IN THE HIGH COURT OF CHHA’IVFISGARH : BILASPUR Writ Petition (S) No. 5977 of2006 WRIT PETITION UNDER ARTICLE 226] 227 OF THE CONSTITUTION OF INDIA (SB: Hon’ble Shri Satish K. Agnihotri J.) Shn' Rakesh Pandey, Advocate for the petitioner. Shri Arun Sac, Govt. Advocate for the mspondents No. 1, i2 and 4. 0 R D E R (Passed on this 19th Day of March, 2009) The present petition, filed under Article 226/ 227 of the Constitution of India impugns the order dated 13.10.2006 (Annexure P/ 1), passed by the Iespondent No.3, as being unconstitutional on the ground mat the petitioner was not afforded any opportunity of hearing and the order of termination was passed in contravention of the provisions of Rule '7 of the Chhattisgarh Panchayat Service (Discipiine and Appeal) Rules, 1999 (for short ‘the Rules, 1999’}. Learned counsel appearing for the petitioner submits that the petitioner was appointed as Panchayat Secretary of Gram Petitioner Roopdeo Prasad Gupta S/o Shri Nanaku, aged about 35. years, Secretary of Gram Paxichayat Mukundpur, Rio Village Parli, District — Surguja (C. G.) Versus Respondents 1. State of Ch hattisgarh, Through the Secretaxy, Panchayat and Rural Welfare Department, D.K.S. Bhawan, Raipur (C.G.). 2. The Deputy Director Panchayat 8:. Social Weifare Surguja, Ambikapur, Distt. Surguja «1G; 3. The Sarpanch Gram Panchayat Muknndpur, Janpad Panchayat Lakhanpur, Distt. Surguja (C.G.) 4. The S,D.O. Am'bikapur, Distt. Surguja (C.G.) 5. The Chief Executive Ofhcer, Janpad Panchayat Lakhanpur, District Surguja (C.G.) Panchayat Mukundpur, District Surguja and subsequently he was declared as Panchayat Secretary on 25.4.2005 (Annexure Pl 2). In the mating of Gram Sabha, heki on 8. 10.2006 (Annsxure Pf 4), without assigning any reason and without giving any show cause notice or an opportunity of hearing’the resolution was passed to remove the petitioner from the post of Panchayat Karmi. By the impugned order dated 13.10.2006 (Annexure P/ 1), passed by the respondent No.3] Sarpanch in compliance of the resolution No. 24 of the Gram Sabha dated 8.10.2006, the petitioner has been removed from the post of Panchayat Karmi. Learned counsel appearing for the petitioner submits that Rule 7 of the Rules, 1999 provides for procedure before terminating service of a member of Panchayat. In the instant case, the said provisions were not followed, no definite charges were named and the petitioner was not served with the alticles of charges before holding an enquiry, leading to termination of the petitioner from his services and in’fact neither the show cause notice was issued nor the enquiry was held. It was stated that the termination was passed on the basis of the resolution No. 24 of the Gram Sabha, held on 8.10.2006. The same could not have been passed without following the provisions of law, prescribed in Rule 7 of the Rules 1999. In support of his submissions learned counsel cited a decision of this Court in the matter of Dhaluram Kosaria Vs. State of C.G. 85 othersl, which was relied on in Anjordas Vs. state of Chhattisgarh & others? . 1 {2006(2) C.G.L.J. 186} 2 {2008 (111) MPJR‘CG 110} m3/ Learncd counsel appearing for the respondants No. 1, 2 & 4/ State fairly admits that the provisions of Rule 7 of the Rules, 1999 were not complied with beforo passing of the impugned order. However, he submits that there is availability of alternative remedy and as such this petition may be dismissed on the ground of avaiiability of the alternative remedy. After having heard learned counsel appearing for the parties and having perused the pleadings and records appended thereto, it is evident that the impugned termination order was passed Without following the proper procedure of law, as prescribed under Rule 7 of the Rules, 1999. The procedure for holding an enquiry is prescribed under Rule 7 of the Rules, 1999 for imposition of major penalty that has not been followed. Hence, the termination is bad and vitiated on the ground of non—compliance of the statutory provisions and denial of the principles of natural justice. It amounts to infraction of not only the provisions of Rule ’7 of the Rules, 1999 but the provisions of Article 311(2) of the Constitution of India also. The order is in fact penal in nature, having civil consequences and as such the elaborate provisions of Rule 7 of the Rules 1999 are applicable in the case of the petitioner before terminating his services. (See the case of Dhaluram Kosaria and Anjordas (supra) } With regard to the availability of the alternative remedy, it is Well settled that the rule of exclusion of Writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of the compulsion. The entire case rests on the inhaction of constitutional protection prescribed under Article 311(2) of th€ (vLjr Constitution of India and non-application of the statutory provisions, as such the altornative remedy may not be a proper forum, at this stage. In View of the foregoing, the impugned order dated 13.10.2006 (Annexm‘e P/ 1) is bad and is quashed. On the question of back wages, no foundation has been laid to establish the fact that Whether the petitioner was gainfully employed elsewhere or not during this period. Even otherwise, keeping in View that the termination order has been vitiated not on merit but on account of non—compliance of the statutory provisions before terminating the services of the petitioner, 30% back wages would be sunicient in the interest ofjustice. Accordingly, the writ petition is allowed. No order asto costs. However, the respondents/authorities, on their request are granted liberty to take fresh steps in accordance with Rule 7 of the Rules, 1999, if so advised. Satish K. Agnihotri“ ‘ Judge 10. Sd/-