1 2025:CGHC:10748 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1625 of 2025 1 - Chandan Prasad Sah S/o Bigu Sah Aged About 29 Years R/o Village- Khara Kona (Bargedi), Tahsil- Lundra, Distt. - Surguja (C.G.) ... Petitioner Versus 1 - State Of Chhattisgarh Through - The Secretary, Department Of Higher Education, Mahanadi Bhawan, New Raipur, Distt. - Raipur (C.G.) 2 - The Commissioner Surguja Division, Ambikapur, Distt. - Surguja (C.G.) 3 - The Collector Balrampur, District Balrampur-Ramanujganj (C.G.) 4 - The District Education Officer Balrampur, District Balrampur-Ramanujganj (C.G.) 5 - The Principal Swami Atmanand Govt. Upgraded (English Medium) Higher Secondary School - Rajpur, District Balrampur-Ramanujganj (C.G.) ... Respondents For Petitioner : Mr. A.N. Pandey, Advocate For Respondents/State : Mr. Suyashdhar Badgaiya, Dy. G.A. SB: Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 05/03/2025 1. By way of this writ petition, the petitioners have prayed for following reliefs: “10.1. That, the Hon'ble Court may kindly be pleased to direct the Respondent No. 3 to reinstate the petitioner on the post of Teacher at SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 Swami Atmanand Upgraded (English Medium) Higher Secondary School, Rajpur, District – Balrampur-Ramanujganj (C.G.) in pursuance of the order passed by the learned Commissioner Surguja Division, Ambikapur dated 29.11.2024 (Annexure P/7) within stipulated period. 10.2. Any other relief or reliefs may also be granted to the petitioner which this Hon’ble Court deems fit and proper in the facts and circumstances of the case.” 2. Learned counsel for the petitioner submits that the petitioner is a Teacher and is appointed on contractual basis for teaching Social Sciences in Swami Atmanand Excellence English Higher Secondary School, Rajpur, District – Balrampur-Ramanujganj. He was appointed on the said school vide order dated 18.04.2022 (Annexure P/1) and since then, the petitioner was working in the said school with utmost care and caution. However, on 24.10.2024 (Annexure P/4), a stigmatic order of removal has been passed against the petitioner stating that he has physically assaulted 10 students of the said school and due to which, the students have faced mental trauma and since then, those students were having physical and mental issues. Hence, the petitioner has violated his conduct of service and has also violated the basic rights of the students for which, certain enquiry has been conducted against him. Subsequently, during the course of enquiry, it was prima facie found that the petitioner has violated Rule 3 of the Chhattisgarh Civil Services (Conduct) Rules, 1965 as also, the rules prescribed under the Chattisgarh Civil Services (Contractual Appointment) Rules, 2012 and accordingly, the 3 petitioner vide the impugned order dated 24.10.2024 (Annexure P/4) the petitioner was removed from service by the respondents. 3. Learned counsel for the petitioner submits that the order dated 24.01.2024 (Annexure P/4) is a stigmatic order and is bad in law. He submits that the respondents are required to provide an opportunity of hearing to the petitioner by holding an enquiry, which was not done by the respondents and without holding any enquiry, the petitioner has been removed from service which is arbitrary and against the principles of natural justice. In support of his contention he places reliance upon the decision of the Hon’ble Supreme Court in the case of Swati Priyadarshini Vs. State of Madhya Pradesh & Ors. reported in (2024) SCC OnLine SC 2139 and submits that without there being any opportunity of hearing, the petitioner cannot be removed from service in the manner in which, the respondents authorities have passed the impugned order. 4. On the other hand, learned counsel appearing for the Respondents/State opposes the said submission of the counsel for the petitioner and would submit that from the order itself, it would appear that the petitioner has violated Rule 3 of the Chhattisgarh Civil Services (Conduct) Rules, 1965 and thus, the order impugned dated 24.10.2024 has rightly been passed by the respondents. He also submits that the order has been passed on 24.10.2024 and the present petition has been filed after huge 4 delay and thus, the petition is liable to be dismissed on the ground of delay and latches. 5. I have heard learned counsel for the respective parties and perused the documents placed on record. 6. The view taken by the Hon’ble Supreme Court in the matter of Swati Priyadarshini (Supra) goes to show that before passing any stigmatic order for removal of any employee from service, a departmental enquiry is required to be conducted, which has not been done in the instant case. In para 34 of the said judgement, the Hon’ble Supreme Court has held as under:- “34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v. Union of India, 1957 SCC OnLine SC 5: “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 Chander Anand v. Union of India [(1953) 1 SCC 420 : 1953 SCR 655]. 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 Uttar Pradesh [(1954) 1 SCC 572 : (1955) 1 SCR 26]. 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 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 5 Ganesh v. Union of India, [58 Bom LR 673 : AIR 1956 Bom 455] 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 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 forefeiture 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 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 6 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) 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.”. 7. Considering the facts and circumstances of the case, submissions made by the parties and further considering the aforesaid aspect of the matter as also, the decision of the Hon’ble Supreme Court in the case of Swati Priyadarshini (Supra), this Court is of the opinion that the impugned order dated 24.10.2024 (Annexure P/4) has not been passed in accordance with law. The petitioner, even though he is a contractual employee is required to be given an opportunity of hearing and the respondent authorities are under an obligation to conduct an enquiry if prima facie, they find any misconduct on the part of the petitioner, which in the present case 7 was not done. As such, the impugned order dated 24.10.2024 (Annexure P/4) is liable to be and accordingly, quashed. However, the respondent authorities will be at liberty to initiate any proceedings as available under the law by giving an opportunity of hearing to the petitioner. 8. Accordingly, this petition stands disposed of with aforesaid observations and directions. Sd/- (Amitendra Kishore Prasad) Judge Dey