Aé LQ\ Q iN THE HON’BLE CHHATTISGARH HIGH COURT AT BILASPUR WPNo 4‘58 /200M§,B.) / Laxman SethiaAged 27 years, S/O Sri Peelu ram Sethia, Village P.S & Tah. Dhobiguda, — Jagdalpur, «’M' Distt. Bastar (Chhattisgérh) PET(TIONER VERSUS RESPONDENTS , ‘l_..o \%§’\jk 0! Municipal Corporation Jagdalpur &A{0Mbmr . wé‘xy’ Through : Commissionegrlum‘cigal v ' / Jagdalpur District Bastar(CG) State of Chhattisgarh, Through The Secretary, Na iya Niyojan Avam Vikas vernment of Chhattisgarh, D.K.S. Bhawan, Mantralay, Raipur (CG) WRIT PETmON UNDER ARnCLEs 22 /227 OF THE a’ CONsnTUTION OF lNDrA FOR ISSUANCE OF A WRrT, ORDER/ORDERS, D‘RECTION/DIRECT!ONS lN THE NATURE OF MANDAMUS OR CERTIORARI PROHlBlTlON ETC. / / \afag“ o ” HIGH CGURT OF CHHATT15GARH : BILASPUR SINGLE BENCH HON BLE SHRI NIANINDRA MOHAN SHRIVASTAVA J. wm Petition No.458/2004 g: ETITIONER: Laxman Sethia Versus RESPONDENTS: Municipal Corporation, Jagdaipur Through Commissioner and Another 7, K PO$T FOR DRDER ON [8' AUGUST 2016 w,/— // , gaal—n Sht'wasiaVa MamndiaN‘ ”age ”a g. ”4 / / HIGH COURT OF CHHATTISGARH : BILASPUR Sinqle Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. Writ Petiticn No.458l2004 PETITIONER: Laxman Sethia Versus RESPONDENTS: Municipal Corporation, Jagdalpur Through Commissioner and Another Present: Shri Avinash K. Mishra, counsel for the petitioner. Shri Sudeep Agrawai, counsel for respondent No.1. Shri Vinod Tekam. Panel lawyer for the State/respondent No.2. O R D E R ”i (Passed on [giaay of August, 201 O) By this petition. the petitioner has assailed legality and validity of order dated 19~O2~2002 (Annexure P-1), by which, services of the petitioner have been terminated . (2) Case of the petitioner is that he was initially appointed as Peon vide order dated 31-12—1994 (Annexure P-2) on compassionate basis in View of the illness of his father. On 09-01-2002, a notice (Annexure P-3) was served upon the petitioner requiring him to submit his reply. The petitioner submitted his reply on 10-01-2002. Thereafter, the impugned order dated 19-02-2002 was passed by the Chief Municipal Omcer, Nagar Palika Parishad, Jagdalpur dismissing the petitioner from service. The petitioner then preferred Revision Petition before the Director, Urban Administration, Chhattisgarh on 21-02-2002 and also submitted a Mercy Petition on 26-02-2002 before the Chief Municipal Officer, Napar Palika Parishad, Jagdalpur. Vide memo dated 03-06-2003 (Annexure P-8), Deputy K)‘ Director, Urban Administration and Development, Raipur infarmed the Commissioner of Municipal Corporation. Jagdaipur with a copy endorsed to the petitioner that the petitioner could prefer an appeal before the Collector, Bastar. Thereafter, the petitioner submitted an appeal before the Collector on 13—08- 2093 purporting to be under Section .56 of Madhya Pradesh Nagar Palika ruitment and Conditions or Service) Rules, 1968. The petitioner also submitted an application for condonation of delay under Section 5 of the Limitation Act. Vide order dated 01-09-2003 (Annexure P-10), the Collector dismissed the appeal of the petitioner on the ground that the same is barred by limitation and the petitioner failed to submit cogent facts or documents for coridonation of delay. (3) Submission of learned counsel for the petitioner is that the petitioner wa a regular and permanent employee working as a Peon in the sen/ice of the iunisipality. lt is argued that the petitioner was dismissed from service on certain allegations of misconduct, therefore, the respondent authority namely Chief Municipal Ofdcer or the Municipality ought to have held regular departmental enquiry by issuing charge sheet before imposing extreme penalty of dismissal from service. lt is also argued that the Collector acted perversely and grossly erred in dismissing the appeal of the petitioner only on the ground of delay, adopted hyper technical approachswithout considering the merits of the appeal. Learned counsel for the petitioner further submitted that the petitioner had just and valid ground justifying his absence, and therefote, thesrespondents ought to have considered the justification submitted by the petitioner before imposing drastic and extreme penalty of dismissal from service. It is also submitted that taking into consideration the nature and gravity of misconduct alleged, imposition of extreme penalty of dismissai from service is highly disproportionate. lt is aiso m ..‘.‘.. I s argued that the termination order has not been issued by the appointing authority of the petitioner. (4) Per contra, submission of teamed counsel for the respondent No.1 is that though the petitioner has raised the ground assailing legality and validity of the rder of the Collector, no specific relief for quashing of the order passed by the _"’Qollector has been prayed for. The only relief sought by the petitioner in the petition is for quashing order dated 19-02-2002 (Annexure P-1). Learned counsel for respondent No.1 submits that as the petitioner has not made specific prayer for quashing of the order passed in appeal by the Collector, the petition itself is not maintainable and liable to be dismissed. Learned counsel for respondent No.1 further submitted that the petitioner was given compassionate appointment in the year 1994 and his service record from 1998 onwards would show that petitioner is habitual of remaining absent from duties. lt is also submitted that ‘i' ince 1998, the petitioner was given warning and action was proposed on account of his unauthorized absence, intoxication and other laxity in performance of duty, but every time, the petitioner invoked indulgence and sympathy of the . authority and in spite of sympathetic view and lenient attitude of the concerned respondent authority, the petitioner did not improve upon his work and made himself liable for initiation of departmental action leading to issuance of show cause notice dated O9—O1-2002,(Annexure R-13). The petitioner submitted his reply on 10—01-2002 which was not found satisfactory, therefore, impugned order dated 19-02-2002 was passed in accordance with la‘wasilt is also submitted by learned counsel for the respondents that though the impugned order of dismissal from service was passed on 19-02-2002. this petition has been filed;a‘fter two years, for which. there is no satisfactory explanation, and therefore, the petition is liable to be dismissed on the ground of delay. Respondent No.2/State has t o * adopted the return of respondent. No.1 stating that the dispute is between the Corporation and the petitioner. (5) In so far as objection with regard to detay is concerned, it is found that after the imposition of penaity of dismissai vide order dated 19-02-2002, the oetitioner preferred revision petition before the Director on 21-02—2002 foiiowed by Mercy Petition on 26-02-2002. The petitioner then approached the Human Righte Commission and vide memo dated 03—06-2003 (Annexure P-8), it was informed that the petitioner couid prefer an appeai. Thereafter, the petitioner preferred an appeal before the Coiiector, Bastar, which was dismissed as barred a by limitation vide order dated 01—09-2003. Therefore. it cannot be said that the petition suffers from delay and lashes as to warrant dismissal. The aforesaid objection of respondent No.1 is therefore rejected. (6) l shall now consider other objectionof the respondent No1 that the petition is liable to be dismissed on the ground that the petitioner has not challenged the order dated 01-09-2003 (Annexure P—t 0) passed by the Colie'ctor and in the relief clause, no specific prayer for quashing of the order passed by the Collector has been made nor Collector has been impieaded as a party/respondent in the present petition. A'perusal of the entire petition and specific grounds raised therein would show that the petitioner has approached this Court aggrieved not only by the order of dismissal dated 19-02-2002 (Annexure P 1) but also by the order dated Ot 09-2003 paseed by the Collector A perusal of the grounds 6 2 & 6 3 of the petition would show that the petitioner seeks to assail validity of the order passed in appeal by the Collector, Bastar. True it is that while making specific prayer under Clause 7.2 of the‘v‘writ petition for issuance of writ, quashing of order of dismissal dated 19-02-2002 (Annexure o P-1), no speciftc prayer of quashing the order of the Coffector has been made. in ClauSe 7.4 of the relief clause. the petitioner has prayed for issuanCe of ahy other writ/order/direction as deemed proper in the facts and circumstances of the case, This Court is not inclined to dismiss the petition only on the technical ground that in the relief clause, there is no mention of order dated 01-09-2003 passed by the lleotor. (7) Under Rule 58 of the Madhya Pradesh Municipal Empioyees Recruitment and Conditions of, Service Rules, 1968 (In short “the Rules of 1968"), the Collector had power to condone the delay on s the statutory scheme of the Rules of 1968, it is revealed that against the order passed by the Collector, as second appeal lies to the Commissioner under subs rule(’l) in the case of an empioyee drawing Rs.50/- ufticient cause being shown. From exists an efhcacious and alternative remedy of appeal/revision under statute. Though, this petition has remained pending since 2004, it was admitted on‘ 26- % case, correciness and vaiidity of order passed by the CoHector as a statutory appellate authority, cannot be examined without Canector being impleadec? as a party in the present petition under Article 226/227 of the Censtitutien of lnclia in View of the law laid down by the Supreme Court in the case 0f lidit Narairi Singh Malpaharia vs. Add}. Member, Board of Revenue, 8ihar, AIR 1963 $0 u (8) ln View of the aforesaid discussion, no relief can be granted to the petitioner. However, liberty is reserved to the petitioner to prefer an appeal before the second appellate authority i.e. Commissioner in accordance with the provisions contained in the Rules of 1968. ln case, the petitioner prefers a second appeal before the Commissioner along with an appiication for condonation of delay in filing appeal, the Commissioner, while considering the application for condonation of delay in tiling appeal, shall take into conSideration e pendency of the case before this Court. r. (9) With the aforesaid liberty, the petition is dismissed. /// /// Sél’ sm'N 35‘3V3 N\ Madwd‘a Seége ///" K “a“ Tumal'le w a