Ashok Kumar Gayakwad Vs State of Chhattisgarh

1 - Bhojeshwar Chandrakar S/o Shri Arun Chandrakar Aged About 33 Years Working As Peon, Chhattisgarh Council Of Science And Technology, Vigyan Bhawan, Vidhan Sabha Raod, Daldal Seoni, Raipur, R/o Village Baigapara, City Kotwali, Durg, District Durg, Chhattisgarh.

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--- Petitioner

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versus

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1 - State Of Chhattisgarh Council Science And Technology, Vigyan Bhawan, Vidhan Sabha Raod, Daldal Seoni, Raipur, District Raipur, Chhattisgarh.

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2 - Director General Of Chhattisgarh Council Science And Technology, Vigyan Bhawan, Vidhan Sabha Raod, Daldal Seoni, Raipur, District Raipur, Chhattisgarh.

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--- Respondents

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WPS No. 4690 of 2021

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1 - Satish Kumar Chandra S/o Shri Ram Lal Chandra, Aged About 33 Years Working As Peon, Chhattisgarh Council Of Science And Technology, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, R/o Village Malni, Post Salni, District Janjgir Champa (Chhattisgarh), District : Janjgir-Champa, Chhattisgarh

--- Petitioner

2

Versus

1 - State Of Chhattisgarh Council Science And Technology, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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2 - Director General Of Chhattisgarh, Council Science And Technology, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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--- Respondents

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WPS No. 4741 of 2021

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1 - Aryahind Yadav S/o Shri Sitaram Yadav Aged About 40 Years Working As Peon, Chhattisgarh Council Of Science And Technology, Vigyan Bhawan Vidhan Sabha Road, Daldal Seoni, Raipur, R/o Trishul Chowk, Baigapara, Citi Kotwali, District Durg, Chhattisgahr, District : Durg, Chhattisgarh

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--- Petitioner

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Versus

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1 - State Of Chhattisgarh Through The Secretary, Department Of Higher Education, Technical Education Science And Technology, Mahanadi Bhavan, Mantralaya Atal Nagar, Naya Raipur, District Raipur,chhattisgarh, District : Raipur, Chhattisgarh

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2 - Director General Of Chhattisgarh Council Science And Technology Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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--- Respondents

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WPS No. 4644 of 2021

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1 - Ashok Kumar Gayakwad S/o Shri Seukram Gayakwad Aged About 38 Years Working As Peon, Chhattisgarh Council Of Science And Technology, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, R/o Bharenga, Post Khorpa, Tahsil Abhanpur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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3

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Petitioners

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Versus

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1 - State Of Chhattisgarh Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Director General Of Chhattisgarh, Council Science And Technology Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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--- Respondents

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WPS No. 4639 of 2021

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1 - Bhupesh Kumar Nishad S/o Shri Mahavir Prasad Nishad Aged About 32 Years Working As Peon, Chhattisgarh Council Of Science And Technolony, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, R/o Village Bendri, Tahsil Utai, Durg District Durg, Chhattisgarh., District : Durg, Chhattisgarh

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--- Petitioner

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Versus

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1 - State Of Chhattisgarh Through The Secretary, Department Of Higher Education, Technical Education Science And Technology, Mahanadi Bhavan, Mantralaya Atal Nagar, Naya Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Director General Of Chhattisgarh, Council Science And Technology Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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--- Respondents

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WPS No. 4897 of 2021

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1 - Sunil Yadu S/o Shri Shankar Lal Yadu Aged About 30 Years Working As Peon , Chhattisgarh, Council Of Science And Technology , Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur , R/o Near Khallari Temple, Mahadev Ghat Road, Police Station Sundar Nagar, Raipur , District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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--- Petitioner

Versus

1 - State Of Chhattisgarh Through The Secretary, Department Of Higher Education, Technical Education Science And Technology , Mahanadi Bhavan, Mantralaya Atal Nagar, Naya Raipur , District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Director General Of Chhattisgarh Council Science And Technology , Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur , District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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--- Respondents

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WPS No. 6573 of 2021

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1 - Dooman Lal Soni S/o Late Shri Bahalram Soni Aged About 41 Years Working As Peon, Chhattisgarh Council Of Science And Technology, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, R/o Near Durgesh Grocery Shop, Baijnath Para, Police Station City Kotwali, District Durg, Chhattisgarh.

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--- Petitioner

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Versus

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1 - State Of Chhattisgarh Council Science And Technology, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Director General Of Chhattisgarh Council Science And Technology, Vigyan Bhawan, Vidhan Sabha Road, Daldal Seoni, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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--- Respondents

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WPS No. 4133 of 2022

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1 - Amrit Das Patela S/o Late Shri Daduram Patela Aged About 42 Years R/o Village Barouda Post Rakhi, Atal Nagar, New Raipur, Tahsil Arang, District : Raipur, Chhattisgarh

--- Petitioner

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Versus

1 - State Of Chhattisgarh Chhattisgarh Council For Science And Technology, Mig 25, Indravati Colony, Raipur (Chhattisgarh)

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2 - Director General, Chhattisgarh Council For Science And Technology, Mig 25, Indravati Colony, Raipur (Chhattisgarh)

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... Respondents

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For Petitioners	in WPS :	Mr. Ravi Kumar Bhagat,
Nos.4676/2021, 4644/2021, 4741/2021 and 489	4639/2021, 4690/2021, 7/2021	Advocate.
For Petitioner No.6573/2021	in WPS :	Mr. J.K. Gupta, Advocate
For Petitioner no.4133/2022	in WPS :	Mr. Sudeep Johri, Advocate
For Respondent/St	ate :	Mr. Anand Gupta, Dy.G.A.
For Respondent N	o.2 :	Dr. Saurabh Kumar Pande, Advocate

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Hon'ble Shri Bibhu Datta Guru, J CAV Order

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Since all the petitions assail the common order and involve interconnected issues, they were heard and being disposed of by this common order. For the sake of convenience, the pleadings and the documents placed in WPS No.4676/2021 are being referred.

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Challenge in all the petitions is to the order dated 21/9/2020 whereby the petitioners have been terminated from the respective services as also the order dated 17/3/2021 by which the departmental appeals of the petitioners have been rejected.

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(A) The facts, as projected in the instant writ petitions, are that, initially the petitioners were appointed on Collector rate between

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the period 2011-2012. Looking to the services rendered by the petitioners, they have been regularized on the post of Peon in the regular pay scale of Rs. 4700-4750-7440/- + Grade Pay Rs. 1300/- in the year 2014. On the completion of probation period, when their services were not confirmed, the petitioners moved representations and prayed for confirmation of their respective services. In the meanwhile, on account of reduction of salary, the petitioners preferred WPS No.3094/2017 which was allowed by this Court holding that the manner of reduction from salary of the petitioners from July 2017 is held illegal as such, the petitioners are entitled for salary in accordance with the contract of appointment. In the said writ petition, this Court reserved liberty to the respondents observing that it would be open for the respondents to take appropriate decision in the service matter of the petitioners on the basis of enquiry report collected by the respondents and due consideration of reply to the show cause notices, by a speaking order in respect of each of the petitioners. Subsequently, the respondent authorities issued notices to the petitioners and sought explanation on the following points:-

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“1.पर ि �षदक ा �र� ्या � लर ्या म ें� द � न ि �क ा व े� त�भ�ग ो � ी /स ं� न ि वद�क े ा मच ें� ��क ा ा� र ू पम आपक ा �न ि �र ्या� क ्ति �तक ा� ल ि लए�र�क ्या ा �ईन ि वज े �प�ज ्ञा ��न ा ि क ा र�ग ्या ी र� ्या ?

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�र�आपक ्या ा� द ्वा ��इस ं न ि वज े �प�क ्ञा ा� आध ा ��प�आवद�द े� ि दर�ग ्या र ी � ्या ?

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3. आव े� द�उप�� त�र�क ्या ा �ईप��क ्षा � / स ं �क ्षा �तक ् ा ��क ा� म ें �ध ् रम ्या ें स ं� आपक ा च ा र ्या �न ि क ा र�ग ्या ी र� ्या ?

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4. पर ि �षदक ा �र� ्या � लर ्या म ें� द � न ि �क ा व े� त�भ�ग ो �स ी ं� न ि �र ्या म ि मतक ें म ा ें� च��क ा ा� र ू पम

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आपक ा �न ि �र ्या� क ्ति �तन ि कस ा ं आध ा ��प�तथ�न ा ि कस ा ं च ा र ्या �पन ्र ि 0र� ्या /भ ो त1 पन ्र ि 0र�स ्या ं� क ा �गई ी I

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5. �र�इस ्या ं न ि �र ्या म ि मतव ें े� त�म ें ��म ें� भत1 ो न ि क ा एज�� ा � क ा� ल ि लएक ा �ईन ि वज े �प� ्ञा ज��न ा ि क ा र�ग ्या ी र�तथ ्या �इस ा ं न ि वज े �प�क ्ञा ा� आध ा ��प�आप� � पर ि �षदक ा �र� ्या � लर ्या म ें� आवद�ज े� ा म ें �न ि क ा र� ्या ?

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6. �र�आपक ्या ा� द ्वा ��क ा �ईप��क ्षा �/स ं �क ्षा �तक ् ा ��आद ि दच ा र ्या �प ्र न ि 0र�स ्या ं� ह ो �क� ा आपक ा �च ा र ्या �न ि �र ्या म ि मतक ें ा मच ें� ��क ा ा� र ू पम ें� न ि कर ा �ग ्या र ी � ्या ?

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(B) After receipt of the said notices, the respective petitioners submitted their reply. In response to the further correspondence also, the petitioners submitted their reply and submitted the requisite information/documents sought for by the respondent authorities. Thereafter, the petitioners approached this Court by filing WPS No.5220/2019 and sought a direction towards the respondents authorities to consider their candidature for confirmation on the posts. The said writ petition was disposed of by this Court vide order dated 17/07/2019 by directing the respondents authorities to consider the case of the petitioners with respect to their confirmation at the earliest preferably within a period of four months from the date of receipt of the order. Thereagainst, the respondent No.2 herein preferred WA No.543/2019 which was dismissed by the Division Bench of this Court. Subsequently, the department preferred MCC No.226/2020 for extention of time to comply with the order of this Court passed in WPS No.5220/2019, which was disposed of by this Court vide order dated 04/03/2020 and granted further 45 days time for

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deciding the claim of the writ petitioners.

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(C) Subsequently, the respondent No.2 asked the petitioners to submit their respective marksheets of Class-VI and Class-VIII, Caste certificate issued by the High Power Committee, Domicile certificate duly attested by the Gazetted Officer, Police Verification Form etc. In respect of the said letter, the petitioners submitted all the documents, however, all of a sudden, vide order dated 21/09/2020, terminated the services of the petitioners. Being aggrieved, the petitioners moved the Departmental Appeal, however, the same has been rejected on 17/03/2021 in an illegal and arbitrary manner, that too, by a non-speaking and unreasoned order.

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(D) According to the petitioners, the order of termination and rejection of departmental appeal is absolutely illegal and arbitrary because before passing the order of termination, a due procedure has not been followed despite the fact that the petitioners are the regular employees of the department. Thus, these petitions.

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(i) Learned counsel for the petitioners would submit that the petitioners have attained the status of permanent that the employee with the respondent no. 2 after passing of regularization order by the head of Executive Committee i.e. Respondent no. 2. The services of petitioners not only got regularized but they have continuously worked/performed the duties on the said post for about 2 years, which is also a probation period (2 years). Learned

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counsel submits that no opportunity of hearing was afforded to the petitioners by observing the principle of " audi alterem partem " and no proper procedure was adopted before the termination therefore the entire process is illegal, bad and contrary to the provisions of the Chhattisgarh Council of Science & Technology Service Recruitment Rules, 2003 (for brevity ‘the Rules, 2003’), and also contravention to Article 311 (2) of the Constitution of India. Learned counsel further submits that no permanent employee could have been terminated without proper procedure of law since the period of probation was already over and therefore no extension was given to the petitioners. Even this Court has directed to confirm the services petitioners, despite the said fact the authorities passed the orders impugned in an illegal and arbitrary manner, which is not at all sustainable in the eyes of law. (ii) Learned counsel by placing reliance upon the decision of the Supreme Court rendered in the matter of Swati Priyadarshini Vs State of Madhya Pradesh And Others¹ contended that once an employee is allowed to continue in service for a long period pursuant to regularization, the employer cannot subsequently terminate the services on the ground of alleged irregularity in the initial appointment, particularly when the employee is not guilty of any fraud or misrepresentation. An employee cannot be penalized for lapses, if any, committed by the employer in the process of appointment or regularization. In the present case, the petitioners 1 (2024) 19 SCC 128

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had no role in the alleged procedural irregularities, if any, and therefore cannot be made to suffer. Learned counsel further submits that the impugned action of the respondents is arbitrary and illegal.

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(a) On the other hand, learned counsel for the respondents would submit that no open advertisement was ever issued for recruitment/regularization of 13 peons including the present petitioners. No procedure as prescribed under "Service Rules & Regulation Manual" of the CCOST has been followed while recruiting/regularizing 13 peons including the present petitioners. Learned counsel submits that the reservation policy of the State has also not been followed. Moreover, the petitioners have also failed to throw light upon the correctness and legality methodology/procedure followed in respect of their recruitment/ regularization, despite affording due opportunity twice.

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(b) According to the learned counsel for the respondents without availing the alternative remedy available before the Labour Court they directly approached this Court invoking the extraordinary writ jurisdiction of this Court and as such these petitions deserve to be dismissed on the ground of availability of alternative remedy.

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(c) Learned counsel also submits that it is the own admission of the petitioners that they have been recruited/regularized by the then DG-CCOST upon the approval of the Hon'ble Minister,

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Department of Science & Technology, Government of Chhattisgarh who is also the Chairman of CCOST clearly demonstrating the irregularity in their recruitment/regularization. Learned counsel further submits that petitioners and other similarly situated persons were working in excess to the sanctioned strength of the peon/chowkidar. The appointment of the petitioners and other similarly situated persons herein was made in violation of Services Rules applicable in CCOST. Due procedure was not adopted for recruitment of the petitioners and other similarly situated persons herein. Even the roster relating to reservation has also not been followed in the recruitment process. Thus, the orders impugned are just and proper warranting no interference of this Court.

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(d) Learned counsel further submits that there was no procedure followed as prescribed under “ Service Rules & Regulation Manual ” of the CCOST for direct recruitment of personnel(in the post of (Peon/Chowkidars). No record was found in the Establishment Section to show that the regularization of these personnel working as daily wager/contract rate was done as per the procedure prescribed under “ Service Rules & Regulation Manual ” of the CCOST. Learned counsel further submits that the matters of the petitioners have been finally put to rest after passing of their termination order strictly according to the decision taken by the President of General Body of the CCOST vide letter

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dated 17/08/2020, in which, it was found that the appointments of the present petitioners and other similarly situated persons in CCOST was in complete violation of the Manual of the CCOST.

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I have heard learned counsel for the parties, perused the pleadings and documents.

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It is not in dispute that the petitioners were initially appointed on Collector rate during the period 2011–2012 and thereafter their services were regularized in the year 2014 on the post of Peon in the regular pay scale. It is also an admitted position that after regularization, the petitioners continuously discharged their duties for more than two years.

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From the material available on record, it is evident that the petitioners have completed the prescribed period of probation. No order extending their probation period has been brought on record by the respondents. Further, since the petitioners had already attained the status of regular employees, the protection under Article 311(2) of the Constitution of India was clearly attracted. The respondents failed to comply with the mandatory requirements of conducting a proper enquiry, and providing reasonable opportunity to defend before passing the order of termination.

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In Swati Priyadarshini (supra) , the Supreme Court held thus at para 34:

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“ 34 . It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v. Union of India : (SCC OnLine SC para 28)

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"28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chandra Anand v. Union of India . Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of U.P. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms

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of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India? wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the

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contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce

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him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1)

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whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant,"

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(emphasis supplied)

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From bare perusal of the impugned order of termination dated 21/09/2020 reveals that the same has been passed without conducting any regular departmental enquiry. Though certain notices were issued seeking explanation from the petitioners, the same cannot be equated with a full-fledged enquiry as required under law. The petitioners were not afforded a proper opportunity of hearing, nor were they confronted with any specific charges in accordance with prescribed procedure. The action of the

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respondents is thus in clear violation of the principles of natural justice, particularly the doctrine of audi alteram partem , which mandates that no person shall be condemned unheard. The procedure adopted by the respondents falls short of the minimum standards of fairness required in administrative action.

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The contention of the respondents that the initial appointment/ regularization of the petitioners was irregular due to noncompliance of recruitment rules and reservation policy does not justify the impugned action. It is well settled that if there is any irregularity in the process of appointment, the same is attributable to the employer and the employees cannot be penalized for the fault of the authorities, particularly after having rendered long years of service pursuant to regularization.

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In the case at hand, the petitioners were appointed during the years 2011–2012 and subsequently they were duly regularized on the post of Peon in the year 2014, thereby acquiring a substantive right to hold the posts. In the year 2017, their salary has been reduced by the respondent authorities. The action of the respondent authorities in reducing the salary of the petitioners was earlier challenged before this Court in WPS No. 3094/2017, which was allowed by holding that the reduction in salary with effect from July 2017 was illegal, and the said finding has attained finality. Subsequently, in WPS No. 5220/2019 preferred by the writ petitioners this Court directed the respondents to consider the

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case of the petitioners for confirmation within a stipulated period, which direction was affirmed by the Division Bench upon dismissal of WA No. 543/2019. Despite the said facts, the respondents have proceeded to pass the impugned order of termination in the year 2020 without any justifiable basis. Such action on the part of the respondents is arbitrary, unreasonable, and violative of the principles of natural justice. In the absence of any material to justify a departure from the settled position, the impugned order cannot be sustained in law and is liable to be set aside.

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In the opinion of this Court, no appointee should be disturbed after putting in service more than 3-4 years and the employee be permitted to do duties peacefully and without any sense of insecurity. In the cases at hand, the petitioners initially appointed at Collector rate in the year 2011-2012, subsequently, they regularized in the year 2014 and they continued on their respective posts till 2020. However, after completion of 6-7 years of service, the termination orders have been passed, that too, without following the due process of law. A bare perusal of the material available on record clearly indicates that the authorities have utterly failed to establish that the petitioners secured their initial appointment or subsequent regularization by any act of fraud or by misleading the authorities. Any technical irregularities, if at all, in the process of such appointments are attributable solely

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to the respondent authorities and cannot, in law, be fastened upon the petitioners, who were initially engaged on a Class-IV post at the Collector rate.

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The appellate order dated 17/03/2021 rejecting the departmental appeal is also unsustainable, as the same is a non-speaking and unreasoned order. It does not reflect any application of mind and fails to assign any reasons for rejecting the appeal, which is contrary to settled principles of administrative law.

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Upon consideration of the entire record, this Court holds that the petitioners having been duly regularized in service in 2014 following their initial appointment in 2011–2012, thereafter acquired the status of regular employees. Consequently, they were entitled to the constitutional protection under Article 311(2), which mandates that no termination can be effected without a proper departmental enquiry and reasonable opportunity of being heard, both of which are conspicuously absent here. The respondents merely issued notices & sought some information from petitioners, without conducting a legally sustainable enquiry or framing definite charges, thereby violating the settled principles of natural justice, particularly audi alteram partem . Moreover, the respondents' plea of irregularity in appointment cannot be accepted at this belated stage, as any such irregularity is attributable to the authorities themselves and cannot be invoked to the petitioners' detriment after years of service, especially

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absent any allegation of fraud or misrepresentation. Further, the order of departmental appeal dated 17/03/2021 is non-speaking, devoid of reasons, and thus fails to meet legal requirements.

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It appears that the respondent authorities have not followed the principles of natural justice and the impugned order has been passed without affording an opportunity of hearing to the petitioner and without conducting due enquiry. The practice of passing order involving civil (evil) consequences, without affording an opportunity of hearing and without conducting enquiry, is condemned. Thus, this action of termination of the services of the petitioners is bad on the simple ground that the petitioners were not afforded any opportunity of hearing and no enquiry was conducted before passing the order impugned.

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It is well settled principle of law that an order visiting with civil consequences cannot be passed without following the due process of law. Their Lordships of the Hon'ble Supreme Court in the matter of Shrawan Kumar Jha & Others vs. State of Bihar & Others² , wherein the appointment of teachers was cancelled without giving them an opportunity of hearing, observed as under:

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"It is not necessary to go into all these questions. In the facts and circumstances of this case we are of the view that the appellant should have been given an opportunity of hearing before canceling their

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2 AIR 1991 SC 310

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appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellant could be passed without complying with the rules of natural justice."

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The Hon'ble Supreme Court in the case of D.K. Yadav vs. J.M.A. Industries Ltd. & Others³ , considering the concept of opportunity of hearing observed as under:

¶139

“The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Therefore, fair play in action request that the procedure adopted must be just, fair and reasonable.

¶140

3 (1993) 3 SCC 259

¶141

23

¶142

The manner of exercise of the power and its impact on the rights of the person affected would be inconformity with the principles of natural justice”

¶143

The said principle is reaffirmed by the Supreme Court in the matter of Basudeo Tiwary vs. Sido Kanhu University s others⁴ , wherein Their Lordships observed that:

¶144

“The law is settled that non-arbitrariness is essential facet of Article 14 forwarding the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment.”

¶145

Applying the well settled principles of law to the facts of the present case and in view of the foregoing analysis, this Court is of the considered opinion that the impugned termination order dated 21/09/2020 as well as the appellate order dated 17/03/2021 are

¶146

4 AIR 1998 SC 3261

¶147

24

¶148

arbitrary, illegal, and violative of the principles of natural justice and constitutional safeguards, and therefore liable to be set aside.

¶149

Accordingly, all the writ petitions deserve to be and are hereby allowed . The impugned orders of termination dated 21/9/2020 and the orders of rejection of departmental appeal 17/3/2021 are quashed and set aside. The respondent CCOST is directed to reinstate the petitioners on their respective posts by extending the benefit of notional pay & seniority. However, the petitioners are

¶150

not entitled for any backwages. SD/-

¶151

(Bibhu Datta Guru) Judge

¶152

Gowri/ Amardeep

Ashok Kumar Gayakwad v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ashok Kumar Gayakwad v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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