1 2025:CGHC:4566 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7424 of 2022 Keshav Prasad Jaiswal S/o Resham Lal Jaiswal Aged About 40 Years Block Program Manager, Community Health Center Baramkela, At Present R/o Baramkela, Tehsil Baramkela, District Raigarh (C.G.) ... Petitioner versus 1 - State Of Chhattisgarh Through Secretary, Health And Family Welfare Department, Mahanadi Bhawan, Mantralaya, Capital Complex, Atal Nagar, Nawa Raipur, District Raipur (C.G.) 2 – Commissioner, Health Services, Directorate, Indrawati Bhawan, Mantralaya, Capital Complex, Atal Nagar, Naya Raipur, District Raipur (C.G.) 3 - Joint Director, National Health Mission, Nawa, Raipur, District Raipur (C.G.) 4 - Mission Director, National Health Mission, Chhattisgarh Raipur, 4th Floor, Chhattisgarh Housing Board, Commercial Complex (South-East Corner) Sector-27, New Raiur, District Raipur (C.G.) 5 - Chief Medical And Health Officer, Raigarh, District Raigarh (C.G.) 6 - National Health Mission Chhattisgarh Through Its Director, National Health Mission, 4th Floor Chhattisgarh Housing Board, Commercial Complex (South-East Corner) Sector-27, Naya Raipur, District Raipur (C.G.) ... Respondents (Cause title taken from Case Information System) For Petitioner : Ms. Anushka Sharma, Advocate appears on behalf of Shri Manoj Paranjpe, Advocate. For State : Shri Abhishek Gupta, PL. GOURI MUDALIAR Digitally signed by GOURI MUDALIAR Date: 2025.02.28 11:40:03 +0530 2 For Respondents No.3, 4 and 6. Shri C. Jayant K. Rao, Advocate. Hon’ble Shri Justice Amitendra Kishore Prasad Order on Board 24/01/2025 1. The petitioner by way of this petition is seeking indulgence of this Court while challenging the legality of order dated 26/10/2022 whereby the services of the petitioner has been terminated according to clause 40 of the Human Resource Policy, 2018 (hereinafter referred to as ‘the Policy of 2018’). The order dated 26/10/2022 was passed as per recommendation made by the Chief Medical and Health Officer (CMHO), Raigarh which is infact an order of termination which is contrary to clause No.34.7 and 40 of the Policy of 2018. The CMHO is having no authority and jurisdiction to pass impugned order. It is palpably illegal and suffers with vice of jurisdiction, as such, the petitioner has challenged the same and is praying following reliefs:- “(i)That, this Hon’ble Court may kindly be pleased to issue a writ/writs,direction/directions, order/orders quashing the impugned order dated 26.10.2022, passed by the Mission Director and the respondent authorities may further be directed not to take any coercive action against the petitioner without conducting any proper departmental enquiry. (ii)That, this Honble Court may kindly be pleased to grant any other relief(s), which is deemed fit and proper in the aforesaid facts and circumstances of the case.” 3 2. According to the petitioner, his services has been terminated with the aid of clause 34.7 and clause 40 of ‘the Policy of 2018’. However, in the present case, it would not be applicable. According to clause 34.7 if any contractual employee is absent from duty without any leave or permission for a period of 30 days, he would be removed from services. Clause 40 says that if any contractual employee would be found involved with the co-employee in sexual harassment matter in the work place, then he would be removed from services. On the basis of complaint, an FIR was lodged on 31/08/2022 for offence punishable under Section 354 and 509 of IPC at the instance of the complainant. The petitioner was arrested on 6/09/2022 and was granted bail by the Additional Sessions Judge, Sarangarh on 20/09/2022 and thereafter he was permitted to join his services on 23/09/2022. On 13/09/2022 a notice was issued to the petitioner by the Mission Director when he was in jail and another notice was issued on 7/09/2022 and reminder letter was issued on 7/10/2022. After receipt of the notice, the petitioner filed a reply dated 10/10/2022 to the concerned authority. After receipt of the aforesaid notice, the petitioner replied the notice, however after filing of the reply, the reply was yet to be considered and no final order was passed, but subsequently on 11/10/2022 the CMHO has directed the Mission Director to remove the petitioner from his services. The trial of the criminal case is still pending. It is yet to be decided and it has not been proved that the petitioner has committed offence or not. No departmental enquiry has been conducted and further no enquiry as directed by the Hon’ble Supreme Court in the matter of Vishakha Vs. State of Rajasthan reported in 1997 (6) SCC 241 has been conducted and without there being any material, the petitioner has 4 been removed from services. When recommendations were made for removal of the petitioner from the service, the petitioner has challenged the same in WPS No.7130/2022 and the matter is still pending for consideration, however taking advantage of the pendency of the earlier petition WPS No.7130/2022 before this Court, the impugned order of termination/removal has been passed against the petitioner which is per se illegal and hence interference and indulgence of this court is sought for by the petitioner. 3. Learned counsel for the petitioner submits that it is a case in which without there being any departmental enquiry neither notice nor any enquiry was conducted and the order of termination has been passed which bears civil consequences as the petitioner has been removed from services, he was required to be heard while following the celebrated principles of natural justice audi alteram partem which has not been done in the instant case. As such, the impugned order is liable to be quashed. 4. On the other hand, learned counsel for the respondent/State submits that every opportunity has been accorded to the petitioner and he has availed the same at first notice was issued and after being dissatisfied with the reply filed by the petitioner impugned order has been passed which cannot be termed to be illegal. So far as pendency of the writ petition is concerned, it has been argued by the State counsel that pendency of the writ petition would not preclude the respondents from initiating any further proceeding in respect of the departmental enquiry and preclude the respondents from passing any adverse order against the petitioner. The order has rightly been passed by the authorities which does not call for any interference by this Court. 5 5. I have heard learned counsel for the petitioner as well as learned counsel for the respondents. I have also considered the rival submissions made by the parties and perused the record. From perusal of the impugned order, it is apparent that the petitioner has been removed while taking recourse of clause 34.7 and clause 40 of ‘the Policy of 2018’. In order to decide this case, it would be profitable to reproduce clause 34.7 and clause 40 of the Policy of 2018 which is as under: “34.अनुबंध अनुसार सेवा समा቎ኌ :-- 34.7. ቎ኌसी भी सं቎ኌवदा मचारी ्ቛारा ቎ኌबना ቎ኌसी सूचना े अथवा अनुमति ቎ኌबना स्वीृ ्ቚा ቎ኌये अनुपቝኌस्थ रहन पर 30 ቎ኌदवस या अतिध पूरे ቎ኌव्ቈीय व्ቧ मैं अनातिधृ अनुपቝኌस्थति होने ी दशा में सेवा से पृथ ቎ኌया जावेगा। 40.जेण्डर संवेदनशीला 40.1 ाई भी स቎ኌवदा मचारी ायस्थल पर ቎ኌसी सहम0 े साथ यौन उत्पीडन सलिल पाया जाा है ो उसी सेवा समा ी जावेगी एवं उसे ቎ኌवरू्ቍ ्ቚावधानानुसार ቎ኌवतिध शिशाय दज रायी जावेगी। 40.2 ्ቚत्य मचारी जा ቎ኌसी ायस्थल ा ्ቚभारी हो उस ायस्थल पर संवेदनाशील व्यवहार े लिलये अनुू ल वाावरण ቎ኌन቞ኌम रेंगे। 40.3 म቎ኌहला यौन उत्पीडन शिशायों ी जांच रने े लिलये म቎ኌहला अतिधारी ी अध्य्ቌा में शिशाय स቎ኌमति ा गठन ቎ኌया जायेगा, जिजसमें 50 ्ቚतिश सदस्य म቎ኌहला अतिधारी होंगे था उ्ሹ स቎ኌमति में गैर शासीय सस्था ा भी ्ቚति቎ኌनतिधत्व न्यूनम 1 सदस्य/सदस्या े रूप में होगा। 40.4 ग቎ኌठ स቎ኌमति ्ቛारा शिशाय ी जाच र ायालय ्ቚमुख ा ायवाही रने हेु अनुशसा ी जायगी। 40.5 अनुशंसा में दो्ቧ जिस्ቍ होने पर अनुशासनात्म ायवाही हेु जिजला 'राज्य स्वास्थ्य स቎ኌमति े पास अतिधार ቎ኌन቎ኌह होंगे। 40.6 अनुशासनात्म ቎ኌनय्ቔण ्ቚणाली :- अनुशासन/आचरण शिशायी 6 जाच े परिरणामस्वरूप स቎ኌवदा सेवा से पृथ ቎ኌये गये स቎ኌवदा मचारी ी भ቎ኌवष्य मे रा्ቖ्रीय स्वास्थ्य ቎ኌमशन छग े ቎ኌसी भी स቎ኌवदा पद े लिलए उम्मीदवारी पर ቎ኌवचार नहीं ቎ኌया जायेगा।" 6. From perusal of these clause, it is apparent that on the basis of allegation leveled by the complainant for the offence punishable under Section 354 and 509 of IPC, the order of removal has been passed taking recourse of aforesaid clause. While considering the aforesaid clause, when the FIR dated 31/08/2022 was taken into consideration, it was found that the basis of removal taking recourse of clause 40 is not applicable as per FIR because according to the allegation, the offence has been committed in the residence of the petitioner and not in the work place, as such clause 40 of ‘the Policy of 2018’ will not be attracted in this case. Secondly, so far as unauthorized absence from duty without leave is concerned, as per clause 34.7 is concerned, this clause would also not be applicable as unauthorized absence has not been proved while holding any enquiry etc. While considering ‘the Policy of 2018’ according to clause 34.3 in which it has been specifically mentioned that in case of any allegation of unfair means or any criminal act or indulgence in any financial irregularities, the appointing authority will terminate the services of the employee after giving him due opportunity of hearing, however in the present case, nothing is elucidated that any opportunity of hearing was accorded to the petitioner and he has been terminated on the basis of due enquiry. So far as clause 40 is concerned for that also a proper enquiry in respect of complaint of sexual harassment is required to be conducted in the Chairmanship of one of the Women Officer and the Committee 7 would be constituted in which 50% members would be constituted from the Women Officers alongwith one non-government member. The Committee so constituted will recommend and thereafter only on the basis of proving of guilt the departmental enquiry would be conducted by the District/State Health Committee. From the aforesaid clause of the Policy of 2018 it is apparent on the face of the record that no such enquiry has been conducted as envisaged under the relevant Policy of 2018 and without there being any enquiry, order of termination/removal has been passed. In the present matter, the guidelines of the Hon’ble Supreme Court in the matter of Vishakha (supra) has not been followed. It is well settled principles of law that when the authority has been vested with power to exercise its jurisdiction then he alone can pass the order as per guidance or directions under the Statute and he has to do the same in a particular manner which is prescribed in the said Statute. One cannot deviate from the prescribed Rules of the Statute. Everything has to be done following the prescribed Rules of the Statute. In the case reported in (2011) 5 SCC 435 the Supreme Court has come with categorical terms that the procedure has to be followed as per Statute or Act and it cannot be allowed to be deviated from the Acts and Rules. When some specific directions have been issued under the Law it has to be followed as per the Rules strictly in accordance with law. Now coming to the present case, from the perusal of the entire Policy of 2018 as well as from the perusal of the impugned order as also from the documents appended with the petition, it is quite vivid that none of the procedure have been followed before termination of the petitioner from service and without proving the guilt, the petitioner has been removed from services in an illegal and arbitrary 8 manner. The petitioner was also not granted any opportunity of hearing. Accordingly, I am having no hesitation while holding that the procedure adopted by the respondent/authorities is in violation of ‘Policy of 2018’ as well as against the principles of natural justice and as such the order impugned by which the petitioner has been terminated suffers with jurisdiction and competency as well as against the procedure prescribed under the Policy and the principles of audi alteram partem. As such, the impugned order dated 26/10/2022 is liable to be quashed and it is accordingly quashed. The petition filed by the petitioner is hereby allowed. 7. No order as to costs. Sd/- (Amitendra Kishore Prasad) Judge gouri