1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8458 of 2024 1 - Dr. Pravesh Kumar Shukla S/o Shri Gendlal Shukla Aged About 39 Years R/o Near Preet Ata Chakki, Shyam Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh. ... Petitioner versus 1 - State Of Chhattisgarh Through Its Secretary, Department Of Medical Education Department, Mahanadi Bhawan, Mantralay, Nava Raipur, Atal Nagar, District Raipur, Chhattisgarh. 2 - The Commissioner Medical Education, North Block, Sector- 19, Swasthya Bhawan, 2nd Floor, Nawa Raipur, Atal Nagar, Chhattisgarh 3 - The Dean Dau Kalyan Singh Post Graduate Institute And Research Center, Raipur, District Raipur, C.G. 4 - The Hospital Superintendent Cum Academic Incharge D K S, Super Speciality Hospital, Raipur, District Raipur, Chhattisgarh ... Respondents (Cause-title taken from the Case Information System) ------------------------------------------------------------------------------------------------ For Petitioner :- Mr. Sandeep Dubey, Advocate For State :- Ms. Akanksha Verma, P.L. ------------------------------------------------------------------------------------------------ VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 SB- Hon'ble Shri Justice Amitendra Kishore Prasad Order On Board 03.01.2025 1. By way of this petition, the petitioner is challenging the impugned order dated 08.08.2024 (Annexure P/1), whereby, the petitioner’s service has been terminated from the post of Assistant Professor Gastroenterology Department in Government Dau Kalyan Singh Super Speciality Hospital, Raipur, District Raipur Chhattisgarh (hereinafter called as ‘DKS Hospital’). 2. Facts of the case, in brief, are that the petitioner is Super Specialist Doctor having degree of MBBS, MS(Surgery), Dr.NB (Doctorate of National Board Surgical Gastroenterology) Super Specialist course and is a renowned Doctor on the field of Gastroenterology surgeon. The petitioner has chosen to work at Government Hospital, he is the only doctor in the Chhattisgarh who was posted at DKS Hospital. The petitioner was earlier posted at GB Pant Super Speciality Hospital, New Delhi, as a Senior Resident, thereafter he was posted as Assistant Professor at AIMS Bhopal, after working about 2 years he came back to Chhattisgarh for serving in Medical field. On 11.08.2023, the petitioner was appointed on contractual basis as a Surgeon (Gastroenterology) under the Department of Gastroenterology at DKS Hospital, and in the next date he joined and when he was working with due sincerity with DKS Hospital, he received one show cause notice on 01.07.2024, in which it was mentioned that, 3 during OPD dated 08.06.2024, one under-trial accused came from Jail for his medical treatment, in which he has referred the said patient to District Hospital, Raipur with endorsement for further treatment. The allegation against the petitioner is that, while giving treatment at OPD being surgeon Gastroenterology, he referred him to other Govt. Hospital/AIMS, because G.I. Endoscopy (Colonoscopy) instrument was not available at department on the contrary, the instrument was available on 08.06.2024 and 5 cases were examined, if the colonoscopy is not available at Department, then he could get it done from other Government Hospital, which is complete indiscipline and in violation of Chhattisgarh Civil Services (Conduct) Rules, 1965, as such, why legal action should be not taken against the petitioner and the petitioner was directed to give explanation within 2 days. The dispute relates to availability of Lower GI Endoscopy (Colonoscopy), a colonoscopy is usually performed by the Gastroenterologist (who is having super specialist degree on medicine). The petitioner is having super specialist degree of Gastroenterology Surgeon and he is not having the degree of medicine and therefore, he is not expert on the field for running the colonoscopy instrument. Thereafter, the petitioner made detailed representation before the Competent Authority to constitute the Enquiry Committee and to enquire the matter. But till date the authorities have not constituted enquiry committee nor enquired the matter. Earlier the petitioner was served notice dated 31.05.2024, which relates to late attendance 4 in punching machine, but when within time the petitioner not submitted reply, again notice dated 21.06.2024 has been issued. As per the Chhattisgarh Civil Service (Contractual Appointment) Rules, 2012, the authority competent can terminate the terms of contract simplicitor, but the respondent authorities have no authority to make any stigmatic allegation against the petitioner, which require a full fledged enquiry, but without any enquiry in an arbitrary and malafide manner the impugned order dated 08.08.2024 (Annexure P/1) has been passed, which is complete violation of principle of natural justice. 3. Learned counsel for the petitioner submits that without there being any opportunity of hearing or any departmental enquiry, the services of the petitioner has been removed by the impugned order dated 08.08.2024 (Annexure P/1) while holding that the act committed by the petitioner is indiscipline which is in violation of Chhattisgarh Civil Services (Conduct) Rules 1965, as such, he has been removed from his services. He submits that while passing the aforesaid stigmatic order, neither any opportunity of hearing was afforded to the petitioner nor any departmental enquiry was initiated against him and he has been removed from services in contravention of principles of natural justice, as such, the petition is liable to be allowed. He places reliance upon a judgment of the Hon’ble Supreme Court in the matter of Swati Priyadarshini vs. State of Madhya Pradesh and Others reported in 2024 SCC OnLine SC 2139 decided on 22/08/2024 in 5 which the ratio laid down by the Hon’ble Supreme Court is to the fact that even if in contractual appointment, if any stigmatic order is to be passed, it is to be passed after holding proper enquiry and after giving due opportunity of hearing to the concerned delinquent/employee. He has also placed reliance upon an order passed by Co-ordinate Bench of this Court in WPS No. 4969/2015 in the matter of Digambar Chandrakar vs. State of Chhattisgarh and others, in the said case also, this Court is of the view that in order to pass a stigmatic or cumulative order, the concerned authorities are required to hold a departmental enquiry after giving due opportunity of hearing to the delinquent/ employee. 4. On the other hand, learned State counsel submits that since the appointment is of contractual nature and the impugned order does not goes to show that it is a stigmatic order, as such, the order impugned has rightly been passed and nothing requires to be interfered with. 5. I have heard learned counsel for the parties and perused the material available on record. After perusal of the record, I am of the opinion that from the perusal of the impugned order dated 08.08.2024 (Annexure P/1), it seems that it is a stigmatic order in which there is specific mention of the violation of Chhattisgarh Civil Services (Conduct) Rules 1965, as such, the employee is required to be heard after putting him into the departmental enquiry, which has not been done in the present case. The view 6 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 done, and the person concerned is required to be heard before passing such stigmatic order, which has not been done in this case. The Co-ordinate Bench of this Court is also of the same view which is reflected from the order dated 22.08.2024 passed in WPS No. 4964/2015. 6. In para 34 of the said judgment, 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 7 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 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 8 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 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. As such, taking into note of the aforesaid orders, I am of the view 9 that the respondent authorities have committed illegality while not holding any departmental enquiry and not giving proper opportunity of hearing before passing stigmatic impugned order. Accordingly, the impugned order dated 08.08.2024 (Annexure P/1) is liable to be quashed and is hereby quashed. However, the respondent authorities are at liberty to initiate any proceeding, in accordance with law. 8. With the aforesaid observation, the writ petition stands allowed. Sd/- (Amitendra Kishore Prasad) Judge Vishakha