1 2025:CGHC:58467 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8004 of 2023 1 - Santosh Kumar Chauhan Son Of Mehattar Lal Chauhan, Aged About 35 Years Resident Of Chainpur, Tahsil - Kartala, District - Korba, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Panchayat And Rural Development Department, Mahanadi Bhawan, Mantralaya, New Raipur, Chhattisgarh. 2 - The Collector, Korba, District - Korba, Chhattisgarh. 3 - The Chief Executive Officer, Zila Panchayat, Korba, District - Korba, Chhattisgarh. 4 - The Chief Executive Officer, Janpad Panchayat, Kartala, District - Korba, Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Krishna Kumar Dewangan, Advocate. For State : Mr. Sakib Ahmed, Panel Lawyer. (Hon'ble Shri Amitendra Kishore Prasad, Judge) Order on Board 2.12.2025 RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2 1. The core issue in the present writ petition revolves around the termination of the petitioner, who was working Employment Assistant. The petitioner has been removed from the said post without giving any opportunity of hearing and without giving any show cause notice. Aggrieved by the aforesaid, the petitioner has approached this Court by way of the present writ petition, seeking the following reliefs: “10.1 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ, thereby set-aside the impugned orders dated 04.02.2022 and 07.02.2022 and further be pleased to direct the respondent authorities to reinstate the petitioner on the post of Employment Assistant with all consequential benefits. 10.2 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.” 2. Facts of the case, in a nutshell, are that the present writ petition has been filed assailing the impugned orders dated 04.02.2022 and 07.02.2022 (Annexure P/1) passed by respondents No. 3 and 4 respectively, and duly approved by respondent No. 2, whereby the petitioner has been removed from the post of Employment Assistant without affording any opportunity of hearing or conducting a regular enquiry, in gross violation of the principles of natural justice as well as Rule 7 of the Panchayat Service (Discipline and Appeal Rules), 1999 (hereinafter referred to as “Rules, 1999”). The petitioner was appointed on 28.5.2007 as Employment Assistant on a contractual basis and had been 3 discharging his duties continuously, efficiently, and without any complaint or adverse remark to the satisfaction of his superior authorities. It is stated that in September 2021, the petitioner fell ill and consequently remained absent from duty, having duly informed his superior officers about his illness. Thereafter, on 24.12.2021, respondent No. 3 issued a show-cause notice requiring the petitioner to explain his absence. In compliance, the petitioner submitted his explanation on 31.12.2021, enclosing therewith a medical certificate issued by a competent Medical Officer substantiating his illness and treatment. However, despite submission of a satisfactory explanation and supporting medical evidence, the respondents, without considering the same, without affording any reasonable opportunity of hearing, and without issuing any notice of termination, arbitrarily passed the impugned orders dated 04.02.2022 and 07.02.2022, thereby removing the petitioner from service in utter disregard of the mandatory procedure prescribed under Rule 7 of the Rules, 1999 as well as the settled principles of natural justice. Hence, the present petition. 3. The petitioner submits that the impugned orders dated 04.02.2022 and 07.02.2022 are wholly arbitrary and discriminatory, thereby violating the guarantees of equality, fairness, and protection of life and personal liberty enshrined under Articles 14, 16, and 21 of the Constitution of India. The said orders have been passed by respondents No. 3 and 4 without serving any prior notice of 4 removal or termination, in blatant disregard of the principles of natural justice, rendering the orders legally unsustainable. The petitioner had been continuously discharging her duties to the satisfaction of her superiors and was regularly receiving her salary. In September 2021, during the COVID-19 pandemic, the petitioner was unable to attend work for a few days due to ill health, for which he had duly informed his superiors and submitted medical evidence. The punishment of removal from service constitutes a major penalty, which cannot be imposed routinely or arbitrarily without conducting a proper departmental enquiry, as mandated under Rule 7 of the Panchayat Service (Discipline and Appeal) Rules, 1999. Admittedly, no such enquiry was conducted in the petitioner’s case, and the order of removal was passed directly, in violation of the mandatory procedure. The petitioner relies upon the decision of the Hon’ble Division Bench of this Court in Rooplal Nayak vs. State of Chhattisgarh and others , 2006 (4) M.P.N.T. 99 (C.G.) , wherein it was held that a major penalty under Rule 5(b)(iv) of the Rules, 1999 cannot be imposed without following the procedure prescribed under Rule 7. Additionally, in Writ Petition (S) No. 5653/2017 ( Smt. Kavita Kashyap vs. State of Chhattisgarh & others ) , the Hon’ble Court allowed the writ petition at the admission stage, further reinforcing the petitioner’s entitlement to protection against arbitrary removal. The petitioner reserves the right to raise any further grounds at the time of hearing. 5 4. On the other hand, learned State counsel oppose the submission made by learned counsel for petitioner and submit that the petitioner was appointed on the post of Employment Assistant on under Respondent authority. It is further respectfully submits that the present writ petition, as preferred by the petitioner, is not maintainable as against the respondents, inasmuch as no specific relief has been sought nor any direct or adverse allegation has been made against them in the entire body of the petition. The petitioner has neither attributed any act of omission or commission to the answering respondents nor demonstrated any role played by them in the issuance of the impugned orders dated 04.02.2022 and 07.02.2022. In the absence of any specific pleading or prayer seeking relief against the respondents, no cause of action arises against them, and hence, the writ petition is liable to be dismissed qua the respondents at the very threshold. It is further submitted that the impugned action, if any, has been taken by the concerned authorities in accordance with law and within the scope of their administrative jurisdiction, and the respondents have no direct involvement in the matter. Therefore, the petition is liable to be dismissed. 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 6 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:- “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 7 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 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 8 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 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 9 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 10 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 Employment Assistant was carried out without following due process of law. Neither any show-cause notice was issued in favour of the petitioner nor any opportunity of hearing was granted to the petitioner. 9. This Court further observes that the petitioner was not alleged to have personally misappropriated. 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. Accordingly, the impugned orders are 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. No opinion is expressed on the merits of the allegations. 10. The writ petition stands allowed. SD/- (Amitendra Kishore Prasad) Judge Raghu Jat