IN THE HIGH COURT OF CHHA’ITISGARH : BILASPUR Wn't P6u‘tion (S) No. 2919 of 200$ WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA (SB: Hon’ble Shri Satish K, Agnihotm' J.) Shxi K. N. Nandc, Advocate for the peti‘ioner. Shri P. K. Bhaduxi, Panel Lawyer for the rospondents No. 1, 2 and 3/ State. Shri Sanjay Patel, Advocate for the respondent No.4. ORDER (Passed on this 14th Day ofAugust, 2008) The present petition, tiled under Article 226/227 of The Constitution of India impugns the order dated 14.5.2008 (Annexure P] 1) passed by the respondent No.4 and the order dated 15.52008 (Annexure P] 5), passed by the respondent No.3, as being unconstitutional on the ground that the petitioner was not aiforded any opportunity of hearing and 'the order of termin ation was passed in contravention ofthe provisions of Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short ‘the Rules. 1999’). Petitioner Dayaram Lahrey, son of Shn' ’I‘egnuram Lahrey, aged about 49 years, Secretary, Gram Panchavat Bataupah (A) Janpad Panchayat Sai‘angarh, District Raigarh, Chhattisgarh. Versus Respondents 1.) State of Chhattisgarh, Through Secretary, Panchayat and Social Welfare Departinent, D.K.S. Bhawan, Raipur, Chhattisgarh. 2. Collector, Raigarh, District Raigarh, Chhattisgarh. 3. Deputy Director, Panchayat and Social Weifare, Raigarh, District Raigarh Chhattisgarh. 4. Sarpanch, Gram Panchayat Bataupali, (A) Janpad Panchay‘at Sarangarh, District Raigarh, Chhattisgarh. ‘\ :_/L‘ The indisputable facts, in nutshell, are that the patitioner was appointed aS Panchayat Kanni in Gram Panchayat, Batupali (A), Janpad Panchayat Sarangarh, District — Raigarh, by order dated 10.1L1995, passed by the Salparich, Gram Panchayat Bataupali (A), Block Sarangarh, District Raigarh and he was given the charge of the post of Panchayat Secretary vide order dated 19.12.1995, passed by the Chief Executive Officer, Janpad Panchayat, Sarahgarh (Annexure Pf 2). By the impugned order dated 14.5.2008 (Annexure P/ l), passed by the Salpanch, Village Panchayat Bataupali (A) the petitioner has been removed from the post of Panchayat Karmi. 1t is stated in the order that on the complaints ofthe villagers, a Show cause notice was given to the petitioner, to which the pe titioner has not replied either orally or in writing, which established that the complaint made against the petitioner are true and he is guilty of the Charge. On this basis, the resolution No. 1 in regard to removal of the petitioner from the post of Panchayat Karmi 'was paesed on 12.5.2008, unanimously, which was approved by the Gram Sabha in its meeting dated 14.5.2008. Shri K. N. Nande, learned counsel appealing for the petitioner submits mat Rule ’7 of the Rules, 1999 provides for procedure before terminating service of a member of Panchayat. In the instant case, the said provisions were not followed, no dehnite charges were framed and the petitioner was not served 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. The termination was passed on the basis of the alleged complaint of the vmagsrs, thus thr; order is stigmatic. Tim same could not have been passed wiu‘mut following the provisions of law, prescribed 1'11 Rule 7 of the Rules 1999. In support of his submissions learned counsel cited a decision ofmis Court in the matter of Dhaluram Kosaria Vs. State of (LG. & others {2006(2) C.G. LA], 186}. 5. Learned counse appealing for the petitioner further submit that l s the members of the Gr Panchayat have given certijicate dated am 1.52008 (Annexure P/4) that no meeting was held during the 8 period 28.4.2008 to 17.5.2008. Thereafter, by order dated 15.5.2008 (Annexure P/5) e additional charge of the post of th Panchayat Secretary was given to Smi Jai R angde, am J Assistant Village Panchayat Oiiicer. 6. Shri Sanay Patel, learned counsel appearing or the respondent j f o.4 submits that there were number of compls against the N aint p bib petitioner, such as, the etitioner has taken re for making ration card and distributed pension after deducting certain amount from the pensioners. Therefore, a show cause notice was issued to the petitioner on 9.5.2008 (Annexure R4-—1) but the / petitioner declined to receive the notice. Accordingly, a panchnama was prepared by the village Kotwar and the notice was pasted at the residence of the petitioner, in presence of villagers. He further submits that the show cause notice contained the definite charges. 7. Shi‘i P. K. Bhaduri, learned counsel appearing for the respondents No. 1 to 3/ State submits that there is availability of alternative remedy and as such this petition may be dismissed on the ground of availability of the alternative remedy. Pa/ After having heard learned couusel appean'ng for time parties and having perused the pleadings and records appended thereto, it is evident that the impugned termination order was passed Without following the proper procedure of law, as. prescribed under Rule 7 of the Rules, 1999. The termination of the petitioner was not a termination simpliciter, but on the basis of the alleged complaints made by the villagers. The procedure for holding an enquiry iS prescribed under Rule 7 of the Rules, 1999 for impoeition 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 ainounts to infraction of not only the provisions of Rule 7 of the Rules, 1999 but the provisions of Article 311(2) of the Constitution of India also. The order is in fact penal in‘natnre, having civil consequences and as such the elaborate provisions of Rule 7 of the Rules 1999 were applicable in the case of the petitioner before terminau‘ng his services. (Se the case of Dhaluram Kosaria (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. The entire ease rests on the infraction ofconstitutional protection prescribed under Amide 31 1(2) of the Constitution of India and non—application of the statutory provisions, as such die alternative remedy may not be a proper forum, at this stage. ln View of the foregoing, the impugned order dated 14.5.2008 (Annexure P/ 1) is bad and is quashed. \ 11. back wages would be sutEicient 1'11 the intercst ofjustice. Accordingly, the writ petition is allowad. No ordsr asto costs. 13. However, the respondsnts/authou‘ties, on their request, are granted liberty to take fresh stsps in accordance with Rule 7 of the Rules, 1999, ifso advised, Thalcur SdL Satish K. Agnihotri V .Judge