Bharatram Sahu vs Collector Bemetara And Ors

P. Sam Koshy, J

The challenge in the present Writ Petition is to the order Annexure-P/10 dated 17/01/2016 passed by the learned Commissioner, District Durg

whereby the revision petition preferred by the petitioner against the order passed by the Collector on 09/07/2015 Annexure-P/8 rejecting the appeal on

the revision of the petitioner filed against the order of termination has been rejected.

The facts of the case is that, the petitioner was appointed as a Siksha Karmi-Grade-III under Janpad Panchayat, Berla, District Bemetara vide

order dated 26/09/2007 Annexure-P/1. The petitioner immediately assumed the office as a Siksha Karmi and continued to work till the services of the

petitioner was abruptly terminated vide order dated 23/06/2014 passed by the Chief Executive Officer, Janpad Panchayat, Berla, District Bemetara.

The said order was questioned by the petitioner before the learned Collector, Bemetara in an appeal under Section 91 and the Collector vide his order

dated 09/07/2015 dismissed the said appeal. Against the said order, the petitioner preferred a revision petition before the Commissioner and the

Commissioner also in turn rejecting the petition 2 Collector, leading to the filing of the affirmed the order passed by the present Writ Petition.

According to the petitioner that the impugned order of termination as also the order passed by the Appellate Authority as well as the Revisional

Authority is bad in law for the reason that, the termination of the petitioner was in total violation of Rule 7 o the Chhattisgarh Panchayat Services

(Discipline and Appeal) Rules, 1999. He further submits that, the law in this regard is by now well settled by a catena of decisions wherein it has been

held that for the purpose of terminating an employee whose services are governed under the Rules of 1999, the respondent authorities are required to

comply with the procedure prescribed under Rule 7. Having not done so, the impugned order is liable to be set-aside on this ground.

The contention of the respondents is that, it is a case where there were large scale of irregularities detected at the time of appointment and on due

verification since it was found that the petitioner also has got advantage of that irregularities, the services have been terminated. Therefore the action

of the respondents cannot be said to be either malafides or in contravention to the provisions of law. He further submits that, since it was a question of

appointment being obtained by playing fraud and mischief, the requirement of compliance of Rule 7 may not be required as it has been duly enquired

into by the appointing authorities themselves and have found that there were certain lapses on part of the petitioner on account of which he was not

entitled for appointment and thus prayed for rejection of the petition.

Recently on an identical set of facts arising out of the same District but from different Janpad Panchayat a bunch of Writ Petitions came up for

hearing before this Court i.e. WPS No.1420/2016 d/on 31/10/2018 & Other connected matters. This Court vide order dated 31/10/2018 decided the

said petitions and while deciding the same had considered the same issues which have been raised by the parties in the present case.

3 to refer to the findings of this Court in It would be relevant at this juncture the said order. For ready reference, paragraphs 9 to 12 is reproduced

herein under:-

Given the aforesaid admitted factual position of the case as also the judgment of this court in the case similarly situated persons belonging to the

other Janpad Panchayat i.e. Janpad Panchayat Saja and also taking note that they were also terminated arising out of the same enquiry and in whose

case there already is an order of setting aside of the termination order, this court in exercise of judicial discipline proprietary and precedence is inclined

to apply the same analogy in deciding the case of the petitioners as well. In the said judgment of Rohini Jha (Supra), this court has observed in

paragraphs 3 to 5 as under :

(3) Admittedly, on certain allegations, show cause notice ""was issued to the petitioners and when the respondent authority was not satisfied with the

reply of present petitioners, their services have been terminated. A Division Bench of this Court in the matter of Rooplal Nayak vs. State of

Chhattisgarh and others, 2006(4) M.P.H.T. 99 (C.G.) has held that any of the major penalty prescribed under Rule 5(b) (iv) of the Rules, 1999 cannot

be imposed on a member of Panchayat service to whom the said Rules are applicable without 4 conducting regular Departmental Enquiry as

envisaged under Rule 7 of the Rules, 1999.

(4) In the case at hand, no departmental enquiry has been held as contemplated under Rule 7. The said provisions uses the words 'formal inquiry' with

further stipulation that when an order for 'formal enquiry' has been made, the disciplinary authority shall frame Definite charges, communicate the

same to the delinquent along with the statement of allegations, requiring him to submit within the specified time a written statement of defence and

also to state whether he desires to be heard in person. Thereafter, the defence is required to to be permitted to inspect and take extracts from the

records, which can be refused for reasons to be recorded in writing. On submission of reply by the delinquent, the disciplinary authority may himself

enquire or appoint an enquiry officer. Appointment of Presenting Officer and seeking assistance of some other officers by the delinquent is also

contemplated therein. The enquiry officer is also enabled to record evidence and thereafter, at the conclusion of the enquiry, the enquiry officer is

supposed to prepare enquiry report, the copy of which is required to be furnished to the delinquent. Thus, the 'formal inquiry' envisaged under the

Rules is akin to the procedure prescribed for a regular enquiry under Rule 14 of the C.G. Civil Services (Classification, Control and Appeal)Rules,

1966.

(5) The materials made available to this Court nowhere indicate that any enquiry as contemplated under Rule 7 has been initiated or conducted against

the petitioner. Therefore, the impugned order of termination is ex facie not sustainable in law and the same deserves to be set aside.

In the instant case also learned counsel for the respondents fairly submits that so far as the present petitioners are concerned, admittedly there

has not been any Departmental Enquiry as such conducted. It was only a preliminary enquiry conducted and on the basis of the report of the

preliminary enquiry the petitioners were issued with show cause notices and thereafter terminated. But, what is admittedly clear is that in the course

of conducting of preliminary enquiry also the petitioners were not taken into confidence neither were they granted opportunity to disprove the

contentions which had been raised by the department or which thedepartment was investigating upon.

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Accordingly, all the writ petitions stand allowed and disposed of in terms of Rohini Jha's case. The impugned orders of termination, rejection of

their appeals by the appellate authority as 6well as revisional authority all stand set aside/quashed for similar reasons as had been held in Rohini Jha's

case, reserving the right of the department to proceed further, if they intend to do so, in accordance with provisions of law.

Having considered the view of this Court in the aforesaid order and the fact that it has based upon the earlier decision of this Court wherein it has

been specifically held that for terminating an employee from service whose services are governed under the Rules of 1999 it is incumbent upon the

respondents to have initiated the proceedings as is required under Rule 7.

Non-compliance of the said rule vitiates the entire action on part of the respondents. The impugned order in the instant case dated 23/06/2014 and

the two orders passed by the Appellate Authority as also by the Revisional Authority dated 09/07/2015 and 07/01/2016 are thus unsustainable and the

same deserve to be and are accordingly set- aside/quashed with consequences to follow.

However, this Court is of the view that since the petitioner has not discharged his duties during the intervening period, she would not be entitled for

the wages for the intervening period. However, the said period would be counted for the purpose of continuity in service.

Needless to mention that, since the Writ Petition is being allowed on the ground on non-compliance of Rule 7, the right of the department would

stand reserved if they feel so may initiate appropriate proceedings in accordance with the said rules.

With the aforesaid observations, the Writ Petition stands allowed and disposed of.