1 2025:CGHC:55948 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8787 of 2023 1 - Kamlesh Kumar Nirmalkar S/o Shri Sukhdev Ram Nirmalkar Aged About 38 Years R/o Amatalab Road, Dhamtari, P.S. City Kotwali, Dhamtari, District : Dhamtari, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Health And Family Welfare, Mantralaya, Mahanadi Bhawan, Naya Raipur, Raipur (C.G.) 2 - Collector District Dhamtari (C.G.) 3 - Chief Medical And Health Officer Dhamtari, District : Dhamtari, Chhattisgarh 4 - National Health Mission, Chhattisgarh Through The Director, 3rd Floor, Chhattisgarh Housing Board Commercial Premises (South East Corner), Sector -27, Naya Raipur, Raipur Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Raj Shengale, Advocate For State For Respondent : : Mr. Dashrath Prajapati, Panel Lawyer Mr. C. J. K. Rao, Advocate (Hon'ble Shri Amitendra Kishore Prasad, Judge) Order on Board 17.11.2025 ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA 2 1. The core issue in the present writ petition revolves around the termination of the petitioner. The petitioner was appointed to the post of District Counsellor (ICTC) on yearly contract basis under the scheme of NUHM. No show cause notice was ever issued against the petitioner regarding alleged irregularities, the petitioner was terminated by order dated 25.09.2023 (Annexure P/1) read with order dated 13.12.2021 (Annexure P/2). Aggrieved by the aforesaid, the petitioner has approached this Court by way of the present writ petition, seeking the following reliefs: “10.1. Issue an appropriate writ in the nature of mandamus and quash the orders dated 25.09.2023 (Annexure P/1) read with 13.12.2021 (Annexure P/2), whereby the representation made by the petitioner has been rejected resulting into affirmation of the termination of service of the petitioner in a most arbitrary and illegal manner. 10.2 Issue an appropriate writ in the nature of mandamus and direct the respondents to reinstate the petitioner on the post of Data Entry Operator with immediate effect with all consequential benefits of arrears of pay with appropriate interest as deemed fit by this Hon'ble Court. 10.3 Grant any other relief, which is deemed fit in the circumstances of the case.” 2. Facts of the case, in a nutshell, are that the petitioner, after due screening, was appointed as District Counsellor (ICTC) on a yearly contractual basis vide order dated 31.12.2013 under the National Rural Health Mission (NRHM), a centrally sponsored scheme implemented through the State machinery, and his services, being consistently satisfactory, were renewed annually 3 without interruption. While discharging his duties satisfactorily, the petitioner was unfortunately implicated in a criminal case registered as Crime No. 47 at Police Station Keregaon under Sections 67 and 67-A of the Information Technology Act, 2000 and Section 509 of the Indian Penal Code, 1860, pursuant to which he was arrested on 22.11.2021, remanded to judicial custody on 23.11.2021, and subsequently released on bail on 26.11.2021. However, about a month after his release, the petitioner was abruptly terminated from service vide order dated 13.12.2021 (Annexure P/1) on the ground that the alleged offences constituted misconduct under Rule 3(1)(iii) of the Chhattisgarh Civil Services (Conduct) Rules, 1965 and Clause 34.3 of the Human Resources Policy, 2018 of the National Health Mission. The termination was effected solely on account of his arrest and the allegations made therein, treating the same as conclusively established misconduct without conducting any independent departmental enquiry, which the petitioner was entitled to even as a contractual employee, as settled in law. Thereafter, the petitioner was acquitted of all charges by a detailed judgment dated 24.02.2023, the acquittal being based not on any compromise but on the prosecution's failure to prove intentional commission of the alleged offence. Upon submitting a representation enclosing the judgment of acquittal and receiving no response, the petitioner approached this Hon’ble Court by filing WP(S) No. 4273/2023, which was disposed of on 10.07.2023 with 4 a direction to decide the representation in accordance with the governing rules and in the light of the judgment of the Hon’ble Tripura High Court in Sanchayeeta Deb v. State of Tripura, WPC No. 166/2011, decided on 14.10.2015, within 60 days. Contrary to the mandate of this Hon’ble Court, the respondents, vide impugned order dated 25.09.2023, rejected the petitioner’s representation in a wholly arbitrary and perverse manner on the erroneous premise that the petitioner had been acquitted on the basis of compromise, thereby describing the acquittal as not a “clean acquittal,” whereas a bare perusal of the judgment dated 24.02.2023 reveals that the acquittal was on merits owing to the prosecution’s failure to establish the requisite intent. Aggrieved thereby, the petitioner has approached this Hon’ble Court by filing the present writ petition. 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. The petitioner was appointed through a valid selection process after fulfilling all eligibility criteria, and had been discharging his duties with utmost integrity and diligence under the NRHM scheme. He submits that once an adjudication has attained finality and the appointment was duly made in accordance with law, the same ought to be respected and cannot be interfered with in a casual or arbitrary manner. The termination of the petitioner without proper investigation, and without giving due consideration to the reply 5 submitted by petitioner, amounts to a clear violation of due process and settled legal principles. It is further submitted that the manner in which the respondent authorities have proceeded reflects a deliberate and unjust attempt to shift the burden of systemic failure upon the petitioner. No show cause notice was issued agasint the petitioner. The learned counsel for petitioner emphasizes that no allegation of personal financial gain or corruption has been made against the petitioner. The funds under the NUHM scheme were directly transferred to the registered accounts of the labourers, and the petitioner had no role in disbursement of payments. Therefore, penalizing the petitioner without finding any personal involvement or misappropriation is manifestly unjust. The principle that “if the manner of doing an act is prescribed under a statute, it must be done in that manner or not at all” has been blatantly disregarded by the respondent authorities. Reference is made to Taylor v. Taylor (1875) 1 Ch D 426 and Nazir Ahmad v. King Emperor, AIR 1936 PC 253, which reinforce this rule. 4. Learned counsel further submits that while the petitioner was terminated summarily, no action was taken against the superior authorities under whose direct supervision the work was executed and whose sanction was necessary for disbursing payments. Instead, such authorities were let off with a mere warning, revealing the discriminatory and selective targeting of the petitioner. The entire exercise was carried out without proper 6 investigation, there was no site verification by the Sub-Divisional Officer, no recording of statements of the labourers who performed the work, and no technical assessment to verify the claims regarding work. It is further argued that the conduct of the respondent authorities reflects clear misfeasance in public office and a deliberate attempt to scapegoat a field-level functionary. The petitioner was denied fair treatment and subjected to arbitrary decision-making, in violation of Articles 14 and 16 of the Constitution of India. The Doctrine of Approbation and Reprobation is also squarely attracted in this case, as the respondents, having accepted the work and sanctioned the labour payments, now seek to turn around and punish the petitioner for the same work. A party cannot be permitted to “blow hot and cold” at the same time. Moreover, the termination of petitioner, based solely on a departmental note and without any proper verification or inquiry, amounts to colourable exercise of power. The authorities have failed to adhere to statutory requirements and have acted in a manner contrary to constitutional norms, thereby undermining public trust in the administrative system. The petitioner was not afforded a meaningful opportunity of hearing, and no speaking order was passed reflecting application of mind. In view of the above submissions, the learned counsel prays that this Court may be pleased to set aside the impugned termination order as being illegal, arbitrary, and passed without jurisdiction, and further direct the respondents to reinstate the petitioner in 7 service. 5. On the other hand, learned State counsel and learned counsel for respondents oppose the submission made by learned counsel for petitioner and jointly submit that the petitioner was appointed as a District Counsellor under NRHM Office. Further, the petitioner was negligent in discharging her duties as such the petitioner was issued a show-cause notice, after giving proper opportunity of hearing to the petitioner, upon which petitioner has already filed an reply which was not been found satisfactory then only the services of the petitioner was terminated by passing the termination order. A joint inquiry confirmed that the recorded work was grossly inflated compared to the actual work done. It is submitted that due process was followed, and the action taken is legal, justified, and in accordance with the applicable rules and scheme guidelines. Therefore, the order impugned in passed in accordance with law and this petition is devoid of merits and is liable to be dismissed. 6. I have heard learned counsel for the respective parties and also perused documents annexed along with the record. 7. 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 8 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. 8. 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:- “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 9 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 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 10 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 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. 11 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." 9. Same view has been taken further considering the law laid down by the Hon’ble Supreme Court in matter of State of Haryana and 12 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 District Counsellor (ICTC) under the NRHM scheme was carried out without following due process of law. Although no show cause notice was issued therefore no reply was submitted by the petitioner, there is nothing on record to show that the explanation 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. 10. 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 be heard. 11. The petitioner is an employee of the NRHM. Therefore, in accordance with law :- 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. 12. Consequently, the impugned orders (Annexure P/1 dated 25.09.2023 read with order dated 13.12.2021) are hereby 13 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. 13. The writ petition stands allowed. Sd/- (Amitendra Kishore Prasad) JUDGE Saxena