Chattisgarh High Court
Yogesh Chandrakar vs State Of Chhattisgarh on 24 February, 2025
1
2025:CGHC:9824
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 2679 of 2020
1 - Yogesh Chandrakar S/o Late Jeewan Lal Chandrakar, Aged About 34
Years R/o. Ward No. 8, Sarojini Chowk, P S Kurud, Kurud, District
Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh
... Petitioner
versus
1 - State Of Chhattisgarh Through The Secretary, Department Of School
Education, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nava Raipur,
Raipur Chhattisgarh, District : Raipur, (C.G.)
2 - Director, Lok Shikshan Sanchalanalaya, Atal Nagar, Nava Raipur
Chhattisgarh, District : Raipur, (C.G.)
3 - The Collector, Dhamtari, District Dhamtari Chhattisgarh, District :
Dhamtari, (C.G.)
... Respondents
(Cause title is taken from Case Information System)
For Petitioner : Mr. N. Naha Roy, Advocate
For Respondent(s) : Mr. Santosh Soni, Govt. Advocate.
Hon’ble Mr. Justice Naresh Kumar Chandravanshi
Order on Board
24/02/2025
1. With the consent of learned counsel for both the parties, the matter
is heard finally.
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2. This writ petition has been preferred under Article 226 of the
Constitution of India challenging the order dated 05.12.2018 (Annexure
P-1) passed by respondent No. 3 / Collector, Dhamtari, whereby the
petitioner was subjected to major penalty of dismissal from the post of
Assistant Teacher (LB), Govt. Primary School, Madvapathra, Block
Dhamtari, District Dhamtari (C.G.).
3. Facts of the case, in nutshell, are that the petitioner was initially
appointed with the respondents as Shiksha Karmi Grade-III vide order
dated 13.06.2005 and was posted at Naveen Primary School,
Chuchrungpur (Mandaraud) for a probation of two years, on completion of
which his service was confirmed vide order dated 25.07.2008 (Annexure
P-2). His service was absorbed with the respondent No. 1 as Assistant
Teacher (LB) under the School Education Department with effect from
01.07.2018 vide order dated 21.08.2018 (Annexure P-3). Thereafter, vide
order dated 30.07.2018, the petitioner was placed under suspension and
straightway in a disciplinary proceeding, an Enquiry Officer was appointed
without issuing charge-sheet levelling charges against the petitioner
enabling him to understand as to what are the allegations levelled against
him. The petitioner was straightaway asked to inform about personal
hearing / verbal hearing and name and address of witnesses within a
period of three days, else ex- parte enquiry will be conducted against him.
The petitioner did not appear before the Enquriy Officer, thereafter, he was
attached at the office of the District Election Officer (General Branch),
District Dhamtari (C.G.). Vide notice dated 01.11.2018, explanation was
sought from the petitioner alleging undue influence over the election
process. He filed reply to the said explanation, but without considering the
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same and without conducting departmental enquiry, vide impugned order
dated 05.12.2018 (Annexure P-1), respondent No. 3/ Collector, Dhamtari
dismissed the petitioner from his service, which has been challenged by
the petitioner in the instant petition.
4. Learned counsel appearing for the petitioner would submit that the
petitioner was a regular employee, but he has been dismissed/
terminated from his service without conducting any due departmental
enquiry, which is violative to the command of Chhattisgarh Civil Services
(Classification, Control & Appeal) Rules, 1966 (henceforth, “Rules, 1966”),
as in aforesaid Rule major punishment cannot be imposed without
conducting departmental enquiry. It is further contended that service of
the petitioner has been terminated by the Collector, District Dhamtari vide
impugned order dated 05.12.20218 (Annexure P-1), but he is not a
competent authority to terminate his service, as parent department of the
petitioner is ‘School Education Department’. As such, Collector, Dhamtari
was not a disciplinary authority of the petitioner. It is contended further
that termination of the petitioner has been made only on the basis of
alleged preliminary enquiry (Annexure R-3) dated 26.9.2018, but major
penalty of dismissal / termination of service cannot be made merely on the
basis of preliminary enquiry, therefore, dismissal / termination of service of
the petitioner is bad in law, hence, he submits that the petition may be
allowed and the relief as sought for by the petitioner may be granted to
him.
5. Respondents/State has filed its reply stating inter alia that since
there is efficacious alternative remedy is available to the petitioner to
4
prefer an appeal against the impugned order under the Rules, 1966,
therefore, the writ petition is not maintainable. Further, during the posting
of petitioner in Govt. Primary School, Piparchedi Uparpara, Block
Dhamtari, District Dhamatri, there was a complaint made against him in
the Lok Suraj Abhiyan, 2018 and in enquiry, allegations levelled against
him were found true. Thereafter, he was posted in Primary School,
Budhrapara, Chandema (kha) vide order dated 15.03.2018 issued by the
Chief Executive Officer, Janpad Panchayat, Nagri, but he did join the said
place, therefore, he was suspended by the District Education Officer,
Dhamtari vide order dated 30.07.2018 and attached to Government
Shringrishi Higher Secondary School, Nagari. During course of
departmental enquiry, only at once the petitioner appeared, thereafter he
never appeared inspite of issuance of several notices & reminders.
Subsequently, departmental enquiry has been constituted against him, in
which, charge-sheet was duly issued to the petitioner, but he did not
submit any reply / explanation, as such, Inquiry Officer completed
departmental enquiry and submitted enquriy report (Annexure R-3)
[it is actually a preliminary enquiry report] with a finding that the petitioner
has shown gross misconduct and negligence towards his duty and
recommended strict disciplinary action against him.
5.1. Learned counsel for the State/respondents while referring to its
reply would submit that since the petitioner did not appear in the inquiry
proceeding, therefore, contention of learned counsel for the petitioner that
neither charge-sheet has been issued nor any opportunity of hearing has
been afforded to the petitioner, has no substance. It is further submitted
that after receipt of preliminary inquiry report, District Education Officer,
5
Dhamtari, District Dhamtari vide order dated 4.10.2018 (Annexure P-6)
has instituted departmental enquiry against the petitioner and also
appointed Inquiry Officer and Presenting Officer. This order was also
endorsed to the petitioner, but despite clear instructions and reminders, he
did not appear. At that time, complaint with regard to involvement of the
petitioner in political activities was received, to which report was sought,
which was submitted against the petitioner. At the relevant time, Model
Code of Conduct was also effective, hence, conduct of the petitioner was
found against the provisions contained in Section 129 of the
Representatives of People Act, 1951. Offence under aforesaid Act was
also registered against him and the reply sought for from the petitioner
was not found satisfactory, therefore, considering all above facts, he was
dismissed / terminated from his service vide impugned order.
6. The petitioner has filed rejoinder to the return filed by the State
stating inter alia that service of the petitioner has been terminated without
serving a duly constituted charge-sheet, that too, on the basis of only
preliminary inquiry report. Termination of service cannot be made only on
the basis of preliminary inquiry report. In this regard, learned counsel for
the petitioner placed reliance upon the judgment of the Supreme Court in
the matter of Nirmala J. Jhala v. State of Gujarat & Another, reported in
(2013) 4 SCC 301 & State of Odisha v. Satish Kumar Ishwardas
Gajbhiye, reported in (2021) 17 SCC 90. Learned counsel for the
petitioner further submits that the respondents have failed to demonstrate
the channel of authorities, disciplinary and appeal, as initial appointing
authority of the petitioner was Chief Executive Officer (C.E.O.) of Janpad
Panchayat and the order of absorption dated 21.07.2018 (Annexure P-3)
6
was passed by District Education Officer, as such, order of dismissal could
have never been passed by the Collector/Respondent No. 3, Dhamtari
because he does not fall within the channel of disciplinary authority of the
petitioner, as such, order impugned is clear-cut violation of the provisions
contained in Rules, 1966 and the protection granted to employee under
Article 311 of the Constitution of India.
7. I have heard learned counsel for the parties and perused the
material available on record.
8. Undisputedly, the petitioner was regular employee of the ‘School
Education Department’ and while his dismissal from service by the
Collector, Dhamtari, District Dhamtari , he was posted as Assistant
Teacher (LB) in Govt. Primary School, Madvapathra, Block Dhamtari,
District Dhamtari (C.G.).
9. District Collector (Education), Dhamtari, District Dhamari had
dismissed the petitioner vide order dated 05.12.2018 (Annexure P-1),
which is reproduced hereinbelow ;-
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10. A bare perusal of the aforesaid order shows that it was passed by
the Collector, Dhamtari only on the basis of examination of merits &
demerits of the complaint received against the petitioner. Impugned order
8
(Annexure P-1) does not show that it was passed after departmental
enquiry conducted under the Rules, 1966 and finding guilty to the
petitioner.
11. In reply, respondents/State has pleaded that departmental enquiry
against the petitioner has been initiated, but it has not been pleaded that it
has been concluded and in that departmental enquiry, the petitioner has
been held guilty, rather as per reply of the State, only preliminary enquiry
report dated 26.09.2018 (Annexure R-3) has been obtained against the
petitioner, and thereafter, vide order dated 4.10.2018 (Annexure R-6),
District Education Officer, Dhamtari, District Dhamtari has instituted
departmental enquiry against the petitioner, but without concluding the
said departmental enquiry, respondent No. 3/Collector, Dhamtari has
terminated the service of the petitioner vide impugned order dated
05.12.2018.
12. During course of submission, learned counsel for the State also
admitted the fact that impugned order has not been passed by respondent
No. 3/ Collector, Dhamtari on the basis of departmental enquiry report
holding guilty to the petitioner. Thus, it is abundantly clear that impugned
order of dismissal has been passed without conducting due departmental
enquiry against the petitioner, that too, without holding him guilty in such
departmental enquiry, whereas, the petitioner was a regular employee.
13. In the instant case, the petitioner was regular employee and he has
been dismissed from his service by imposing ‘major penalty’ contemplated
under sub-Rule (9) of Rule 10 of the Rules, 1966 without following
procedure contemplated under Rule 14 (1) of the Rules, 1966, provides
9
thus :-
“14. Procedure for imosing major penalities – (1) No
order imposing any of the penlaties in clauses (v) to (ix) of
Rule 10 shall be made except after an inquiry held, as far
as may be, in the manner provided in this rule and Rule
15, or in the manner provided by the Public Servants
(Inquiries) Act, 1850 (37 of 1850), where such inquiry is
held under that Act.”
14. A focused glance of the aforesaid Rules specifically shows that
‘major penalty’ as specified in clauses (v) to (ix) of the Rule 10 cannot be
made without conducting deparmental enquiry, as envisaged in rule 14(1)
to (23) and Rule 15 of the Rules, 1966.
15. At this stage, it would be appropriate to notice the safeguard and
protection guaranteed to the Government servant under Article 311(2) of
the Constitution of India, which provides as under:-
“311. Dismissal, removal or reduction in rank of
persons employed in civil capacities under the Union
or a State – (1) xxx xxx xxx(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank except after an
inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being
heard in respect of those charges:
Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the evidence
adduced during such inquiry and it shall not be necessary
to give such person any opportunity of making
representation on the penalty proposed :
Provided further that this clause shall not
apply –
10
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct which has
led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or
remove a person or to reduce him in rank is satisfied
that for some reason, to be recorded by that authority
in writing, it is not reasonably practicable to hold such
inquiry; or
(c) where the President or the Governor, as the case
may be, is satisfied that in the interest of the security
of the State it is not expedient to hold such inquiry. ”
16. Article 311 basically aims at providing security of tenure to
Government servants and guarantees constitutional protection to
persons employed in civil capacities under Union and States against
arbitrary dismissal, removal and reduction in rank. The protection is two
fold –
(a) against removal or dismissal by an authority subordinate to that
by which employee was appointed, and
(b) against dismissal, removal and reduction in rank without giving
the employee a reasonable opportunity of being heard in an enquiry
without complying with the principles of natural justice.
17. The enquiry contemplated by Article 311(2) of the Constitution of
India is what is generally known as a departmental enquiry and the
constitutional requirement for a proper enquiry within the meaning of
Article 311(2) are basically two fold-
(i) The civil servant must be informed of the charges against him,
and
(ii) He must be offered a reasonable opportunity of being heard in
respect of those charges.
11
18. The scope of the words “dismissed” and “removed” employed
under Article 311 of the Constitution of India came up for consideration
before the Constitution Bench of the Supreme Court in the matter of
Moti Ram Dheka v. General Manager, North Easter Frontier Railway 1
in which Subba Rao, J., in his concurring yet separate opinion, has
expressed that the said words mean nothing more or less than the
termination of the services of a person’s office. The effect of dismissal or
removal of one from his office is to discharge him from that office i.e. to
bring about cessation of service. Thus, the said words comprehend
every termination of service of a Government servant. Article 311(2) in
an effect therefore lays down that before the services of a Government
servant are so terminated, he must be given a reasonable opportunity of
showing cause against such a termination. Their Lordships further held
that there is no decision for placing any limitation on the said expression.
The attempt to imply the said limitation is neither warranted by the
expressions used in the Article or by the reason given. If such limitations
are imported, then it would lead to an extraordinary result that a
Government servant, which has been guilty of misconduct would be
entitled to a reasonable opportunity, whereas an honest Government
servant could be dismissed without any such protection. A Government
servant holding a substantive lien to a permanent post cannot be
removed from the said post without affording a reasonable opportunity,
as is contemplated under Article 311(2) of the Constitution of India. It is
therefore evident that the right held by a Government employee to hold a
post cannot be interfered lightly in case any such proceeding is required
to be undertaken, necessary care and caution has to be ensured by the
1 AIR 1964 SC 600
12
Government, which in order to safeguard the interest of a Government
employee, as is contemplated under Article 311(2) of the Constitution of
India. It has been observed as under in paragraphs 67 and 68 :-
“67. Therefore, whether the natural and dictionary
meaning of the words “dismissal” and “removal” were
adopted or the limited meanings given to those words by
R. 49 were accepted, the result, so far as a permanent
employee was concerned would be the same, namely,
that in the case of termination of services of a
Government servant outside the three categories
mentioned in the explanation, it would be dismissal or
removal within the meaning of Art. 311 of the Constitution
with the difference that in the former the dismissed
servant would not be disqualified from future employment
and in the latter ordinarily he would be disqualified from
such employment.
68. If so, it follows that if the services of a permanent
servant, which fall outside the three categories mentioned
in the explanation, were terminated, he would be entitled
to protection under Art. 311 (2) of the Constitution.”
19. The petitioner was a permanent Government servant. He had a
right to his substantive rank. The Supreme Court in the matter of
Parshotam Lal Dhingra v. Union of India 2 has held that mere
termination of service, without more, of such an employee, would
constitute his ‘removal’ or ‘dismissal’ from service attracting Article
311(2) of the Constitution of India. As such, the constitutional protection
and safeguard guaranteed under Article 311(2) cannot be taken away
by a side wind without following the provisions contained under Article
311(2) of the Constitution of India.
20. In the matter of Jai Shanker v. State of Rajasthan3, the question
that fell for consideration before the Constitution Bench of the Supreme
2 AIR 1958 SC 36
3 AIR 1966 SC 492
13
Court was, whether the provisions contained under the Jodhpur Service
Regulations was sufficient to enable the Government to remove a
person from service without giving him an opportunity of showing cause
against that punishment, if any, and it was answered in negative holding
that the regulation involves a punishment for overstaying one’s leave
and the burden is thrown on the incumbent to secure reinstatement by
showing cause and the Government cannot order a person to be
discharged from service without at least telling him that they propose to
remove him and and without giving him an opportunity of showing
cause as to why he should not be removed. It has further been
observed as under :-
“6. … A removal is removal and if it is punishment for
overstaying one’s leave an opportunity must be given to
the person against whom such an order is proposed, no
matter how the regulation describes it. To give no
opportunity is to go against Article 311 and this is what
has happened here.
7. In our judgment, Jai Shankar was entitled to an
opportunity to show cause against the proposed removal
from service on his overstaying his leave and as no such
opportunity was given to him, his removal from service
was illegal. He is entitled to this declaration.”
21. Similarly, in the matter of Deokinandan Prasad v. State of Bihar 4,
another Constitution Bench of the Supreme Court has held that an order
of termination of service passed under Rule 76 of the Bihar Service Code
on account of the servant’s continuous absence for five years without
giving an opportunity to the servant under Article 311(2) of the
Constitution of India would be invalid.
4 (1971) 2 SCC 330
14
22. The aforesaid principles of law laid down in Jai Shanker (supra)
and Deokinandan Prasad (supra) have been followed with approval by
their Lordships of the Supreme Court in the matter of State of Assam v.
Akshaya Kumar Deb5 wherein the question that required consideration
was as under :-
“7. The only question that falls for determination is
whether the services of the respondent could be
terminated under Rule 18 of the Assam Fundamental and
Subsidiary Rules, without complying with the procedure
prescribed in Article 311(2) of the Constitution of India ?”
23. Relying upon the decisions rendered in Jai Shanker (supra) and
Deokinandan Prasad (supra), their Lordships answered the aforesaid
question as under :-
“14. Now in the case in hand, the impugned order was
made against the consent of the respondent who has
throughout been willing to continue in service. His case
is that after the expiry of his leave he reported for duty
and produced a medical certificate of his fitness, but he
was arbitrarily and maliciously not allowed to work after
September 13, 1956. Indeed his contention is that in
these circumstances, F.R. 18 would not be attracted.
Apart from the constitutional requirement of Article 311(2)
natural justice and fairplay required that he should have
been given a chance to substantiate his contention. The
fact remains that given an opportunity, he would have
controverted seriously the circumstances of his absence
from duty on the basis of which the impugned action has
been taken.
17. Even if it is assumed that termination under F.R. 18
does not cause forfeiture of benefits already earned such
as pension, etc., then also that will not, by itself, take it
out of the category of ‘removal’ as envisaged by Article
311(2). The respondent was a permanent government
servant. He had a right to his substantive rank.
According to the test laid down by this Court inParshotam Lal Dhingra‘s case, the mere termination of
service, without more, of such an employee would
constitute his ‘removal’ or ‘dismissal’ from service,
attracting Article 311(2). From the constitutional
standpoint, therefore, the impugned termination of
service will not cease to be ‘removal’ from service merely
because it is described or declared in the phraseology of
F.R. 18 as a ‘cessation’ of service. The constitutional
protection guaranteed by Article 311(2) cannot be taken
away “in this manner by a side wind”.
21. The above enunciation applies to the facts of the
present case. Excepting the length of the period of
absence, the basic features of Regulation 13 in Jai
Shanker‘s case (supra) were very similar to those of F.R.
18 now under consideration. The words “should be
considered to have sacrificed his appointment” in
Regulation 13, substantially correspond to the words
“servant ceases to be in Government employ” in F.R. 18.
Further the import and effect of the phrase “may only be
reinstated with the sanction of the competent authority” in
the regulation, is largely the same as that of the opening
clause “unless the Provincial Government, in view of the
special circumstances of the case shall otherwise
determine” in F.R. 18. The difference between the
regulation and F.R. 18 as to the length of absence from
duty prescribed as a condition precedent for the attraction
of the respective provision, is a distinction without a
difference in principle. The consequence of absence,
though for different periods, envisaged by both the
provisions, is the same, viz., “sacrifice” or “cessation” of
the absentee’s service. The present case will thus be
governed by the ratio of Jai Shanker‘s case.
24. In view of the above approach, it is not thought
necessary to express any final opinion as to the
constitutional validity of Rule 18 of Assam Fundamental
and Subsidiary Rules. Although couched in ambiguous
and unhappy language, the rule is capable of being
interpreted and worked consistently with the requirement
of Article 311(2) of the Constitution. This, however,
should not lull the Government into a sense of
complacency and belief that all is well with the rule. The
sooner it is suitably amended, the better will it be in the
interest of all concerned.”
16
24. Reverting to the facts of the instant case, in light of the provisions
contained in Rules, 1966 and principles of law laid down by their
Lordships of the Supreme Court in afore-cited cases, it is quite vivid that
undisputedly the petitioner was a regular / confirmed employee on the
post of Assistant Teacher (LB) and by imposing major penalty, he has
been dismissed / terminated from his service without conducting regular
departmental inquiry as contemplated under Rule 14 of the Rules, 1966,
which is not only against the Rule 14(1) of the Rules, 1966, rather it also
against the constitutional / protection as contemplated under Article 311
(2) of the Constitution of India, because once the petitioner was appointed
on substantive post and his services have been confirmed, even if he has
committed misconduct, procedure envisaged under Rules, 1966 and
Article 311 (2) of the Constitution of India was required to be followed and
the petitioner ought to have been given reasonable opportunity of being
heard as contemplated in Rule 14 of the Rules, 1966, but the same has
not been followed while his dismissal / termination from his service, as
such, order impugned dated 05.12.2018 (Annexure P-1) is bad in law and
deserves to be set aside.
25. One more ground for holding impugned order bad in law is that, the
petitioner was employee of School Education Department, but he has
been dismissed by respondent No. 3/Collector, Dhamtari, whereas, he is
not a disciplinary / controlling authority of the petitioner. Though at the
time of dismissal of the petitioner from service, he was said to be attached
to the office of the District Election Officer (General Branch), District
Dhamtari (C.G.), but such attachment only does not give right to
respondent No. 3/Collector, Dhamtari for dismissal of the petitioner from
17
the services, rather if he was found guilty of any misconduct, then such
issue may be referred to the Disciplinary Authority of parent department of
the petitioner, but no such procedure has been followed and he has been
arbitrarily dismissed from his services by the Collector, Dhamtari /
respondent No. 3, that too, without following principles of natural justice
and only on the basis of alleged preliminary inquiry report dated 26.9.2018
(Annexure R-3) and complaint made by a person belonging to a political
party.
26. In the case of Nirmala J. Jhala (supra), their Lordships of the
Supreme Court have held as under :-
“The preliminary inquiry may be useful only to take a
prima facie view, as to whether there can be some
substance in the allegation made against an
employee, which may warrant a regular employee.”
27. Hon’ble Supreme Court in the case of Nirmala J. Jhala (supra), has
held in paragraph 51 as under :-
“51. ………………Natural justice is an inbuilt and
inseparable ingredient of fairness and
reasonableness. Strict adherence to the principle is
required, whenever civil consequences follow up, as a
result of the order passed. Natural justice is a
universal justice. In certain factual circumstances
even non-observance of the rule will itself result in
prejudice. Thus, this principle is of supreme
importance. (Vide S.L. Kapoor v. Jagmohan6, D.K.
6 (1980) 4 SCC 379
18Yadav v. J.M.A. Industries Ltd.7 and Mohd. Yunus
Khan v. State of U.P.8)”
28. In instant case, petitioner has been dismissed from service without
departmental enquiry and without providing him opportunity to cross-
examine the witnesses and only on the basis of preliminary inquiry report,
as such, it cannot be said that principles of natural justice has been
followed. Hence, order impugned dated 5.12.2018 is suffering from lack of
jurisdiction / authority as also in utter violation of principle of natural
justice, therefore, on this count also it is held illegal and bad in law.
29. Consequently, in the considered opinion of this Court, impugned
order dated 5.12.2018 (Annexure P-1) passed by respondent No. 3/
Collector, Dhamtari is liable to be and is hereby quashed / set aside.
30. As a result, the respondents are directed to reinstate the petitioner
to the post of Assistant Teacher (LB) within 30 days from the date of
receipt / submission of copy of this order. Since dismissal of the petitioner
was made by the Collector, Dhamtari (C.G.) without authority, arbitrarily
and in utter violation of rules / law, therefore, the petitioner is also held
entitled for all consequential benefits including arrears of pay and seniority
on such post, which shall be complied within a further period of 60 days.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Amit
Digitally signed
AMIT by AMIT
KUMAR DUBEY
KUMAR Date:
DUBEY 2025.03.04
10:42:22 +05307 (1993) 3 SCC 259
8 (2010) 10 SCC 539
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