/': 1 . < HIGH COURT OF CHHAmSGARH : BILASPUR Wnt Petition No. 2319 of 2006 Petitioner Baisakhu Rain Yadav, S/o Shri Neela Rain Yadav, aged about 34 years, R/o Kotwarpara, ViUage Murkuchi, Block Bastar, District Bastar, Chliattisgarh. Versus Respondents 1. State of Chhattisgarh, Through ths Secretary, Department of Panchayat and Rural Devclopinent, Govermnent of Chhattisgarh, D.K.S. Bhawan, Mantralaya, Raipur (C.C}.). The Deputy Director, Department of Panchayat and Rural Developruent, Jagdalpur, District Bastar (C.G.) The Chief Executi.ve Officer, Janpad Paachayat Bastar, District Bastar (C.G.) Gram Paachayat Murkuchi, Ttarough Sarpanch, ViUage Murkuchi, Block Bastar, District Bastar, C.G. 2. 3. 4. WRIT PETITION UNDER ARTICLE 226/227 OP THE CONSTITUTION OF INDIA (SB: Hon'ble Shri Satish K. AgnihotriJ.) Shri Alok Dewangan, Advocate for the petitioner, Ms Suxiita Jaia, Paael Lawyer for fhe respondents No. 1 and 2. Shri Sushil Dubey, Advocate forthe respondent No. 3. Noae for the respondent No. 4. 2. ORDER (Passed on fhis 22nd Day ofAprii, 2009) The present petition, filed under Artfcle 226/227 of fhe Constitution of Iiidia impugns the ordcr dated 10.3.200S (Armexure P/1), passed by fhe respondent No. 2, as being flfcgal aad bad <m the ground that the petitioner was not afforded any opportunily of heariug and fhe order of termiaatton was passed in contraveution of the provisions of Rule 7 of the Cliliattisgarh Panchayat Service (Discipline aad Appeal) Rules, 1999 (for short 'the Rules, 1999'). Learaed counsel appearing for the petitioner subinlts fhat fhe petitioner was appointed as Secretaiy (Panchayat Kartiu) of Gram ~3 Learaed couasel appearmg for the respondents No. 1 and 2/ State faidy adnuts that the provisions of Riile 7 of the Rules, 1999 were not compUed wifh before passiag fhe uupugned order. Howevcr, she submits that there is availability of altemative reniedy and as such this petition may be disnussed on fhe ground of availability offhe altemative reiaedy. Lcaraed couasel appearing for tbe respondeut No.3 opposes fhie petition on fhe giound tfaat haviag regard to the illegalities and irregularities conunltted by the petitioner, the petitioner does not deserve any sympafhy. Having heard leamed counsel appearing for the parties aad having perused the pleadiags aad document appended thereto, it is evident that the impugaed temimatiori order was passed wifhout followiag fhe proper procedure of law, as prescribed under Rute 7 of the Riiles, 1999. The procedure for holdiag an enquiry is prescribed under Rule 7 of the Rides, 1999 for imposition of major penalty. Hence, fhe termination is bad and vitiated on the grouad of non-conipliance of fbe statutoiy provisions aad denial of fhe principles of iiatural justice. It amounts to iofiaction of not only fhe 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 nature, having civil consequences aad as such couipliance of the elaborate provisions, as ensbrined ia Rule 7 of ttie Rules 1999 is mandatoiy ia the present case. (See the case of Dhaluram Kosaria and Anjordas (supra) } 8. 10, 11. Thalau -^- With regard to thc availabfllty offhe altemative remedy, it is weU setfled that fbe rule of exclusion of writ jiuisdictton by availabiUty of an alteruative reiaedy is a rule of discretion and not one ofthe coiapulsion. The entire case rests on the iufraction ofcbnstitutional protection prescribed under Articfe 3ll(2) offhe Coastitution of India aad non-appUcation of the statutoiy provisions, as such the altenaative reiaedy may not be a proper fonun, atthis stage. lu view of the foregoiag, fhe impugned order dated 10.3.2005 (Atuiexure P/1) is bad and is quashed. On fbe question of back wages, no foimdation has been laid to estabUsh the fact tbat wbether the petitioner was gaiufulty employed elsewhere or not durmg this period. Even otherwisc, laepic^ ia view fhat the termination order has been vitiated not on xaerit but on account of non-conipliance of the statutoiy provisions beforc termiaating thc services of the petitioner, 30% back wages would be sufficient ia tbe iatercst ofjustice. Accordingly, fhe writ petition is aUowed. No order asto costs. However, fhe respondents/aufhorities, on their request are granted liberty to take Q-esh steps ia accordaace with Rute 7 of fhe Rules, 1999, if so advised. Sd/- Satish K. Agnihotri Judge +