1 2025:CGHC:8029 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1209 of 2025 Sachin Kumar Masih @ Sachin Masih S/o Shri Sanat Kumar Masih Aged About 43 Years R/o Mission Hospital Compound Takhatpur, P.S. And Tah. Takhatpur, District Bilaspur, Chhattisgarh. ... Petitioner versus 1 - State Of Chhattisgarh Through Secretary, Health Services Department, Mantralay, Mahanadi Bhavan, New Raipur, Police Station Rakhi, District Raipur, Chhattisgarh. 2 - Director Health Services Department, Mahanadi Bhavan, New Raipur, Police Station Rakhi, District Raipur, Chhattisgarh. 3 - Collector District South Bastar, Dantewada, Chhattisgarh. 4 - Project Director Chhattisgarh State A.I.D.S. Control Organization, Mantralay Naya Raipur, District Raipur, Chhattisgarh. 5 - Chief Medical Health Officer District South Bastar, Dantewada, Chhattisgarh. ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Raj Kumar Gupta, Advocate For State/Respondents : Ms. Nupur Trivedi, P.L. Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 14.02.2025 1. Heard Mr. Raj Kumar Gupta, learned counsel for the petitioner and Ms. Nupur Trivedi, learned Panel Lawyer, appearing for the State/respondents. YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.02.19 12:24:06 +0530 2 2. By way of this writ petition, the petitioner is challenging the legality, validity and proprietary of the impugned order dated 08.11.2024 passed by the respondent No.5 whereby his services has been terminated without considering completion of 19 years of his service and without giving opportunity of hearing to the petitioner. 3. By filing this writ petition, the petitioner has prayed for following relief(s):- “i. That, this Hon’ble Court may kindly be pleased to set aside the impugned order dated 08/11/24 Annexure P/1. ii. That, this Hon’ble Court may kindly be pleased to direct the respondent authority to continue the services/reinstate the petitioner with all consequential benefits with back wages. iii. Any other relief as deemed fit by this Hon’ble Court.” 4. The facts of the case are in nutshell is that, the petitioner was working as Lab Technician at District Hospital Dantewada in VCTC programme. He was appointed in contractual basis on 23.06.2005 as Lab Technician and his consolidated pay was fixed of Rs.6500/- per month under the AIDS Control Committee, which was conducted and owned by the Directorate of Health Services. The petitioner's name was mentioned as Sachindra Kumar Masih by typographical mistake. The petitioner had worked from 2005 to 2024 without any fault and unbreakable service and his services 3 were renewed after every one year. As per the service condition of the petitioner, his services would be for one year and six months are for probation and if his work would be satisfactory then he would be continued in his service. The petitioner's service were continued from 2005 to 2024 more than 19 years. Since then, he has discharged his duties with sincerity and without any stigma or complaint. 5. Thereafter, one unknown person has filed a complaint before the SDM District South Bastar Dantewada that Hamar Lab was giving negative test report of the HIV patients who are HIV positive & V.D.R.L. Positive as also taking ART link medicines. The SDM has sent a letter to Civil Surgeon on 08.10.2024 regarding the test report of the HIV patients. Then Civil Surgeon-cum-Hospital Superintendent has formed inquiry committee of the officers and employee and instructed that they would inquire about the facts and submit their report. On 04.11.2024, the inquiry officer has sent a notice to the all employee who are working at Hamar Lab to appear before the inquiry committee. The committee has inquire about the facts and submitted its report on 05.11.2024. On 05.11.2024, respondent No.5 C.M.H.O. has issued a joint show cause notice to the petitioner along with one another Lab Technician Smt. Rashmi Shardul who is the senior to the petitioner and regular employee. After receiving of the show cause notice, the petitioner has requested to provide the documents pertaining to the complaint filed by unknown person and other related 4 documents of inquiry and report, but not a single document was provided by the department. Thereafter, he has submitted his reply on 06.11.2024 and again one another copy of show cause notice was sent through the Civil Surgeon and the petitioner had submitted his reply on 11.11.2024. The petitioner has stated entire things how he worked and how the report has been reflected as negative. It is clearly stated by him that even though he was Lab technician, but at the time of incident, he was deputed to work as blood sample collector because his senior Lab technician was working on same place, and after collection of blood samples that has been sent to the Hamar lab for test. After the test from Hamar Lab, the report has been mentioned in OPD register and the register has to be sent at sample collection center and the sample collector after going through the report in OPD register, he mentioned the same report in the patient's report. 6. On 11.09.2024, the petitioner wrote HIV test report negative in the report of the patient, which is after going through the report mentioned as per the OPD register, which has been prepared by other employee, which clearly shows that the petitioner has only copied the report which is already mentioned by the other employee in OPD register. The department has not provided any document pertaining to the complaint, inquiry and inquiry report, no opportunity of hearing has been granted to the petitioner, no one month prior notice of removal or one month pay has been given to the petitioner, without departmental inquiry stigmatic order 5 has been passed and all of sudden on 08.11.2024, he has been removed from his post of Lab Technician. Hence, the present petition. 7. Learned counsel for the petitioner submits that vide impugned order dated 08.11.2024, the petitioner has been removed from contractual service on the post of Lab Technician, which is against the Chhattisgarh Civil Services Contract Appointment Rules, 2012. He further submits that since the order is stigmatic one as such an enquiry along with proper opportunity of hearing is required to be given however, the same was not done and without following the same and without mentioning any reason he has been removed from services, which is perse illegal and arbitrary as such the petition is required to be allowed. 8. On the other hand learned counsel for the State/respondents supported the impugned order, however, upon query being made by learned counsel for the State/respondents, he has clearly submitted that this petition covers with the order dated 24.10.2024 passed in WPS No. 6633 of 2006. 9. I have heard learned counsel for the parties and perused the material available on record. 10. 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 6 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. 11. 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 7 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 rules then, prima facie, the termination is not a punishment and carries 8 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 9 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. 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 10 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." 12. Considering the overall facts and circumstances of the case as well as after hearing learned counsel for the parties as also considering the facts of the case in the light of above quoted judgments, I am of the view that the impugned order dated 08.11.2024 has been passed in a very hurry and haste manner without granting opportunity of hearing to the petitioner. If any stigmatic order is to be passed then the foremost thing which has to be done by the employer is to gave a notice levelling specific allegation against the petitioner and by holding an enquiry after giving due opportunity of hearing to the petitioner. The order, if any, can be passed, it may be passed, after holding enquiry and by giving due opportunity of hearing to the employee/delinquent which is lacking in this case. 11 13. 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 order impugned suffers with adherence of proper enquiry and a proper opportunity of hearing which has not been given in accordance with law, that too by replacing one contractual employee by an another contractual employee as such prima facie the impugned order suffers with violation of Articles 14, 16 and 19 of Constitution of India. Accordingly, the State/respondents cannot be allowed to substitute one contractual appointment by another contractual appointment and further while passing stigmatic order, opportunity has not been granted, as such the impugned order dated 08.11.2024 is liable to be and is hereby quahsed. The State/respondents are directed to reinstate the petitioner in accordance with law. 14. With the aforesaid observation(s)/direction(s) instant writ petition is Allowed. Sd/- (Amitendra Kishore Prasad) Judge Yogesh