HIGH COURT OF CHHA’I‘TLSGARH AT BILASPUR )‘W-m {q}? PETITIONER My: RESPONDENTS Present: Raj Kumar Nirmalk‘ar aged about 36 years, S/o Dhirajeeram Nirma}kar Rio village mid Post Kosmarraa, Tahsil Kurud, District Dhamtari. VERSUS . The State of Chhattisgarh, Through Secretary, Panchayai am} Rurai Depatmem, D.K.S. Bhawan, Raipur. . The Deputy Director, 'Panchayat and Social Welfare. Dhamtari. . Gram Panchayat, through its Sarpanch Gram Panchayat Kosmarra, Tahsil Kumd, Dim. Dhamtari. WRIT PETITION UNDER ARTICLE 226 AND ’227 OF THE CONSTY ‘UTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Shri Parag Kotecha, Advocate for thevpetitioner. Ms. Sunita Jain, Panel Lawyer for the State/respondents 1 to 3. Shri Sum! Sahu, Advocaie for the responderst No. WRIT PETITION (S) No. 3494 of2008 L . Sub Divisionai OKicer, Kurud, Dhamtari. ' (Passed on 15m day of April, 2009) ORAL ORDER 1\A~ (4. Challenge in this petition is to the order dated 07.09.2005 (Annexur P/5) whereby the Gram Panchayat i.e. respondent No. 4, by its resolution dated 17. 10.2005 (Annexure PH), has removed the petitioner hom the post of Panchayat Karmi. Being aggrieved, an appeal was preferred before the respondent No. 3. The respondent No. ‘3/Sub Divisional Oificer, by order dated 26.03.2008 (Annexure P/8) dismissed the appeal on the ground that he has no jurisdiction to entertain the appeal. The said order is also impugied herein. The Deputy Director, Panchayat & Social Welfare, District Dhamtari, without holding proper enquiry as contemplated under Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short ‘the Rules, 1999’) recorded the finding that the petitioner does not deserve to continue on the post of Secretary. Accordingly, the petitioner was removed h‘om services on 07.09.2005. e Leamed counse appearing for the petitioner submits hat the issue asto whether a Panchayax Karmi/Panchayat Secretary can be removed 1i‘om services without holding proper enquiry as conteplated under provisions of Rule 7 of the Rules, 1999; came up or consideration before this Court inDhalum Kosaria v. State ofC.G & Others”. It was subsequently followed in several cases. This order attaid finality as he same has not been challenged in any other foru. A Divis< Bench of this Court in Writ Petition No. 1656 of 2004 (Roopla Nayak v. The State of Chhattisgarh & Others) has held that removal of a Secretary from the post of Gram Panchayat initially ppointed as Panchayat Karmi would be governed by the provisions of the Rules, 1999. Withdrawal ofchare ofthe post of Secretary from the petitioner, being Panchayat Karmi, tantamounts to reductio in rank and since reduction in rank is a major penalty in terms of Rule 5(b)(iv) of t d s 1 ’Learned counsel appearig for respondent No. 4, without making any submission on the prescription of statutory requirement, submits that admittedly, Rule 7 of the Rules, 1999 has to be followed before terminating a Panchayat Karim/Secretary. However, in the facts of the case, there is an alternative statutory remedy available which ought to have been availed before coming to this Court. When the notices were issued, this objection was not taken. Even otherwise, having regard to the facts situation ofthe case when this very issue has been decided and there. is no dispute that Rule 7 ofthe Rules, 1999 has not been complied, it is not necessary to dismiss the petition on the ground ofavailability ofaltemative remedy. The entire case rests on the inhaction of constitutional protection preseribed under Article 311(2) of the Constitution of India and non-application of statutory provisions, and as such, the altemative remedy may not be a proper forum. (See - Harbanslal Sahnia and another v. Indian Oil Corporation t m . i>i l , a g _ n i he Rules, 1999, it cannot be imposed without conducting a regular epartmental enquiry a envisaged under Rule 7 ofthe Rules, 999. ‘ 2006 (2) CGLJ 186 l t m f ra ne n 3 Ltd. & Othersz and Gummukk Singh Hora v. State ofChhattisgarh & Oyherf) It is an admiued case that no enquiry was canducted before passing the impugled order dated 07.09.2005 (Annexure P/S). The impugied action ofthe respondents tantamounts to removal which is a major penalty and the same cannot be imposed without conducting a regular enquiry. In View ofthe foregoing impugned orders dated 0709,2005 (Annexure P/5), resolution dated 17.10.2005 (Annexure P/7) and the order dated 26.03.2008 (Annexure P/8) are quashed. On the question ofback-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 ofthe statutory provisions before terminating the services of the petitioner, 30% back-wages would be sufficient in the interest of justice. Accordingly, the writ petition is allowed. In the facts and circumstances ofthe case, the parties shall bear their own costs. 10. However, the respondent/authorities, on their request are granted liberty to take iresh steps in'accordance with Rule 7 of the Rules, 1999, if so advised. /,,’/J’/‘i f <r t Sd/- “ :Satish K. Agnihmri Judge Amit