Chattisgarh High Court
Raj Kumar Yadav vs State Of Chhattisgarh on 23 August, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 4751 of 2018
Raj Kumar Yadav, S/o Shri Om Prakash Yadav, aged about 26 years,
R/o Adhari Nawagaon Ward, Dhamtari, Tahsil & District Dhamtari
(CG)
---- Petitioner
Versus
1. State of Chhattisgarh, through the Secretary, Urban Administration
and Development Department, Mantralaya, Mahanadi Bhawan,
Naya Raipur, District Raipur (CG)
2. The Commissioner, Raipur Division, Raipur, District Raipur (CG)
3. The Commissioner, Municipal Corporation, Dhamtari, District
Dhamtari (CG)
---- Respondents
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For Petitioner : Mr. P.R. Patankar, Advocate. For Respondents/State : Mr. Saumya Rai, Panel Lawyer For Respondent No.3 : Dr. Sudeep Agrawal, Advocate.
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Hon'ble Smt. Rajani Dubey, Judge Order on Board 23.08.2023 By way of present writ petition, the petitioner has prayed for following relief(s):
"10.1 That this Hon'ble Court may kindly be pleased to call for the entire record from the respondent authorities relating to removal of the petitioner passed by the Commissioner, Municipal Corporation, Dhamtari and the dismissal of the appeal passed by the Commissioner, Raipur Division, Raipur.
10.2 That, this Hon'ble Court may kindly be pleased to set aside/quash the impugned order dated 22.05.2018 (Annexure P-10) along with order dated 18.02.2015 (Annexure P-2) and 2 further direct the respondent authorities to reinstate the petitioner with all consequential benefits.
10.3Cost of the petition may also be granted to the petitioner.
10.4Any other relief, which this Hon'ble Court deems fit and proper, may also kindly be granted to the petitioner, in the facts and circumstances of the present case, in the interest of justice."
02. Brief facts of the case are that the petitioner who was working as a peon and was a permanent employee in Municipal Corporation, Raipur was removed from service by the Municipal Corporation, Raipur vide order dated 18.2.2015 on the ground of his unauthorized absence from duties without prior permission. Though the petitioner submitted representations on 1.4.2015 and 17.8.2015 stating that due to ill health of his father he could not submit leave application and it being the first mistake the same may be condoned, but the said representations were not considered by the respondent authorities. Thereafter, the petitioner preferred an appeal under Section 403 of the Municipal Corporation Act with an application for condonation of delay in filing appeal, however, the said application was rejected and consequently, the appeal stood dismissed as time barred vide order dated 19.12.2016 (Annexure P/7). Against the said order, the petitioner preferred an appeal before the State Government which was also dismissed vide order dated 8.2.2017 on the ground that there is no provision of second appeal in the rules.
03. Being aggrieved by the dismissal of the appeal by the Commissioner, Raipur on the ground of delay, the petitioner preferred a 3 writ petition i.e. WPS No.1410/2017 which was allowed vide order dated 23.3.2017 (Annexure P/8) and the order dated 19.12.2016 was set aside. Accordingly, this Court directed the appellate authority to entertain the appeal and decide the same on its own merits. However, vide order dated 22.5.2018 (Annexure P/10) the Commissioner, Raipur dismissed the appeal of the petitioner affirming the order passed by the Commissioner, Municipal Corporation, Dhamtari. Hence this petition.
04. Learned counsel for the petitioner submits that the petitioner being a regular employee in the Municipal Corporation, Dhamtari could not have been removed from service by the Commissioner, Municipal Corporation without conducting a departmental enquiry and without affording him proper opportunity of hearing. As per circular of the State Government dated 10.02.2015 issued by the General Administration Department relating to illegal absentism of the government employees, instructions are issued that before imposing major penalty, departmental enquiry should be conducted and completed within six months. However, in the present case, no departmental enquiry has been conducted before removal of the petitioner from service. The Commissioner, Raipur Division ought to have also considered the fact that the alleged misconduct of the petitioner was not of such a grave nature so as to impose major penalty of removal from service as the petitioner has lost his mother and is the only breadwinner of the family and taking care of his ailing father. He submits that removal of the petitioner from service is de horse the principle of natural justice and the service jurisprudence. 4 Therefore, the impugned orders dated 22.5.2018 and 18.2.2015 are liable to be set aside and the respondent authorities be directed to reinstate the petitioner with all consequential benefits.
Reliance has been placed on the decisions in the matters of Narendra Singh Vs. Govt. of MP and another, 2006 MPLSR 220, the order of this Court in the matter of Prashant Shukla Vs. State of CG reported in Laws (Chh) 2017 2 56 and in the matter of Sewak Ram Purena Vs. State of CG and another, 2022(2) CGLJ 378.
05. On the other hand, learned counsel appearing for the respondents have supported the impugned orders. Though they do not dispute that no departmental enquiry was conducted against the petitioner before his removal from service, however, it is strongly contended that before passing the impugned order, notices were issued to the petitioner, which were not replied to by him.
06. Heard learned counsel for the parties and perused the material available on record.
07. This Court in the matter of Prashant Shukla (supra) held in para 12 as under:
"12. There is one more ground for not upholding the impugned order. The petitioner was appointed by order dated 21.1.1995 and he was regularized on the said post and was promoted on the post of Teacher also. The petitioner's services have been terminated without making any departmental enquiry, whereas the petitioner has been regularized and holding regular post and his services could not have been terminated without holding 5 regular departmental enquiry. The Supreme Court in the matter of Avtar Singh Vs. Union of India and others, 2016 AIR (SC) 3598 has held that departmental enquiry is necessary before passing the order of termination/removal against confirmed employee on the ground of suppression of information or submitting false information."
08. In the matter of Sewak Ram Purena (supra), while dealing with the identical issue, this Court held in para 16 as under:
"The petitioner was confirmed employee as he has been confirmed by order dated 21.4.2010 after completion of period of probation. As already held in foregoing paragraphs that order dated 4.6.2011 is without jurisdiction and without authority of law, the petitioner being confirmed employee on the date of termination dated 15.12.2011, his services could not have been terminated without holding regular departmental enquiry in accordance with Rule 14(1) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter called as 'Rules of 1966') as termination from service is major penalty within the meaning of Rule 10(viii) of the Rules of 1966 and as such, merely giving one month's salary in lieu of notice, the petitioner's services could not have been terminated."
09. In the present case also, it is not in dispute that the petitioner is a permanent employee and he was removed from service on the charges of being unauthorizedly absent from his duties and further, it is also an admitted position that no departmental enquiry was initiated against him before his removal from service.
10. Thus, considering the facts and circumstances of the case, the manner in which the petitioner was removed from service, in view of the 6 settled legal position as mentioned above, the orders impugned dated 18.2.2015 (Annexure P/2) and 22.5.2018 (Annexure P/10) being not sustainable in law are hereby set aside and the petitioner is held entitled for 50% back-wages from the date of his removal till the date of his reinstatement. This apart, the petitioner will be entitled for other service benefits as per law. However, the respondent authorities are at liberty to initiate departmental enquiry against the petitioner in respect of the aforesaid charge in accordance with law, if so desire. The writ petition thus stands allowed to the above extent.
Sd/ (Rajani Dubey) Judge Khan