1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4251 of 2018 1 - Gendlal Yadav (Died) Through Lrs. S/o (As Per Honble Court Order Dated 10-02-2025) 1.1 - Amit Yadav S/o Late Shri Gendlal Yadav Aged About 33 Years R/o Village- Mohandi, Post- Bijtala, P.S. Dhimka, Tah. And District Rajnandgaon, Chhattisgarh. 1.2 - Pushpak Yadav S/o Late Shri Gendlal Yadav Aged About 30 Years R/o Village- Mohandi, Post- Bijtala, P.S. Dhimka, Tah. And District Rajnandgaon, Chhattisgarh. 1.3 - Dulari Bai Wd/o Late Shri Gendlal Yadav Aged About 60 Years R/o Village- Mohandi, Post- Bijtala, P.S. Dhimka, Tah. And District Rajnandgaon, Chhattisgarh. 1.4 - Lakshmi Yadav W/o Late Shri Tikam Yadav Aged About 37 Years D/o Late Shri Gendlal, R/o Village- Ghumka, District Rajnandgaon, Chhattisgarh. 1.5 - Bhagyavati Yadav W/o Shri Girijashankar Yadav Aged About 42 Years D/o Late Shri Gendlal Yadav, R/o Village- Ghumka, District Rajnandgaon, Chhattisgarh. 1.6 - Savita Yadav W/o Shri Dinesh Yadav Aged About 39 Years D/o Late Shri Gendlal, R/o Village- Bahora, P.S. Somni, District Rajnandgaon, Chhattisgarh. 1.7 - Sunita Yadav W/o Shri Satruhan Yadav Aged About 37 Years D/o Late Shri Gendlal Yadav, R/o Village- Chuikhadan, P.S. Chuikhadan, District Khairagarh, Chhattisgarh. 1.8 - Nitu Yadav W/o Shri Uttam Yadav Aged About 34 Years D/o Late Shri Gendlal, R/o Village- Mohandi, P.S. Ghumka, District Rajnandgaon, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary Panchayat And Social Welfare Department Mahanadi Bhawan Raipur Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2 - Director Panchayat , Panchayat Directorate 36 - C - Ii, Block - 2, Second Flore, Indrawati Bhawan New Raipur, Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Collector , Rajnandgaon District Rajnandgaon Chhattisgarh. 4 - Chief Executive Officer , Zila Panchayat Rajnandgaon Chhattisgarh. -2- 5 - Chief Executive Officer , Janpad Panchayat Rajnandgaon Chhattisgarh. ---- Respondents For Petitioners : Mr. H.V. Sharma, Advocate For State : Mr. Abhyuday Tripathi, PL For Respondent No.4 &5 : Mr. Sudeep Verma, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 16.04.2026 1. The petitioners have filed this petition seeking following relief (s) : “10.1 It is therefore prayed that this Hon'ble court may kindly be pleased to issue a writ of CERTIORARI quashing the order of termination dated 22.04.2017 and the major penalty imposed on the petitioner by the authority respondent No.2 having no jurisdiction to exercise the power also the inquiry report without affording proper opportunity of hearing to the petitioner. 10.2. It is therefore prayed that this Hon'ble court may kindly be pleased to direct the respondents to release the salary from the date of order of termination till the date of restatement and other consequential monitory benefit with interest, in the interest of justice. 10.3 It is therefore prayed that this Hon'ble court may kindly be pleased to issue any writ or direction or order as deem fit in the interest of justice.” 2. The facts of the present case are that initially, this petition was filed by late Gendlal Yadav, who died during the pendency of writ petition. 3. As present is a matter of termination of services from the post of Secretary, Gram Panchayat Mohandi, therefore, legal representatives of late Gendlal Yadav were substituted to assail the said order. 4. Mr. Sharma, learned counsel appearing for the petitioner would submit that late Gendlal Yadav was appointed as Panchayat Karmi 3 of Gram Panchayat Mohandi vide order dated 13.11.1995. Thereafter, he was declared Secretary of Gram Panchayat according to the provisions of Section 69(2) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993. He would further submit that services of the petitioner were transferred from Gram Panchayat Indawani to Gram Panchayat Bakal vide order dated 16.11.2016. He would contend that while late Gendlal Yadav was posted at Gram Pachayat Mohandi, an inquiry was initiated against him by the Deputy Director, Panchayat. He would contend that late Gendlal Yadav filed reply to show-cause notice and a departmental inquiry was initiated against him, wherein, the Inquiry Officer found the allegations proved. The report was submitted to the Chief Executive Officer, Zila Panchayat Rajnandgaon, who inflicted penalty of removal from services. He would further contend that the respondent authorities failed to comply with the provisions of Rule 7 of Chhattisgarh Panchayat Service (Discipline and Appeal )Rules, 1999, therefore, order is bad in law. He would pray to quash the order dated 22.04.2017 (Annexure P/1). 5. On the other hand, learned counsels appearing for the respondents would oppose submissions. They would submit that sufficient opportunity was afforded to late Gendlal Yadav. A show- cause notice was issued along with relevant documents and a detailed reply was filed. They would further submit that the Inquiry Officer was appointed, who conducted inquiry and thereafter, inquiry report was placed before the Disciplinary Authority. It is argued that the Inquiry Officer found the allegations proved and -4- therefore, the disciplinary authority inflicted penalty of removal from services. It is also argued that the order of termination of services is appealable and the petitioners have efficacious alternative remedy. They would submit that the present petition deserves to be dismissed. 6. Heard the learned counsel appearing for the parties and perused the documents placed on record. 7. Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal)Rules, 1999 is reproduced herein below : “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. (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. (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: 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. (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 5 recommendation alongwith all the inquiry papers. (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. (6) If the servant of the Panchayat Service desires to be heard in person, he shall be so heard. If he so destres 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: Provided that the Enquiry Officer may, for reasons to be recorded in writing, refuse to call a witness. (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. (8) The proceedings conducted against the persons charged shall contain a sufficient record of (i) the charges framed against such person and the statement of allegations: (ii) the written statement of defence if any: (iii) the oral evidence taken in the course of the inquiry: (iv) the documentary evidence considered in the course of the inquiry- (v) the orders, if any, made by the Enquiry Officer or the discipli-nary authority as the case may be with regard to the inquiry: (vi) a report setting out the findings on each charge and the reasons therefor. (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 -6- 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. (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. (11) The orders passed by the disciplinary authority shall be communi-cated 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.” 8. Perusal of reply filed on behalf of respondents No.4 & 5 would show that a show-cause notice along with article of charge was issued to late Gendlal Yadav, which was replied and thereafter, the Chief Executive Officer, Janpad Panchayat conducted an inquiry and submitted its report. It appears that no formal inquiry as provided under Rule 7 of the Rules of 1999 was conducted. 9. The contention of respondents No.4 & 5 that late Gendlal Yadav was holding a temporary post, as such no enquiry was necessary, as the termination order was not punitive and it was termination simpliciter in terms of the appointment order, cannot be accepted. On perusal of the papers it is clear that it was not a termination simpliciter but the termination order was passed on the basis of 7 certain allegations which were found proved. 10.The Supreme Court in the case of Anoop Jaiswal Vs. Government of India and another reported in 1984(2) SCC 369 has observed in para 12, as under :- "12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee." 11.The Supreme Court in the case of Indra Pal Gupta Vs. Managing Committee, Model Inter College, Thora, reported in 1984(3) SCC 384 has observed in paragraphs 10 and 11, as under: "10. It is seen from the letter dated June 30, 1969 by which the services of the appellant were terminated that the resolution of the Managing Committee dated April 27, 1969 is made a part of it by treating it as an enclosure to that letter. The resolution actually begins with a reference to the report of the Manager, and states that the facts contained in the report were 'serious' and "not in the interests of the institution". It further refers to the fact that the appellant was asked to give his explanation to the allegations made in the said report. That report stated: It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take that botheration. 11. The above report was the real foundation on which the decision of the Managing Committee was based. This is a case where the order of termination issued is merely a camouflage for an order imposing the penalty of termination of service on the ground of misconduct....…" -8- 12.The Supreme Court in the case of Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another, reported in 1999(2) SCC 21 has observed in para 34, as under :- "34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive." 13.The Supreme Court in the case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and other, reported in 1999(3) SCC 60 has observed in para 35, as under :- "35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be Contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted....…" 14.The Supreme Court in the case of Nar Singh Pal Vs. Union of India and others, reported in 2000(3) SCC 588 has held as under :- "The appellant, although a casual labour, had acquired temporary status. Once an employee attains the "temporary" status, he becomes entitled to certain benefits one of which is that 9 he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other articles dealing with services under the Union of India. The services were terminated on account of the allegation of assault made against the appellant. The order of termination in the instant case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of punishment and, therefore, was an order of dismissal which, having been passed on the basis of preliminary inquiry and without holding a regular departmental inquiry, cannot be sustained." 15.The Supreme Court in the case of Chandra Prakash Shahi Vs. State of U.P. and others, reported in 2000(5) SCC 152 has observed in para 12, as under :- "12. Now, it is well settled that the temporary government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously-worded order to look at the real face of the order and to find out whether it is an innocent as worded. (See: Parshotam Lal Dhingra Vs. Union of India.) It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was "founded" on those factors or other disqualifications." 16.The Supreme Court in the case of State of Punjab and others -10- Vs. Balbir Singh, reported in 2004(11) SCC 743 has observed in para 7, as under ;- "7. Thus the principle that in order to deternine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the "object of the enquiry". If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa Vs. Ram Narayan Das. It was held that one should look into "object or purpose of the enquiry" and not merely hold the termination to be punitive merely because of an antecedent enquiry. Whether it (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry...…" 17. It is further admitted by all the parties that the procedure for holding an enquiry is prescribed under Rule 7 of the Rules 1999 for imposition of major penalty was not followed. Hence, the termination is bad and vitiated on the ground of non-compliance of the statutory provisions and denial of the principles of natural justice. It amounts 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 is in fact penal in nature having civil consequences and as such the elaborate provision of Rule 7 of the Rules 1999 was applicable in the case of late Gendlal Yadav before terminating his services. 11 18. With regard to the availability of the alternative remedy it is well settled that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of the compulsion. In the present case the facts are not disputed. The entire case rests on the infraction of constitutional protection prescribed under Article 311(2) of the Constitution of India and non- application of the statutory provisions, as such the alternative remedy may not be a proper forum. The Supreme Court in the case of Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd and others, reported in 2003 (2) SCC 107 in para 7 has held as under :- "7........suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction of the vires of an Act is challenged…" 19. For the reasons and the discussions made hereinabove, and the law laid down by the Supreme Court in various cases, cited above, the order of termination dated 22.04.2017 is bad and is quashed. 20.On the question of back-wages, it is informed by Mr. Sharma that late Gendlal Yadav died on 03.08.2024 but at the same time, no foundation has been laid to establish the fact that he was gainfully employed elsewhere. As the order of termination has been quashed on account of non-compliance of statutory provisions, -12- therefore, the petitioners would be entitled for 30% back wages from the date of order of termination till date of superannuation of late Gendlal Yadav or his death whichever is later. 21.Accordingly, the petition is allowed. Sd/- (Rakesh Mohan Pandey) Judge Rekha