1 2025:CGHC:14290 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Order reserved on: 15.01.2025 Order passed on: 25.03.2025 WPS No. 3759 of 2015 1 - Ravishanker Vyas Diwakar, S/o D.P. Diwaker, Aged About 35 Years, R/o Village Hariyapur, Post Karesra, Chowki Fasterpur, Tahsil And Distt. Mungeli Chhattisgarh. ... Petitioner(s) versus 1 - The State of Chhattisgarh Through its Secretary, Panchayat And Rural Department, Mantralaya, Distt. Raipur Chhattisgarh, 2 - Additional Commissioner, Bilaspur Division, Distt. Bilaspur Chhattisgarh, 3 - Chief Executive Officer Janpad Panchayat Distt. Mungeli Chhattisgarh 4 - Chief Executive Officer, Jila Panchayat Distt. Mungeli Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Parag Kotecha, Advocate For Respondent-State : Mr. Devesh G. Kela, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey CAV Order 1. The present petition has been preferred by the petitioner being 2 aggrieved by the order dated 15.09.2015 (Annexure P/5) passed by respondent No.2 whereby the appeal preferred by the petitioner against the order dated 16.03.2015 (Annexure P/4) passed by respondent No.4, has been dismissed confirming the order passed by respondent No.4 whereby petitioner has been removed from service on the post of Assistant Programmer. 2. Brief facts of the case as mentioned in the petition, are that on 31.01.2011 (Annexure P/1), the petitioner was appointed on contract basis for one year on the post of Assistant Programmer by the Chief Executive Officer Jila Panchayat Bilaspur. The service of the petitioner was continued till the illegal termination. The service of the petitioner was transferred to respondent No. 4 on work distribution in the year 2013. Respondent No. 3 issued a show cause notice against the petitioner on 09/12/2014 about the act which is in violation of Civil Service Conduct Rules 1966. With an adamant approach, further a show cause notice dated 19/12/2014 was issued by respondent No. 3, leveling many allegation against the petitioner. Thereafter, on 26/12/2014, another notice with regard to his absence from duty was issued to the petitioner. Further, a notice was issued to the petitioner on 30/01/2015. Copies of notices are collectively filed as Annexure P/2. Thereafter, on 07/02/2015 (Annexure P/3), the Project Director, District Rural Development Mungeli wrote a letter to respondent No. 3 for sending the CR of the petitioner. Thereafter, on 16/03/2015 (Annexure P/4) directly an order removing the petitioner form service was passed , by the respondent no. 4 leveling an allegation and casting an stigmatic order of removal without holding an enquiry. The petitioner challenged the illegal order dated 16/03/2015, before respondent No. 2 by filing an 3 appeal. Vide order dated 15/9/2015 (Annexure P/5), the respondent no. 2 rejected the appeal of the petitioner holding that there is no illegality in order and further no finding, had been given with regard to averment/ground raised by the petitioner in the memo of appeal. Hence, this petition for following reliefs:- “i. quash/set aside the order/letter dated 15/9/15 (Annexure P/5) and consequentially orders of the respondent no. 4, be also set aside which was passed against the petitioner. ii. direct the respondents to reinstate/permit/appoint the petitioner to the post of Assistant Progammer with all back wages and all other consequential and other benefit to the petitioner. iii. direct the respondents to produce the entire record pertaining to petitioner case. iv. Any other relief which this Hon'ble Court deems fit and proper under the facts and circumstances of the case may also be passed in favour of the petitioner and the cost of the petition may be awarded in favour of the petitioner.” 3. Learned counsel for the petitioner submits that the act and order passed by respondent No. 4 in not continuing with service of the petitioner on the post of Assistant Programmer is illegal, discriminatory, unconstitutional and against the principles of natural justice. The respondent No. 4 removed the petitioner from service without holding any enquiry and passed stigmatize order, which is illegal. No reasonable and fair opportunity was given to the petitioner, before passing the impugned order of his removal from service. No 4 departmental enquiry was conducted nor any opportunity has been granted to the petitioner for producing his defence on the allegation made by the respondents or to cross examine the witnesses. Respondent No.4 without verifying the contents of notice and further without verifying actual fact as to why the work of payment was not made, passed the illegal order of removing the petitioner from service with an stigma. The respondent authorities passed the impugned order against the petitioner without any sufficient cause. Therefore, the impugned order dated 15.09.2015 (Annexure P/5) is liable to be set aside. Reliance has been placed on the judgment of Hon’ble Supreme Court in the matter of Swati Priyadarshini Vs. State of Madhya Pradesh; AIRONLINE 2024 SC 576. 4. On the other hand, learned counsel for the respondents strongly oppose the prayer of the petitioner and submit that the services of the petitioner were governed by the Chhattisgarh Sewa (Samvida Niyukti) Niyam, 2004 and subsequently after the repeal of the 2004 Rules by the Chhattisgarh Civil Sewa (Samvida Niyukti) Niyam, 2012 (hereinafter referred to as the Rules of 2012) came into force on 31.12.2012 after its notification in the Official Gazette. As it is evident from order dated 16.03.2015 (Annexure P/4) passed by respondent No. 4 that the services of the petitioner were not terminated or he was removed from the post on which he was working but the term of his contractual appointment which came to end on 28.02.2015, was opted to not to renew and the petitioner was allowed to be relived from the post of Assistant Programmer on which he was working. The services 5 of the petitioner were purely contractual which were governed by the Rules framed in this regard by the State Government. The competent authority before passing this order, issued several notices to the petitioner. The respondent authority issued notice on 09.12.2014, the contents of this notice are self explanatory and it is clear that the petitioner was not performing his duty sincerely, diligently and with required discipline and according to Rules of 2012. Impugned order was passed and before passing this order, notices were issued on 19.12.2014 and 26.12.2014. Bare perusal of the said notices does not leave any doubt about the conduct of the petitioner. From perusal of show cause notice dated 26.12.2014 and letter dated 30.01.2015 written by respondent No.3, it is clear that the petitioner was found to be absent frequently without having obtained the permission and due to absence and laxity of the petitioner, the payment of wages was getting delayed. Wrong entries in Mass Entry System (MIS), freezing of amount, wrong entry of pipeline in online system and non completion of pipeline work which were attributing in non payment of the wages were found to be attributable to the petitioner. Thus, it is clear that the petitioner was negligent and careless in performing his duties and repeated explaining given to him had not borne any fruit. The petitioner was found to having got the official work done from the unauthorized persons and changed the secret login password without permission of the higher officials. It is clear from order dated 16.03.2015 that it is not a order of his removal from service. Petitioner was relieved due to non renewal of his contractual appointment. The term came to an end on 28.02.2015, therefore, this petition being without any merit is liable to be dismissed. 6 5. Heard counsel for the parties and perused the material placed on record. 6. It is not disputed in this case that as per Annexure P/1 order dated 31.01.2011, the petitioner was appointed on the post of Assistant Programmer on contract basis on a salary of Rs. 12,740/- for one year by the Chief Executive Officer, Jila Panchayat, Bilaspur and service of the petitioner was continued till the passing of the impugned order dated 16.03.2015 (Annexure P/4). 7. As per respondents, petitioner was not removed from service but his further period of the service was not continued. Order dated 16.03.2015 (Annexure P/4) reads as under:- का቟ኋल቟ኋ जिल पं चा቟ኋत, जिल- ुሰ गेल (छ.गे.) Phone No. 07755264177 Email-drda.mungel@gmail.com ्ቅुሰ का/9596/ुሰनरेगे/जि.पं ./2014-15 ुሰ गेल, दिन का 16.03.2015 //आश// ुሰहात्ुሰ गे धी नरेगे अं तगेत नपं पं चा቟ኋत ुሰ गेल ुሰ सं दि पं पंरे पंस्थ ቦኍ रेदिश कारे व्቟ኋसं दिकारे, संहा቟ኋका ቚኘ&ቇኋुሰरे का& ुሰहात्ुሰ गे धी नरेगे का खात दि)दि* गे ुሰस्टरेरे&ल नरेशन, MIS एं ट-. का का&ड नरेशन, पंइपं लईन एंन्ट-. एंफ.ट.ओ. सं बं धी एं ट- का቟ኋ5 ुሰ गेड़बंड़ तथ संतत7 लपंरेहा कारेन एं का቟ኋश8ल ुሰ सं धीरे हात ुሰ9जिखाका एं जिलजिखात दिन:श& तथ रे कारेण बंतओ सं<चान का सं त&षቚኘ बं ቚኘस्त त कारेन ुሰ दिफल रेहान एं का቟ኋश8ल ुሰ अंपंदि>त सं धीरे नहा? कारेन, फलत@ ुሰ गेल नपं का सं8काड़A ुሰ<रेA काB ुሰ<रे काB रेदिश का भु गेतन ुሰ कादिDनई एं दिल बं हात जिम्ुሰरे हा&न का कारेण इनकाB सं दि सं & दिका 28 फरेरे 2015 का& स्ुሰ संुሰ्቎ हा&न थ का ननकारेण न कारेत हाGएं इन्हा पंुሰ ्ሹ दिका቟ኋ त हा8। 7 (कालक्टरे एं जिल का቟ኋ्ቅुሰ संुሰन्቟ኋका ቛኋरे अंन ुሰ&दित) ुሰ ख्቟ኋ का቟ኋपंलन अंजिधीकारे जिल पं चा቟ኋत ुሰ गेल (छ.गे.) काुሰ का/9596/ुሰनरेगे/जि.पं ./2014- ुሰ गेल, दिन का 16-.03.2015 ቚኘदितजिलदिपं:- 1. आ቟ኋ ्ሹ, ुሰहात्ुሰ गे धी नरेगे दिभुगेध्቟ኋ> का቟ኋल቟ኋ इ ቖኋत भुन न቟ኋ रे቟ኋपं रे काB ओरे संरे सं<चानथ ቚኘदिषत। 2. सं भुगे आ቟ኋ ्ሹ, दिबंलसंपं रे सं भुगे दिबंलसंपं रे का& संरे सं<चानथ ቚኘदिषत। 3. कालक्टरे, जिल ुሰ गेल का& संरे सं<चानथ ቚኘदिषत। 4. ुሰ ख्቟ኋ का቟ኋपंलन अंजिधीकारे नपं पं चा቟ኋत ुሰ गेल काB ओरे सं<चानथ ቚኘदिषत। 5. ቦኍ रेदिश कारे व्቟ኋसं दिकारे नपं पं चा቟ኋत ुሰ गेल का& सं<चानथ एं पंलनथ। ुሰ ख्቟ኋ का቟ኋपंलन अंजिधीकारे जिल पं चा቟ኋत ुሰ गेल (छ.गे.) 8. Against the aforesaid order dated 16.03.2015, petitioner filed appeal before the Commissioner but the learned Commissioner vide order dated 15.09.2015 dismissed the said appeal and operative para of the said order reads as under:- “…….. ቚኘकारेण का अंल&कान दिका቟ኋ गे቟ኋ अंधीनस्थ ቚኘजिधीकारे ቛኋरे रे आश का पंरिरेशलन दिका቟ኋ गे቟ኋ। अंपंलथP ቛኋरे अंपंन अंपंल आन ुሰ उቤኔखा दिका቟ኋ हा8 दिका उन्हा सं नई का अंसंरे ቚኘन नहा? दिका቟ኋ गे቟ኋ तथ अंपंलथP काB दिन቟ኋ दि्ሹ छ० गे० जिसंदिल सं आचारेण दिन቟ኋुሰ 1965 का तहात दिन቟ኋ दि्ሹ दिका቟ኋ गे቟ኋ & दिका पं<णत@ गेलत हा8 अंपंलथP काB दिन቟ኋ दि्ሹ सं दि छ० गे० जिसंदिल सं 2004, 2012 का तहात दिका቟ኋ गे቟ኋ हा8 जिसंका तहात छቈኍसंगेढ़ शसंन संुሰन्቟ኋ ቚኘशसंन दिभुगे ुሰ ቔኋल቟ኋ रे቟ኋपं रे का एंफ-9-1/2012/1-3 रे቟ኋपं रे 8 दिन का 17/01/2013 का तहात छቈኍसंगेढ आश काुሰ का जिसंदिल सं (सं दि दिन቟ኋ दि्ሹ) दिन቟ኋुሰ 2004 का& दिल&दिपंत कारेत हाGएं दिन቟ኋुሰ 2012 का दिन቟ኋुሰ रेपंቔኋ ुሰ दिन का 31/12/2012 एं सं श&धीन अंजिधीसं<चात दिन का 03/01/2013 का अंन संरे का दिडका (3) सं दि पंरे दिन቟ኋ दि्ሹ काB उपं቟ኋ ्ሹत का आ कालन कारे संुሰन्቟ኋ ቚኘशसंन एं दित दिभुगे काB संहाुሰदित पंरे अंजिधी रेज्቟ኋ संरेकारे अंजिधीकातुሰ 5 ष तका बंढ़቟ኋ संका गे। का दिडका (4) सं दि दिन቟ኋ दि्ሹ काB अंजिधी काB संुሰदि्቎ पंरे सं दि दिन቟ኋ दि्ሹ स्ुሰ संुሰ्቎ ुሰन गे तथ सं संुሰ्቎ कारेन का जिलएं पंYथका सं आश रे कारेन आश्቟ኋका नहा? हा&गे। का दिडका (5) संदि दिन቟ኋ दि्ሹ काB अंजिधी ुሰ &न& पं>& ुሰ सं दिकासं एंका पं> ቛኋरे एंका ुሰहा काB पं< सं<चान ቟ኋ इसंका एं ुሰ एंका ुሰहा का तन कारे सं दि दिन቟ኋ दि्ሹ संुሰ्቎ काB गे। ऐसं ቝኌस्थदित ुሰ अंधीनस्थ ቚኘजिधीकारे ुሰ ख्቟ኋ का቟ኋपंलन अंजिधीकारे नपं पं चा቟ኋत ुሰ गेल ቛኋरे रे आश दिनका 16/03/2015 ुሰ दिकासं ቚኘकारे हास्त>पं कारेन काB आश्቟ኋकात नहा हा8। अंत@ उ्ሹ आश ቝኌस्थरे रेखा त हा8। अंपंलथP व्रे ቚኘस्त त अंपंल दिनरेधीरे हा&न का कारेण दिनरेस्त दिका቟ኋ त हा8।" 9. Hon’ble Apex Court in the matter of Swati Priyadarshini Vs. State of Madhya Pradesh; AIRONLINE 2024 SC 576 held in paras 34 and 35 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 SCS (AIROnline 1957 SC 4): "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 Union of India [(1953) 1 SCC 420: (1953) SCR 655 (AIR 1953 SC 250)]. 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 [(1955) 1 SCR 26 (AIR 1954 SC 369)]. In 9 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, CJ, has said in Shrinivas Ganesh v. Union of India [LR 58 Bom 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 10 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 he 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 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 11 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." (emphasis supplied) 35. We would only be adding to verbosity by multiplying authorities. In view of the above dictum, it is clear that the Respondents did not comply with Clause 4 either the first part or the second part thereof. The order dated 30.03.2013 does visit the appellant with evil consequences and would create hurdles for her re further employment.” 10. In light of above, it is clear that the impugned order (Annexure P/4) is stigmatic and it is also an admitted position that without conducting any departmental enquiry, the said order was passed. It is clear that the service of the petitioner was on contractual basis. 11.The Hon'ble Apex Court observed in the case of U.P. State Road Transport Corporation & Ors. vs. Brijesh Kumar & Anr. Order dated 28.08.2024, reported in 2024 SCC OnLine SC 2282, held in para 19, which reads as under- "19. The services of the respondent have been determined solely on the ground of misconduct as alleged but without holding any 12 regular inquiry or affording any opportunity of hearing to him. The termination order has been passed on the basis of some report which probably was not even supplied to the respondent. No show cause notice appears to have been issued to the respondent. Therefore, the order of termination of his services, even if on contractual basis, has been passed on account of alleged misconduct without following the Principles of Natural Justice. The termination order is apparently stigmatic in nature which could not have been passed without following the Principles of Natural Justice.” 12. In the light of the aforesaid discussion and in the light of above judgment, it is clear that the impugned order dated 16.03.2015 (Annexure P/4) is stigmatic in nature and no proper enquiry was conducted against the petitioner, therefore, the impugned order dated 16.03.2015 (Annexure P/4) and also the appellate order dated 15.09.2015 (Annexure P/5) are hereby quashed/set aside, petitioner is reinstated in his post with 50% back wages. Respondent authorities are directed to allow the petitioner to perform his duty attached to the post. However, liberty is granted to the respondents to initiate proper departmental enquiry against the petitioner, if so desire and after affording reasonable opportunity of hearing/defence to the petitioner, pass appropriate order in accordance with law and also adhering to the principles of natural justice. 13. Thus, the writ petition stands allowed to the above extent. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV