2025:CGHC:31606 HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4329 of 2018 Smt Sadhna Shrivastava W/o Shri A. K. Shrivastava, Aged About 53 Years R/o C - 100, Vip Estate Near Ashoka Ratan Gate No. 2, Vidhan Sabha Road, Tehsil And District Raipur Chhattisgarh. ... Petitioner versus 1 - State of Chhattisgarh, Through Secretary Department of Woman And Child Development, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2 - Commissioner, Woman and Child Development, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh. ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Shobhit Koshta, Advocate, holding the brief of Mr. Sunil Otwani, Advocate For Respondents/State : Ms. Neelima Singh Thakur, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 09.07.2025 1) The petitioner has challenged the legality, validity and propriety of the order dated 03.05.2018 passed by respondent No.2, whereby the petitioner was removed from the services. 2) Mr. Shobhit Koshta, learned counsel appearing for the petitioner would submit Digitally signed by NADIM MOHLE that the petitioner was appointed to the post of Observer in the Department of Women and Child Development. He would further submit that in December 2006, the petitioner suffered a major orthopaedic ailment, due to which she applied for casual leave from 06.12.2006 to 08.12.2006. He would also submit that as there was no improvement in the health condition of the petitioner, she sought extension of leave up to 05.01.2007. The petitioner regularly informed the Project Officer about her health condition and submitted medical certificates accordingly. Her absence continued due to her prolonged illness till 22.07.2007. 3) It is submitted that despite the submission of proper medical documents and the application for extension of leave, her medical claims were intentionally delayed. She made several representations regarding the alleged ill-treatment. 4) Mr. Koshta would argue that in the year 2012, nearly six years after the incident, the department initiated a departmental enquiry alleging that the petitioner was unauthorizedly absent during the period from 06.12.2006 to 22.07.2007. The petitioner actively participated in the enquiry proceedings and submitted all supporting documents. He would further argue that the Enquiry Officer admitted that though the medical certificates were submitted, but the absence was unauthorized. Consequently, a minor penalty stricture was inflicted on the petitioner by an order dated 09.03.2018 (Annexure P-2). 5) He submits that on 19.02.2018, the petitioner submitted a letter (Annexure P-3) to the Director, stating that she had been on medical leave since 14.10.2013 and was still unfit for duty. Therefore, she opted for voluntary retirement, but instead of considering her application objectively, the petitioner was removed from service by an order dated 03.05.2018, on the ground that she remained absent from duties for a period of more than three years. Mr. Koshta would also submit that the petitioner was a regular and permanent Government servant, she could not have been removed from services without following the due process of law. He has placed reliance on the judgment passed by this Court in the matter of Krishan Kumar Kosaria v. State of Chhattisgarh1 6) On the other hand, learned State counsel opposes the submissions of Mr. Koshta and submits that the petitioner failed to attend duty despite the issuance of a show cause notice, which was also served through paper publication. It is argued that due to long absence from duty, the petitioner’s services were terminated under Rule 11 of the Chhattisgarh Civil Services (Leave) Rules, 1977 (for short, Rules, 1977), and Fundamental Rule 18 (for short, FR-18). It is also submitted that earlier also, the petitioner remained absent and was penalized after a departmental enquiry; therefore, the present petition deserves to be dismissed. 7) Heard learned counsel for the parties and perused the documents placed on the file. 8) Admittedly, the petitioner was a regular Government employee. On account of her medical condition, she could not join her duties from 14.10.2013, and ultimately, vide order dated 03.05.2018, her services were terminated. 9) Perusal of the termination order (Annexure P/1) reveals that no departmental enquiry was conducted according to provisions of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966, (for short, CCA Rules, 1966) and the termination was effected solely under Rule 11 of the Rules of 1977 and FR-18. 1 2023 SCC OnLine Chh 1646 10) The legal issue raised in the present case is no longer res integra in view of the decision of the Division Bench of this Court rendered in the matter of Krishan Kumar Kosaria v. State of Chhattisgarh, wherein, in paragraphs 13, 28, and 29, the Hon’ble Division Bench held as under:- “13.The combined effect of Rule 11 of the Rules of 1977 and F.R. 18 would be that except in exceptional circumstances, no Government servant shall be granted leave of any kind for a continuous period exceeding five years and as such, neither Rule 11 of Leave Rules of 1977 nor Rule 18 of Fundamental Rules expressly provide for abandonment of service on absence of continuous period exceeding five years. 28. Turning to the facts of the present case in light of the decisions rendered by the Supreme Court in Jal Shanker (supra), Deokinandan Prasad (supra) and Akshaya Kumar Deb (supra), it is quite vivid that neither in the Rules of 1977 nor in the applicable fundamental rules, there is any provision of abandonment of service for a continuous absence exceeding five years and even otherwise, petitioner is a permanent Government employee and he has constitutional safeguard and protection under Article 311(2) of the Constitution of India, as such, it was absolutely imperative on the part of the competent authority to give an opportunity of showing cause to the petitioner against his proposed termination from service particularly when the petitioner was insisting that he could not join duty on account of medical reasons and due to circumstances which were beyond his control. 29. 29. Reverting finally to the facts of the present case in light of the aforesaid principle of law laid down by their Lordships of the Supreme Court in Moti Ram Dheka (supra), it is quite vivid that it is not in dispute that the appellant herein was a confirmed employee on the post of Assistant Grade-III and he has been dismissed from service on the ground that he remained absent for a period of more than five years, but no reasonable opportunity of hearing as contemplated under Article 311(2) of the Constitution of India has been provided to him even without serving show cause notice which is absolutely illegal and bad in law. Once the appellant has been appointed on substantive post and his services have been confirmed, even if he has conducted misconduct, the procedure envisaged under Article 311(2) of the Constitution of India was required to be followed and the appellant ought to have been given reasonable opportunity of being heard instead of simply terminating his services holding that his conduct is violative of Rule 3 (1)(il) of the Rules of 1965 and contrary to Rule 11 of the Rules of 1977. As such, even if no leave was grantable to the appellant after the period of five years by virtue of Rule 11 of the Rules of 1977 read with Rule 18 of the Fundamental Rules, yet, the appellant was required to be proceeded departmentally in view of the procedure contained in Rule 24(2) of the Rules of 1977 read with Article 311(2) of the Constitution of India which is the constitutional protection guaranteed to the appellant and in view of the principles of law laid down by their Lordships of the Supreme Court in the matters of Jai Shanker (supra), Deokinandan (supra) and Akshaya Kumar Deb (supra).” 11)In the present case also, the services of a confirmed government servant have been terminated on the ground of prolonged absence exceeding three years. However, no reasonable opportunity of hearing as contemplated under Article 311(2) of the Constitution of India was granted to her, nor was any show cause notice issued prior to the order of termination. Therefore, the impugned order (Annexure P/1) is not sustainable in the eyes of law and is accordingly quashed. The petitioner shall be entitled to reinstatement in service. 12) With regard to arrears of salary/back wages, the petitioner would be at liberty to make a representation before respondent No.2, stating that she was not gainfully employed anywhere during the period of her absence and in turn, the respondent authorities shall verify the facts and take a reasoned decision regarding the payment of arrears/back wages within a period of 6 months. 13) Accordingly, the writ petition is allowed to the extent indicated above. Sd/- (Rakesh Mohan Pandey) NADIM Judge