HIGH COURT OF CHHATTISGARH : B!LASPUR Writ Petition No. 31 14 of 2005 (Writ Petition under Article 226/227 of the Constitution of indie) (SB: Hon’ble Shri Satish K. Agnihotri J.) Present: Mr. V.K. Pandey, Advocate for the petitioner. Mr. Pankaj Shrivastava, Panel Lawyer for respondente No 1 to 3/State. Mr. Raghavendra Verma, Advocate for the respondent No.4. Mr. D: Shrivastava, Advocate for the respondent No.5. Mr. Manoj Paranjpe, Advocate for the respondent No.6. oRoER (Passed on this 27*“ day of March, 2009) 1. The present petition, tiled under Article 2261227 of the Constitution of lndia impugns the order dated 3-1 1-2004 (Annexure P/2), passed by the respondent No.3, as being unconstitutional on the ground that the PETITIONER Partwatial Bhaskar, Son of Prandas, aged about 29 years, ‘wc.’king as a Panchayat Karmi (Secremry), resident of village: Bhawanrtchuwa. Poiice Staticn: Basna, Tehsil Basna, District Mahasamund (CG). Versus RESPONDENTS 1. State of‘Ctihattisgarh through the Secretary, Panchayat & Social Weifare Department, D.K.S. Bhawan, Raipur. 2. The Additional Collector, Mahasamund, Distt. Mahasamund (CG). 3. The Sub Divisional Officer, Seraipali, District Mahasamund (CG). 4. The Chief Executive Officer, Janpad Panchayat,‘ - Basna, Distt. Mahasamundr(CG). 5. Hembai Dhritlahre Panoh, village Panchayat Bhawanrtchunwa, Tehsil Basna, Dish. Mahasamund (CG). 6. The Sarpanch, village Panchayat Bhawanrchunwa, Tehsil Basna, 'Distt. Mahasamund (CG). @ petitioner was not afforded any opportunity of hearing and the order of termination was passed in contravention of the provisions of Ruie 7 of the Chhattisgarh Panchayat Service (Discipline and Appeai) Ruies, 1999 (for short ‘the Rules, 1999’). Learned counsel appearing for the petitioner submits that the petitioner was, appointed as Panohayat Karmi 'of Gram Panchayat Bhawanrohunwa. In the meeting of Gram Sabha, held on 8-11-2004 (Annexure Pl3), 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 3-11—2004 (Annexure P/2), passed by the respondent No.3, in compliance of the resolution of the Gram Sabha dated 8-1 1-2004 (Annexure P/3), the petitioner has been removed from the post of Panchayat Karmi. Learned counsel appearing for the petitioner submits that Rule 7 otthe Rules, 1999 provides for procedure before terminating service of a member of Panchayat. ln the instant case, the said provisions were not followed, no definite charges were framed and the petitioner was not sewed with the articles 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 sated that the termination was passed on the basis of the resolution of the Gram Sabha, held on 8.1 1‘2004. The same could not have been passed without following the provisions of law, prescribed in Rule 7 of the Rules 1999. ln support of his submissions learned counsel cited a decision of this Court in the matter of Dhaluram Kosaria Vs. State of 6.6. &’ @ others‘, which was relied on in Anjordas Vs. State of Chhattisgarh 8; othersz . Learned counsel appearing for the lespondents No. 1, 2 & 3/ State faitly admits that the provisions of Ruie 7 of the Rules, 1999 were not complied with before 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 availability of the alternative i remedy. After having heard learned counsei appearing for the parties and having perused the pleadings and records appended thereto, it is evidentthat. 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 amouns to infraction of not only the provisions of Ruie 7 of the Rules, 1999 but the provisions of Article 311(2) of the Constitution of lndia 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. i {2006(2) c.G.L.J. 186} 2 {2008 (111) MPJR-CG 110}- @ .’ H/ The entire case resis on the infraction of constitutional protection ptescribed under Article 311(2) of the Constitution of india and non- application of the statutory provisions, as such the altemative remedy may not be a proper forum, at this stage. 7. In view of the foregoing, the impugned order dated 3-1 1-2004 (Annexure Fl2) is bad and is quashed. 8. On the question of back wages, no foundation has been iaid to estabiish the fact that whether the petitioner was gainfuiiy 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 sufficient in the interest of justice. 9. Accordingly, the writ petition is allowed. No order asto c036. 10. 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. Sd/- Satish K. Agnihotri Judge