Wk Q> i I I QIN THE HIGH COURT OF CHHATTISGARH AT BI/LSPUR Writ getitionv S No 53gz2010: ‘ ‘ii i $ I , , I @m PETITIONER: i / Gajju‘‘ggl Sahu, S/o hri Sukalu Ram Sahu t l Age—52 years,~R/'o Tumga'on, P.O. ’I‘umgaon, ,Tah and Di'stt—Mahasamund (CG).~ § ? K Versus l REsPéNliENTs ' yu) State ,of Chhattisgaréh Through V Secretaf‘y Water resiources Deptt D.K.S.' Bhawan, Raipur. ‘/ 2] Chief , Engineer, ‘Mahanadi Godawari V Kachhar Water Res‘fources' Deptt. , Raipur (CG r WRIT FETIh‘ION UNDER ARTICLES 226 OF THEV éONSTITUTION OF IND‘IA.‘ U AW, ITIIGH COURT OF CHHATTISGARH AT BILASPUR 1 (Hon. Mr. Justice Pritinker Diwaker) x t i I Writ Petition (S) No. 554 of 201 0 PETITIQNER Gajju Ram Slahu ' i l l i RESPONDENTS State of Chhfattisgarh and another W; VERSUS l i Shrl Ashok Das Valshnav counselfor the petitioner - Shrl N Naha Roy P L forthe respondents/State WRIT PETITION UNDER ARTICLE 226/227 OF THE I CONSTITUTION OF INDIA ORDER (02112011) ‘ ' ' . I I Challenge In the present writ petition Is to the order dated 23 102009 (Annexure P 4) passed by respondent No2 termlnatlng the * I serwces of the petltloner after fndlng him unsuitable to hold the post in ' ’ View of clause 8 of the regularization order dated 13 8 2008 (Annexure P- 2). ‘ 2. Facts of the case in brief are that from 31 12 1985 the petitioner was ‘ I working as daily rated labourer and pursuant to the Circular dated 5 3 2008 f I ' ‘l issued by the State Government (Annexure P-1) his serwces were ‘ regularized Vide order dated 13 8 2008 (Annexure P 2) As per clause 8 of the regularization order the petitioner was requrred to undergo character , l verifcation by the police. The said clause also mentions that if any adverse remark is found byNthe police in the character verification, services of the incumbent would be terminated without giving any opportunity of hearing or conducting departmental enquiry against him. 3, According to the case of the respondents, after issuance of regularization order when character verification of the petitioner was made by the police it was found that crime No. 21/1980 was registered against him under sectfons 147 148 149 24 326 and 452 IPC and Vide ‘ Judgment dated 25 8 1987 he was conVIcted under Section 323 IPC and I ‘ . 4 " V imposed amne of Rs 100 In default of payment of fine to undergo slmpe Imprisonment for one month Accordmg to the respondents In View of clause 8 of the regulanzahon order sermces of the petltloner are liable to be termtngted and that way the order Impugned dated 23102009 (Annexureg P-4) ls fully Justlfled. 4. Counsel for the petitioner submlts that the pettttoner had not _ suppressed any fact while fllllng In the attestation form (Annexure P 9) and ‘ ¥ In column 12 thereof he has categorically stated about his convnctlon under Section 323 PC and resultant Imposmon of fine of Rs 100 Counsel for the petitioner referred to the Judgment of the tnal Court dated 25 8 1987 (Annexure P 7) by which the petitioner has been conVIcted under Sectlon 323 IPC He submlts that conVIctlon of the petltloner does not fall w1thm the purVIew of moral turpltude rendering hImJunsuItable for the government serVIce and therefore his serv1ces ought not to have been terminated, According to the counsel for the petltloner the petitioner was a confrmed employee of the State Government and therefore by no stretch of ‘imagination his serVIces could be terminated Without gIVIng any notice to him. 51' VJ character verification by the police and It was clearly mentioned In the said ’ clause that In case any adverse remark was found by the pollce his serwces would be liable to be terminated He submits that It Is not In - -dlspute that the petitioner was conVIcted under Section 323 IPC and therefore gIVIng notice or conducting departmental enqUIry against him would have been a futlle exerCIse _ : 8. Heard counsel for therkparties-and perusedthe documents available ' 1 y ’ Von record ‘ ' v '7 r , r t \ 7. From the documents available on record It Is apparent that the petitioner was a regular employee of Water Resources Department working as labourer From the serVIce book of the petitioner (Annexure P- a r§ On the other hand counsel for the respondents/State submits that the respondents were not under compuISIon to conduct any departmental enqUIry because as per clause 8 of the regularization order dated 13 8 2008 serVIces of the petitioner were regularized In antICIpatIon of his l t .—-Z_ I ; i i { t 8) it is akpareint that apart from regular increments he was granted benet of 6‘“ paygcotnmission € 1 also after his regularization. l Thus for all practical purposes, ithe petitioner was confirmed employee of the Government. It is now a settled legal position that services of a confirmed employee cannot be terminated without giving notice or conducting departmental enquiry against him even if he had suppressed relevant information in column 12 of the attestagtion form. In the case of Kamal Nayan Mishra v. State of v l adhya Pradesh and others reported in (201?) 2 SCC 169 it has been rd the i nder: M he by Aoex Court as u . ‘h ls reu te ppellat to eify tha e nforion iv by‘hi said form ws cre a ha if any ion fn l r inoplte i any aerl resec t appoin toty n mtia pt, he ting auhri may tmat fm he ihout g tice erine him ro t service wt givin no or sng cse. 1 Acontmed oermt srv is te hder Aicle 11 th Constituion n te othe hand a 'pobioe des nt have nay subsante rht o hod he post, and i nt enttled to he pteo un icle 31 unt fr imet 2. he lard ce for the ondes dew our aton to te ins the eps in he pree t attstatn or and th uertaking contane in he veon cc y e emploee at e e f the ast f, wh ts hm on nt tteatn orm staed tat a empy old be trminaed who noce, if e furnhe nmo, t eloe s etoppe from jen termnation . he d cntentio my meit apance 5. 'rr gvnen eant h ol of a civil o itl th nits h ed provided y pst ented to e benef of te safguars b rt 3 of e t. O h r , ratnr o o tiv ig t l t s o i t roctin der Art 1. A pobatinrs service cn be dispend w dung the roe’ s a se ith ri erdof bai o the ‘d of t probati rio, if pio proton, r at en he on ped hsfsvice i oud o be unsatct or f e is fou t ier s fn t isfaory i h nd o be it o appontn. 0 T ene ounsl respnt r tenti h nstructio to mloyee t ambl o the eio fm e nd id t rificati ertifiate b th y th nd o tteation orm ich pu i oice hat a fse iomaio old sul in ernaton of h t ny al nfrtn cu ret tmii is vi ito iry. I is de t a h serce whut enqu t contend hat s te astio f t h n loee cu et itut ti h iss false iforatin he mpye i sd obctio to i without notice. T sai on a r ccet in the case of a probationer, but not in the case of a confirmed government servant. 21. No term in the attestation ferm, norany consent given by a government servant, can .take away the ._ constitutional safeguard provided to a government servant under Article 311 of the Constitution. 22.’ A seven—Judge Bench of this Court held in Moti ‘ Ram ‘Deka v. North East Frontier Railway, AIR 1964 SC $i fi 4 lie form ao qired h an crt t th ifmat gen m in the a crct nd tt nfrmatio was oud to be fase o cme howi au \ ,q- 00‘ (1964) 5 SCR 683. as follows while negativing cgont:ention that a person who enters service by executing a ciont'ract containing a rule contrary to Article 31 1, with open egyeSE,“ cannot be permitted to challenge the validity of the sgaidg’rule or the contract (AIR p.61 1 ,‘ parjas 31-32) 6 a ‘ i i ‘ “31. In our opinion, this approach may be relevant in_ dealing with purely commercial cases governed by rules of contract; 'but it is wholly inappropriate in I dealing with a case where the contract or ‘ r the Rule is alleged to violate a ‘ ‘ constitutional guarantee‘afforded by Article 311V(2);.;.. , ' 32. Let us then test thisiargument by referenceto the provisions of Article 311 (1), Article 311 (1)1provides that no perso to whom the 'saidarticle applies shall be dismissed or removed by an authoriw subordinate to that by which he was appointed: Can it be suggested that the Railway Administration can, enter into a contract With its employees by which authority , to dismiss or ‘ remove the employees can be delegated to persons other than those‘contemplated by Article 311(1)? The answer to this question is obviously in the negative, and the same answer must be given to the contention that as a result of the contract which embodies J the impugned Rules, the termination of the railway servant’s services would not attract the prOvisions of Article 311 (2) though, in law, it amounts to removal. '24. The termination of the appellant without an enquiry or hearing was illegal and valid. In the normal icourse, we would have set aside the termination an édirected reinstatement with consequential benefits, reserving liberty to the employer to initiate disciplinary proceedings. But the peculiar facts of this case require (us to adopt a slightly different approach to do complete justice between the parties. 25. We have already pointed out that there are clear indications that the appellant was bona fide under the impression that he was required to give the particulars ' sought in Column 12’of the form with reference to the date of his appointment. Further, the entire matter relates to an attestation form given in 1994 and the, appellant has already been out of service for more than seven years on account of the illegal termination from v t ‘ n d ,g‘_ I x l x, \ } 1' se;rvice without an enquiry on 7.3.2002. We are tt12erefore of the view that the interests of justice would be served if the appellant is reinstated with continuity of s;ervice and other consequential benefits, dispensing with any further disciplinary action. The appellant will today. n:ot be entitled to any salary for the § period - 7.3.2002 till 26. We accordingly, allow this appeal, set aside the jude o the ard inle Jge and the Divisio e e rit tition fil th ellat for th ig rt lwe e s te at /. h son r rtd ‘ ista aeant iuity rie an neentia rf ex a fo te perio ..200 til dat". I V of h bove ctl ad lgl ositio this urt s of . onsidr io t the petior beng a nrm eploy t n iew te a faua n ea pn, Co i the ceed opinn tha tine i cofied mee of he Gvmn is services canot be terminate wihou affor im an optuy f earing or codutin epament nqry against im. codil, the ord impuged is et sid Rsond ae dicted to refte peito e m n ut f v wh the onseuentil neit (exce the lar for th eriod from 3..29 ill cqa befs pt say e p 21000 t date). 9. Peiti s th alloWed. ton i us Acrngy er n s ae. epents r re einstath tiner trating hi i continiy o serice it all gmnts f lene Sg ud n Bnch. Th w pe ed by e appn bee e Hh Cou is alod, stting aide h terminion ' dated 7/32002 Te repdents ae diece to rente the ppll with contn of seVc d other cosqul elies (cept slary r h d 732 l e) 8 oernet, h n d tt ding h pornit o h ncg drtal eui h