 7 of the Rules, 1999.”

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Therefore, the impugned order dated 06.09.2022 Annexure P/1 and termination order dated 19.06.2014 Annexure P/4 is set aside. The petitioner is reinstated in her service. So far as the question of backwages the same shall be decided by the respondents. In the event if any departmental enquiry initiated against the petitioner by the competent authority/respondents, the petitioner would be afforded due opportunity of hearing.

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With this observation and direction, the writ petition is allowed .

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Sd/-

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({Sachin Singh Rajput})

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JUDGE

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H. Ansari

Anupama Saraugi v. State of Chhattisgarh

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Anupama Saraugi v. State of Chhattisgarh

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