^^'°5 IN THE H1GH COUKI' OF CHHA'n'lSGAKH : BILASPUR WritPetition No. 1350 of 2002 PetitioDcr Mool C.band Maravi, S/o Babiilal Maravi, aged 34, R/o Karseewa, Thaaa Manvalri, Tah Pendra Road, Distt. Bilaspur (C.Q.) Versus Respondents 1. State of Chhattisgarh, TIirough Panchayat and Vfflage Developinent Departraent, Ivlantralaya, D.K.S. Bhawan, Raipur (C.G.). 2. Additioiial CoUector, Bilaspur (C.G.). 3. Chief Executive OfEicer, Janpad Panchayat Marwahi, Distt. Bilaspur (C.G.) WRIT_PfcTlTIQN UND_ER ARTItCLE_226/_227 QF_T11E CONSTrrUTIQN OF INDIA (SB: Hon'Me SIiri Satish K. Agmhotri J.) Shri Ravish Verma, Advocate for tfae petitioner. Stari M. P. S. Bhatia, Deputy Govt. Advocate for the respoxidents No, 1 aad 21 State. None tbr thc respondent No.3, desplte service ofnotice. 2. O RO E R (Passed on this 4dl Day of March, 2009) The present petition, tited under Article 226/227 of the Coustitution of India unpugns tbe order dated 4.5.2002 (Axuiexure P/1), passed by the respondent No.3, as beir^ T.uiconstitutioiial on tb.e ground that ttie petitioner was not afibrded any opportunity of faearing and the order of termtnatioa was passed in contravention of the provisions of Rule 7 of fbe ChJbattisgar.ti PancJiayat Service (Discipiine aud Appeal) Rules, 1999 (for short 'tbe Rules, 1999'J. Leamed counsel appearing Ibr tbe petitioner submits that fhe petitioner was appoiated as Pancbayat Secretary of Gram Pauchayat Karseewa on 2.10. 1995. By the impugned order datcd ;! 'r 'iy. 'i., 'S I;i:i^ ^ SS!3i. ^ ^ y/i^w-"" ^^-' 4. 4.5.2002 (Aiuiexure P/1), passed by the respondent No.3 in coxnpiiance ot the order dated 23.4.2002, passed by the respondent No.2, tbie petitioner has been reiuoved 6-osi the post of Paachayat Secretary. Leamed counsel appearu^ tbr ttie petitioiier subauts that Rute 7 of ttie Rules, 1999 provides tbr procedure before terminatmg service of a uieinber of Pauchayat. In the instaut case, the said provisions were not followed, no definite chai^es were fraincd and ftie petitioner was not served with fhe articles of charges betbre holding an. enquiiy, leadit^ to termination ofthe pctitioner from. his services aud ui lact neither the show cause notice was issued nor the enquiry was he.ld. It was stated fbat the tp.rmination was passed on the basis of the alleged irregularities, thus the order is stigxnatic. TIie sam.e could not have been passed without tbllowiag the provisioiis of Jaw, prescribed ta Rule 7 of th.e Kules 1999. In support of iais subnussions leanied counsel cited a decision of this Court in the inatter of Dbaluram Kosaria Vs. State of C.G. & others1, which was relied on in Anjordas Vs. State of Chhattisgarli 8s otbersa . None appears nor any representation is made on behalf of fhe respoadent No,3. However, the respondent No.3 has filed retura, annexing the notice dated 26.12.2001 (Annexure R/1) whereia on six poiuts the petitioner was directed to subinit bis reply wifhia fhree days. It is apparent, as fhe petitioner did not subinit his reply withiu three days, by order dated 18.1.2002 (Amiexure R/2) it was proposed by ftie Chiet' Executive Officer, Jaapad ' {2006(2) C.G.L.J. 186} 2 {2008 (III) MPJR-CG 110} Panctiayat, Marwahi to reinove tfae petitioner froni the post of Secretary (Paachayat Karmi). Thereatter, by order dated 19.4.2002 (Annexure R/3) passed by the Addmonal CoUector, Bilaspur the petitioner was reiuoved from. the post of Secretary of viUage Paucbayat, Karseeva. 5. Leamed counsel appearing tbr the rcspondents No. 1 & 2/ State subinits that there is availability of altemative reiaedy and as such this petition inay be dismffised on the ground of availabiUly of the alteraative remedy. 6. After ib.aving heard learaed couiisel appearing for tlie parties aad havjng perused the pleadings aad records appeuded thereto, it is evident that the impugned termination order was passed without foUowiag the proper procedure of law, as prescribed imder Rule 7 of fhe Rules, 1999. The termiuation of the petitioner was not a tenniuation sictipliciter, but on the basis of the aUeged chai^es of couunittuig certain irregularities. The procedure for holduig au enquiry is prescribed. under Rule 7 of fhe Rules, 1999 for imposition of inajor penalty fhat has not been foUowed. Hence, the termin.atlon is bad and vitiated on the ground of non- coinpUance of the statutory provisions and denial of ftie pruiciples of natural justice. It amounts to uilTaction of not only the provisious of Rule 7 of the Rules, 1999 but the provisions of Article 3ll(2) of the Constitutiou. of India also. The order is in fact penal in nature, having civil consequences aiid as such the elaborate provisions of Rule 7 of the Rules 1999 arc applicable in the case ofthe petitioner before terminating his services. (See the case of Dhaluram Kosarla and Aajordas (supra)} ^r :•> 7. 8. 9. 10. 11. With regard to ttie availability of the alterna.tive reiuedy, it is well settled fhat the rule of exclusion of writ jurisdiction by avaiIabiUty of an altemative reiuedy is a rule of discretion arid not one ofthe coinpulsion, The entire case rests on the iiifraction ofconstitutional protection prescribed uiider Article 311(2) ofthe Constitution of India aiid noii-application of fhe statutory provisions, as such the altemative reniedy inay not be a proper tbruin, at ttus stage. In view of the tbregoiag, fhe impugned order dated 4.5.2002 (Aanexure P/ 1) is bad aiid is quashed. On the question of back wages, no fouadation has been laid to estabUsh tbe fact that whether the petitioner was gamfuUy employed elsewhere or not durmg this period. Even otherwise, keepiog tn view that the teniiiaaUon order has been vitiated not on inerit but on account of non-coinpliance of the statutoiy provisions betbre terminatuig the services of the petitioner, 30% back wages would be suf&cient in tbe interest ofjustice. Accordingly, the writ petition is allowed. No order asto costs. However, ftie respondents/authorities, on their request are granted Uberty to take fresh steps iu accordance wittt Rule 7 of the Rules, 1999, if so advised. ThdcuT Sd/- Satish K. Agnihotri Judge