1 2025:CGHC:55942 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1914 of 2023 1 - Gajendra Kumar Verma S/o Bramha Verma Aged About 37 Years R/o Shyam Nagar Chachoud, Dhuma, Tahsil Fingeshwar, District Gariyaband Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Principal Secretary, Department Of Education, Mantralaya, Mahanadi Bhawan, Atal Nagar Nawa Raipur, District Raipur Chhattisgarh. 2 - Director Directorate Of Public Education, Indrawanti Bhawan, Atal Nagar Nawa Raipur, District Raipur Chhattisgarh. 3 - District Education Officer Gariyaband, District Gariyaband Chhattisgarh. 4 - Block Education Officer Fingeshwar, District Gariyaband Chhattisgarh. 5 - Principal Government Higher Secondary School Dhuma, District Gariyaband Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Shikhar Sharma, Advocate. For Respondent/State : Mr. Rahul Tamaskar, G.A. (Hon'ble Shri Amitendra Kishore Prasad, Judge) Order on Board 17.11.2025 1. By way of this petition, the petitioner has prayed for following RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2 reliefs:- “10.1 That, this Hon'ble Court may kindly be pleased to set-aside/quash the impugned letter of removal/ separation dated 14-12-2022 (Annexure P-1) and impugned advertisement (Annexure P-2). 10.2 That, this Hon'ble Court may kindly be pleased to direct the respondent authorities particularly the respondent No.5 to let the petitioner work in his place of posting. 10.3 That, the Hon'ble Court may kindly be pleased to grant any other relief, as it may deem-fit and appropriate.” 2. Brief facts of the case is that, respondent No.1 issued a letter dated 08-03-2011 to respondent No.2 directing the appointment of Part-Time Sweepers in various schools of the Education Department and instructing that such appointments be made by the respective Principals or Head Masters. Pursuant to the said direction, respondent No.5 appointed the petitioner to the post of Part-Time Sweeper vide order dated 19-04-2011 and, through a letter of the same date, informed respondent No.4 of such appointment, since then, the petitioner has been discharging his duties honestly and diligently without any blemish, and has been receiving salary from the State authorities through the Treasury Department of Chhattisgarh. In the year 2022, an incident of theft occurred in the school premises and the petitioner was wrongly implicated, resulting in registration of an FIR, for which he has obtained bail and the criminal trial is presently pending. Thereafter, on 14-12-2022, respondent No.5 issued a letter 3 unlawfully removing the petitioner from service on the ground of the pending accusation, without affording any opportunity of hearing, despite the petitioner having rendered continuous service for 11 years, and merely on the basis of registration of an FIR. Subsequently, respondent No.5 issued an impugned advertisement inviting applications from 10-01-2023 to 18-01- 2023 for the post of Part-Time Sweeper in Government Higher Secondary School, Dhuma, even though the petitioner had been serving in the said post for 11 years and no conviction or adverse finding has been recorded against him, rendering the action arbitrary and illegal. Being aggrieved, the petitioner issued a legal notice dated 20-01-2023 to respondent No.5 submitting that his removal was without any lawful basis, made merely on suspicion, in violation of principles of natural justice, and requesting that no fresh appointment be made in his place while the trial is pending. Hence, this petition is being filed. 3. Learned counsel for petitioner submits that the impugned termination order is arbitrary, unjust, and has been passed in gross violation of the principles of natural justice. He further submits that the impugned action of respondent No.5 in separating the petitioner from government service is wholly arbitrary, illegal and violative of the principles of natural justice, as no order of conviction has been passed against the petitioner and he has merely been implicated in a criminal case on the basis of suspicion, therefore, no adverse action could have been taken 4 against him till the conclusion of the criminal trial. He further submits that the petitioner was appointed as a Part Time Sweeper pursuant to the communication dated 08-03-2011 issued by respondent No.1 to respondent No.2, followed by the appointment order dated 19-04-2011 issued by respondent No.5, and ever since then the petitioner has been discharging his duties sincerely for the last eleven years and drawing his salary from the Treasury Department of the State. He further submits that in 2022, an incident of theft was alleged in the school premises for which the petitioner was wrongly implicated and an FIR was registered, though he has already been granted bail and the trial is still pending. Despite this, respondent No.5, without conducting any proper enquiry or affording any opportunity of hearing, issued a letter dated 14-12-2022 separating the petitioner from service merely on account of the pendency of the criminal case. It is contended that the subsequent advertisement issued for fresh appointment to the same post between 10-01-2023 and 18-01- 2023, while the petitioner’s trial is still pending and without any order of conviction, is unjustified and illegal. Counsel submits that the petitioner also issued a legal notice dated 20-01-2023 pointing out these illegalities and emphasizing that he has served the department for more than eleven years without blemish and that no adverse action should be taken until the accusations are proved, yet no relief has been granted. The petitioner, therefore, reserves his right to raise additional grounds and file relevant 5 documents at the time of final hearing. 4. On the other hand, learned State counsel oppose the submission made by learned counsel for petitioner and submit that the petitioner, while serving as a Part-Time Sweeper under respondent No.5 at Government Higher Secondary School, Dhuma, District Gariyaband (CG), committed theft of electrical and electronic articles from the school premises between 14.09.2022 and 15.09.2022, for which a named FIR was registered on 29.11.2022 at Police Station Rajim for the offence punishable under Section 379 IPC, and during investigation the stolen articles were recovered from his possession, leading to the filing of a charge-sheet before the competent court, that owing to the commission of the said offence, the petitioner was rightly removed from service by respondent No.5 vide the impugned order, and another person, namely Lomash Kumar Verma, has been validly engaged on the post of Part-Time Sweeper since 25.01.2023 and has been discharging duties since then; that in view of these facts, the present petition is wholly untenable as the petitioner, having been found involved in theft and recovery having been made from him, cannot claim any right to continue in service, and the impugned order suffers from no illegality or infirmity and that without prejudice, while specifically denying all allegations contrary to the above submissions. Therefore, the order impugned in passed in accordance with law and this petition is devoid of merits and is liable to be dismissed. 6 5. I have heard learned counsel for the respective parties and also perused documents annexed along with the record. 6. Considering the entire aspect of the matter and further considering the order passed by this Court in WPS No. 8212 of 2023 as also in WPS No. 8458 of 2024, in which a detail discussion was made while considering the order passed by the Hon’ble Supreme Court in case of Swati Priaydarshani v. State of Madhya Pradesh and Ors. reported in 2024 SCC Online SC 2139 decided on 22.08.2024 in which the ratio laid down by the Hon'ble Supreme Court is to the effect that even in case of contractual appointment, if any stigmatic order is to be passed, it may be passed only after holding proper enquiry and after giving due opportunity of hearing to the concerned delinquent/employee. The Co-ordinate Bench of this Court in WPS No. 4969/2015 (Digambar Chandrakar v. State of Chhattisgarh and others) decided on 22.08.2024 held 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 delinquent/ employee. 7. 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 done, which has not been done in this case. In para 34 of the said judgment, the Hon'ble Supreme Court has held as under:- 7 “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 above mentioned 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 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 8 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 other disqualification, then it is or 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 9 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 10 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." 8. Same view has been taken further considering the law laid down by the Hon’ble Supreme Court in matter of State of Haryana and other v. Piara Singh reported in (1992) 4 SCC 118, this Court is of the opinion that the termination of the petitioner from the post of Rajgar Sahayak under the MGNREGA scheme was carried out without following due process of law. Although a show cause notice was issued and a reply was submitted by the petitioner within the stipulated time, there is nothing on record to show that the explanation offered was objectively considered through a fair and transparent inquiry. No detailed speaking order has been passed, and there appears to be no independent verification of the response of petitioner, nor any material to indicate that a proper opportunity of hearing was afforded. 9. This Court further observes that the allegations on the petitioner pertains to procedural or technical lapses during project implementation, which, if established, ought to be determined through a fair inquiry. The principle of natural justice mandates that before taking any adverse action, especially termination, the affected party must be given a real and meaningful opportunity to 11 be heard. 10. The petitioner is an employee of Government Higher Secondary School, Dhuma, District-Gariyaband, C.G.:- comprising issuance of notice, submission of reply, framing of charges, and conduct of a full-fledged enquiry after affording a proper opportunity of hearing—is required to be followed. However, in the present case, the said procedure has not been adhered to. 11. Consequently, the impugned orders dated 14.12.2022 (Annexure P-1) is quashed. However, liberty is granted to the respondent authorities to initiate proceedings afresh against the petitioner, if so advised, strictly in accordance with law, and only after giving the petitioner a proper opportunity of hearing and conducting a fair inquiry. Until the enquiry is conducted in accordance with law, the petitioner shall stand reinstated as a consequence of the quashing of the impugned orders. No opinion is expressed on the merits of the allegations. 12. The writ petition stands allowed. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat