Chattisgarh High Court
Jitendra Kumar Jha vs State Of Chhattisgarh on 1 April, 2025
1
2025:CGHC:15362
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 2738 of 2020
1 - Jitendra Kumar Jha, S/o Digambar Jha, Aged About 35 Years R/o Quarter
No. 1 - B/ 135, Bishrampur, District Surguja Chhattisgarh., District : Surguja
(Ambikapur), (C.G.)
... Petitioner
versus
1 - State Of Chhattisgarh Through The Secretary Agriculture, Mahanadi
Bhawan, Mantralaya, Atal Nagar, Nava Raipur, District - Raipur Chhattisgarh.,
District : Raipur, (C.G.)
2 - Director Agriculture Department, Indrawati Bhavan, Atal Nagar, Nava
Raipur, District Raipur Chhattisgarh., District : Raipur, (C.G.)
3 - Additional Director General Of Police (Confidential) Special Branch, Police
Head Quarter Ground Floor, Block No. -01, Atal Nagar, Nava Raipur, District
Raipur Chhattisgarh., District : Raipur, (C.G.)
4 - Additional Director (Agriculture), Directorate, Agriculture, Indrawati Bhavan,
Atal Nagar, Nava Raipur, District Raipur Chhattisgarh., District : Raipur, (C.G.)
... Respondents
For Petitioner : Mr. Devashish Vishwas, Advocate.
For Respondent(s) : Mr. Santosh Soni, Govt. Advocate .
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Hon’ble Mr. Justice Naresh Kumar Chandravanshi
Order on Board
01/04/2025
Heard.
1. Instant writ petition under Article 226 of the Constitution of India has
been filed by the petitioner challenging the impugned order dated 01.06.2020
(Annexure P-1) issued by respondent No. 2 – Director, Agriculture whereby the
petitioner has been removed from the post of Rural Agriculture Extension
Officer.
2. Facts of the case, in nutshell, as projected by the petitioner is that the
petitioner was initially appointed as “Rural Agriculture Extension Officer” by the
respondent Agriculture Department vide order dated 7-5-2008 on a probation
period of two years and the petitioner has joined his service on 20-5-2008.
After completion of probation period of 02 years, the respondents neither
issued the order of confirmation of service of the petitioner nor issued order for
extension of probation period. After serving more than 11 years of service with
the respondent Agriculture Department, all of a sudden in the year 2019, a
show cause notice dated 29-3-2019 was issued to the petitioner alleging
therein that he suppressed his criminal record i.e. Ishtgasha No. 30/49/2001
registered against him under Sections 151, 107 and 116 of Cr.P.C. and
another criminal case bearing Crime No. 155/2011 for the offence punishable
under Sections 341, 294, 506-B, 323, 147, 148 and 325 of the IPC, in which,
he has also been charge-sheeted. The petitioner filed reply to the said
show-cause notice vide Annexure P-6, but without considering his reply and
without conducting any departmental enquiry against the petitioner, he has
been removed from service vide impugned order. Being aggrieved &
dissatisfied with the same, instant writ petition has been preferred challenging
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the same.
3. Learned counsel appearing for the petitioner would submit that though
formal order of confirmation of employment of the petitioner was not passed by
the respondents-Department, but he served for more than 11 years with the
Respondent-Agriculture Department, therefore, his service was deemed to be
confirmed, therefore, the petitioner was entitled to get his service protected
under Article 311 of the Constitution of India and without conducting formal
enquiry, punishment of major penalty cannot be imposed against the petitioner
by removing him from service. He further submits that on 20.05.2008, when
the petitioner joined the service of Rural Agriculture Extension Officer, no such
declaration / attestation form was sought to be filled by him. First time, in the
month of October, 2011 i.e. after completion of probation period, he was
served such declaration form (Annexure R-1) to be filled by him. He further
submits that while supplying the declaration form (Annexure R-1), he was
asked by respondent authorities that he has to state about his criminal
antecedents as on the date of joining of service, therefore, he had not
disclosed about criminal case bearing Crime No.155 / 2011 registered on
21.06.2011 at Police Station Vishrampur, District Surajpur and Ishtgasha No.
30/49/2001 pertaining to Sections 151, 107 and 116 of the Cr.P.C., which
belongs to preventive action and does not fall in the category of crime, as
such, it would not amount to an offence involving moral turpitude. He further
submits that criminal case bearing Crime No. 155 / 2011 was registered
against the petitioner on 21.06.2011 i.e after much later of his joining on the
said post, therefore, not disclosing about the aforesaid criminal case cannot be
a ground of his removal from services, that too, without conducting any
departmental enquiry. In this regard, learned counsel for the petitioner placed
reliance upon the judgment of the Supreme Court in the matter of Pawan
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Kumar v. Union of India and another1 {paragraph 17}, which has further
been reiterated & followed by Hon’ble Supreme Court in the case of Ravindra
Kumar vs. State of Uttar Pradesh and others 2. He further submits that
aforesaid criminal case has been disposed of by the trial Court vide order
07.09.2014. He further submits that since the order impugned has been
passed in utter violation of provisions contained in Article 311 of the
Constitution of India as well as Madhya Pradesh (Now Chhattisgarh) Civil
Services (Classification, Control & Appeal) Rules, 1966 (henceforth, “Rules,
1966”), therefore, the same may be set aside.
4. Learned counsel for the petitioner further informed to the Court that in
pursuance of the stay order granted by this Court on 15.07.2020, the petitioner
is still in service, but no increment has been granted to the petitioner,
therefore, he prayed that relief, as sought for, may be granted to him.
5. Respondents – State has filed its return stating inter alia that prior to
joining of petitioner on said post, one Ishtgasha No. 30/49/2001 under
Sections 151, 107 and 116 of the Cr.P.C. was registered against him.
Subsequently, after joining of petitioner on the post of Rural Agriculture
Extension Officer, FIR bearing Crime No. 155/2011 was registered against him
under Sections 341, 294, 506-B, 323, 147, 148 and 325 of the IPC and in
pursuance thereof, he was arrested by the police, despite that when
declaration form dated 23.10.2011 (Annexure R-1) and another declaration
form (Annexure R-4) dated 24.09.2015 (Annexure R-4) were filled by him with
the Respondent – Department, at that time, neither he disclosed about
Ishtgasha registered against him nor criminal case registered against him.
Thus, he concealed about the criminal antecedents at the time of filling-up
declaration forms and thereby petitioner violated the terms & conditions of
1 (2023) 12 SCC 317
2 (2024) 5 SCC 264
5
order of his appointment dated 7.5.2008 (Annexure P-2).
6. Learned counsel for the State while referring to its reply would submit
that If there are two criminal records against the Government servant, then
he/she cannot be supposed to be fit for such employment, as they have to
maintain good relations with the villagers/farmers to give them suggestions
regarding their agriculture work. Learned State Counsel while referring to
condition No. 1 of appointment order dated 07.05.2008 (Annexure P-2) and
directions (Annexure P-4) dated 20.12.2007 issued by State of Chhattisgarh
would submit that since the petitioner has obtained employment by concealing
his criminal antecedents, therefore, regular departmental enquiry was not
required to be conducted against him for his removal from service. He further
submits that since criminal offence registered against the petitioner was
pertaining to the “moral turpitude” as provided in Schedule ‘A’ of Annexure P-4
(Page No. 27 of the petition), therefore, order impugned does not suffer from
any perversity or illegality warranting interference of this Court in the instant
petition.
7. I have heard learned counsel for the parties and perused the pleadings
and documents appended thereto with utmost circumspection.
8. Undisputedly, the petitioner was appointed on the post of “Rural
Agriculture Extension Officer” by the respondent Agriculture Department vide
order dated 07.05.2008 and he joined on the said post on 20-5-2008. Though,
no formal order in respect of confirmation of service of the petitioner has been
passed by the respondent Agriculture Department, but counsel appearing for
the State did not controvert the fact that there is circular issued by the State
Government that if order with regard to confirmation of employee is not passed
within the reasonable period, then he shall be deemed to be confirmed
employee. The petitioner was removed from his service after serving more
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than 11 years with the respondent- Agriculture Department, therefore, he is
supposed to be deemed confirmed government employee of respondent –
Agriculture Department.
9. 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 –
(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. ”
10. 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 provision is two fold –
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(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.
11. 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.
12. 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 3 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
3 AIR 1964 SC 600
8
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 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.”
13. 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 India4 has held that mere termination of service,
4 AIR 1958 SC 36
9
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.
14. In the matter of Jai Shanker v. State of Rajasthan5, the question that
fell for consideration before the Constitution Bench of the Supreme 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.”
15. Similarly, in the matter of Deokinandan Prasad v. State of Bihar 6,
another Constitution Bench of the Supreme Court has held that an order of
5 AIR 1966 SC 492
6 (1971) 2 SCC 330
10
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.
16. 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 Deb7 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 ?”
17. 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 a7 (1975) 4 SCC 339
11right to his substantive rank. According to the test laid down
by this Court in Parshotam 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.”
18. Further, procedure for imposing major penalty against the government
employee has been contemplated in Rule 14 (1) of the C.C.A. Rules, 1966,
which reads thus :-
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“14. Procedure for imposing major penalties- (1) No order
imposing any of the penalties 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 rules 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.”
19. In instant case, no departmental enquiry has been conducted against
the petitioner and without such an enquriy, he has been removed from his
service vide impugned termination order dated 01.06.2020 (Annexure P-1)
only because he did not disclose about his criminal antecedents.
20. So far as non-disclosure of criminal antecedents by the petitioner is
concerned, it is pertinent to note here that the petitioner joined on the post of
“Rural Agriculture Extension Officer” on 20.5.2008 and said declaration was
first time sought for from him by the respondent- Agriculture Department in the
month of October, 2011 {page No. 10} and another declaration form dated
24.09.2015 vide Annexure R-4 {page No. 21} whereas as per terms of
appointment order dated 07.05.2008 (Annexure P-2) and the Circular issued
by the State Government dated 20th December, 2007 (Annexure P-4), such
verification / declaration ought to have been got filled-up from employee while
his joining on the post.
21. In the instant case, such declaration forms dated 23.10.2011 (Annexure
R-1) and another declaration form dated 24.09.2015 (Annexure R-4) were
asked to be filled up by the Respondent – Agriculture Department after three
years of joining of the petitioner in said service. Moreover, Ishtgasha No.
30/49/2001 registered under Sections 151, 107 and 116 of the Cr.P.C. does
not fall under the offence of “Moral Turpitude” as per Schedule ‘A’ of Annexure
13
P-4 and Criminal case bearing Crime No.155/2011 was registered against the
petitioner on 21.6.2011 i.e. after three years of his joining on the post of ‘Rural
Agriculture Extension Officer’, that too after period of completion of probation
period of two year and nothing has been brought on record by respondent
authorities that his probation period was extended after two years of his
joining.
22. In the case of Pawan Kumar vs. Union of India and another8, the
petitioner filed application form for employment to the post of “Constable” on
27.2.2011, thereafter, “attestation form” has been filed by the him at a later
stage i.e. on 27.05.2014, in which, certain information was sought to be
disclosed by him in Clauses 12(a) and 12(b) of the verification form, according
to the petitioner, he mentioned “No” and thereby he had not disclosed about
his criminal antecedents.
23. In aforesaid case Pawan Kumar (Supra), Hon’ble Supreme Court has
held in paragraph 17 as under :-
“17. One distinguishing factor, as noticed above, is that the
criminal complaint/FIR in the present case was registered
post submission of the application form. We have also taken
into account the nature of the allegations made in the criminal
case and that the matter was of trivial nature not involving
moral turpitude. Further, the proceedings had ended in a
clean acquittal. As is clear from paragraph 38 in Avtar Singh
v. Union of India9, all matters cannot be put in a straitjacket
and a degree of flexibility and discretion vests with the
authorities, must be exercised with care and caution taking all
8 (2023) 12 SCC 317
9 2021 SCC OnLine SC 3237
14the facts and circumstances into consideration, including the
nature and type of lapse.”
24. In the case in hand also, the said criminal case was registered against
the petitioner after his joining in the services and Ishtgasha would not amount
to an offence involving moral turpitude. Further, the said criminal case has
been concluded on the basis of settlement arrived at between the parties,
therefore, without affording due opportunity of hearing and without conducting
a formal departmental enquiry, respondents- Department ought not to have
removed the petitioner from his service dehoring the statutory and
constitutional provisions, therefore, order impugned dated 01.06.2020 passed
by respondent No. 2 suffers from grave perversity and illegality, hence, the
same is liable to be and is hereby set-aside/ quashed.
25. As informed by counsel for the petitioner that under the protection of
interim stay order passed by this Court on 15.07.2020, the petitioner is still
working on the said post, therefore, in consequence of this order, he be
allowed to work on the said post as of prior to order dated 1.6.2020 and all
service benefits be provided to him without any hindrance.
26. Accordingly, the writ petition is allowed.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Amit
Digitally signed
AMIT by AMIT
KUMAR DUBEY
KUMAR Date:
DUBEY 2025.04.11
12:07:55 +0530
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