1N THE HIGH CGURT OF JUDICA’I‘URE w AT BXLASPUR, C1£ATTISGAR w.P. No. #3“ /2oo<§ i 1) Krishna Aged 3/0. Sri about Kumar Kedar 38 Dewangan, years, Nath Dewangan, ‘ , 1 Gecupation Re$ident District Raipur Of - Tah. Nil, (C.Gg & Post1311aigarh 1 ' 1 PET 1‘3 i0 MR S Manohax: Prasad Chouclhary S/O. Shri ‘i‘ej Ram Choudhary, i Age‘d about 48 years, x I Occupation a Nil, PaG. Kidorimal Nagar, District Raigarh (6.6%.) I" ‘g" i . -\' J .‘ I i ' \15 ix VQ’ X3“ Vs. State of ChhattiSgarh, Through Secretary¢ Panchayat and Social Daygartment, 33.. . Bhawan Raipur (c.G. Director of Panchayat and Socia; We1£are De§artment, Govt» of ChhattiSgarh, RaiEXlC (Cl o) RE SFOKEENES ‘ivf Director, $ocial Welfare‘/{ asyui: Divis1oa§K 3) DiviSional Dy. Panchayat and Deyartment, Bil Bilasrgur (C.G.) \x &g22€¢2_213F comswiggg ‘ INifiIEiE£HEI§¥ ? m10l1§£xy§m§§§ u ~;m‘r~~....,, n ....... f §E 1i - ) , . . ! . z: , / 1x ggg £ W ‘ my”, « (ip DIVISION BENCH.HON.wc&-%$HISHAK,CHIEF JU$TICE, AND HON'BLE m. JUSTICE R.S. GARG. w.P.No. 84 / 2001 x mishna Kurtiar Dewangan and another g PETITIONERS VERSUS RESPONDENTS 3 State of Chhattisgarh and ors. Mr. Ashish Shtivastava for th§‘§etitioners. m°N.K.Shukla.Deputy A.G. fQ‘r the Re§p®mients. Petition is finally heard. O R D E R ( 13.3.2001 ) By this petition under Article 227 o£ the Consti- tution of India the petitioners seek to challenge the'correct-nesswalidity and propriety of the order dated 7.8e1988 passed in transfer application No.’ 3440 / e8.(Krishna Kumar Dewangan and another Vs. state of Chhattisgarh and others) by the state Administrative Triumal. ’\ 2. The case of the petitioner no.1 before the Tribunal was that he was appointed as Part time secretary in Gram Panchayat with efiect‘from - 1" 23.7.79 on a monthly salary of m. 30/--. According to the petitioner no.2 he was appointed as a ‘ part time secretary meJ. 1.439. Petitioner no.2 was appointed on honourary hasi‘s and no remu- neration was paid to him. The petitioners say and- ,submit that the State government too}: a policy decision to absorb all part time secretaries? employed by the Gram Panchayts appointed prior to 7.9.79. in the Government serviaceWW\/ on the postué; .e . , .1 1 \ \ x 2 -- of Gram Sahayak‘. According to the 'petitionei‘s, responéent no.3 the Joint Director.Panchayat and social We1£are department Bilaspur after scrutinising the qua11£ication and e1igib111ty of the petitioners appointed them *as Gram Sahayak. The petitioner Lno.1 was appointed under Annéxure D and the petitioner noez was appointed undet Annexure E on the terms aém) oonditions’ con- tained in the said orders Thereaftermotioe dated 12.1.1988 was issued by‘the District Deputy Director to the petitioner no.1 alleging that he had obtainedrthe appointment by playing fraud and making a bogus claim of having worked as a Part time Secretary'while Vin fact/he did not work on the said post. Annexure F is the copy of said notice dated 12.11.1988. Petitioner no.1 was served on 12.2.86. He was required to submit his reply within four'days but he did not submit any reply as accOrding to him the termination order was MW’wA‘w‘wn amen‘ n im. Petitioner no.1 submits - that his serVices were terminated much before service of the show-cause notice. Similarly, the services of petitioner no.2 were terminated vide order dated 20.1.88 and the said 'terminaition" to him. The was without any notice petitioners sunnitted their representation to r the authorities,mt as they did not receive any favourable reply.they were constrained to file the proper proceedings challenging the terminatior of their services. .3- 3e The respcnclents in thexs: xetmn' £iled be£ore the $tate Administrative Tribunal submitted that the petitionera’ did not avail o£ the alternative oppaxtunity made available to them c£ filkng of an appeal tn the Directarmanchayat and social. Welfaxe Department against the ardezs of termination and as such the petition deserveedismissal. It was also submitted thatigach o£ the petitiene§§;,d.id not was-k '§ with the Penehayat and aieer lodging a ialse and bagus claima obtained the iavourable order in their favour, the authorities were justified in terminating their servicesg It was also contended by the respon- dents that the eertifieates on which strong reliance was @laced by the petitioners were in fact £ake and £iet1tious. The State also submitted that show-cause notiees were issued to the petitioners but they did not submit any reply to the same and the authorities were left with no option except to terminate the ser— vicee a 4‘; The petitioners filed a rejoinder to the petition and submitted that petitioner no.2 did make a representation on 24 .2 988 . For ‘petitiome: no .1 ,, “it was submitted that he also submitted a represent- ation to the DirectorgPancha‘yat,Bhopal, personallyo It was also submitted in' the rejoinder that the certitied and veritied list of part time secretaries whose initial appointments were approved bythe eolle— ctora, were sent to the Directoratea According to them their names were included in the said list atter due verifioation,there£ore,their services weld not he termine ted e oogo4 a4- 5e Atter heazing the pagtiessme learned Tr£bzmal recoxdeé a £inding that, no prcper Qppgrtxmity a£ aubmittgxg reply to me show~cau$e notice was pgaa viéed to the pegitionerse It also held that the petit;oner ncol was saved a£ter the orders o£ termination were passed am: the petLtioner nooz Wm mam S was not Ma The learned Trlbumal. aiter :ecording the finding in £avouz- o£ Ewe petitioners yroeeeded to consides the matter on meritsa After entering into the arena o£ the question of disputed factsp it recorded a finding that it wae not possible £0: either o£ the petitioners to work with the conu- cerneé Gram Panchayet as Gram Sehayak / Sachive 60 A£ter recording the finding on those questions of disputed facts”undisputedlygwithout any inquiry, the'rribunal dislodged the claim ot the petitioners and dismissed their petitiorh Beirag aggrieved by the said oxder the petitioners have come be£ore this Courto 7e Shrl Ashish Shrivastevey learned couneel for the petitioners submits that in View of the rlndings recorded by the tribunal that no proper opportunity was given to the petitioner to make proper represen- tation. the tribuanal was obliged to set-aside the termination order and requir’eg the authorities to make proper inquiry a£ter giving due aed preper opportunity to each ofthe petitionersa He sumits that the Tribunal could'make an inquiry into the disputed facts but simply after appreciating the\ pleadings it could not recxd such findings contrary to the interest of the petitionersa T 8., Dtg$kmklaglearnad Deputy Advocate Genaral on mm othér hand supports the arde: passed by the Tribanal inter alia contending that there is no scope for any interference in this petiw tion in View of the positiwe findings reecrded by the Tribunal that the petitioners could not. work as Panchaya: Sahayaks/ Sachixf” He submits that the Txibunel has given propegr reasonings and has recorded yositive £inding aga$nst the interest o£ the petitione: and as the gindings are based on due appreciation of iactsgthe same can not be interfered wittu 9. We have heard the parties at length and perused the complete recorde 10a It is now not the case ct the State Government that proper opportunity was given to either ot the petitioners to file reply to the show—cause noticet wl’m undisputedly, the respondent noel was served é the show-cause notice after his services were termi~ nated. Similarly the findings recorded in favour o£ petitioner no@2 that no show-cause notice was served upon him and simply the order of termination was received by him,it has to be held that no proper opportunity of nearing was afforded m to either of the petitionersa, ISsuance of showwause notice is not an empty formalitya when an authority issues a show-cause notice or the notice to show:- cause against x the proposed actiona it requires the delinquent / noticee to submit his case before the said authority against the proposed action“ J . ¢6a If an authority éoes not. issue any naticegthen in such ¢ircumstances the ogder passed by such authority can always be termed as an arbitrary or whimsical ardera In a case where the natices are issued to the parties but either the same are net segved ox there is no proo£ that notices wage served upon the neticees then the law says that in absence o£ such prooie it muse yeyneld that there was a9 legal: ex veLid eegvieee Ia the “agesent ease the iinéings 0f the 'rgibunegrgrzat petationer meal was sezved é me netiee t9 shew_ceuse e£ter the termmaticm order was issued and the petitiexmr a9» 2 was at. all net, eerved ci the noteces. In absence o: the notice to showseausege party cauld not have any right to make a repxesentatione When the authea rity does not issue e notice to showaeause againet the pgopoeed aotion,thee such delimguemt/of£ice:/ noticee does not know as to whet case he has to meets In the present case in View of the gindingsgthere is no escape but for recording é £inding,that the petitionete were not given due and legal opportunity to show-cause against the proposed actiono \A’M 11a The Tribunal, in the opinion of this oougt a£ter recording the iindings should have set-aside the order of terminationxit had no jurisdiction to enter into arena of questions of diwuted ractse The Administrative Trihmals Act authorises thé Trimnal to make an inquiry and record the evidence but if the Tribunal does not make an inquiry no: records any evidence and proceeds to decide the matter on the we” pleadings of the'parties and tries toreach a finding relating to fact then such an approach ATV eertainiy A y M / a7... would be contrary ta the vezy provision$ of the ‘ Administrative Tribunals Acta An Authoritya be it" the Court or Tribunal, can not record a finding o£ fact withogt recording the evidence 0;: making 'some inquiry whether regulax or summarya when some body asserts a fact and‘tne other party denies the Q, same” the“ $e dispute azises in the matterg When- eveg a triabie issue arisess the court is require< to make an inquiryae In the present easeyche Tribunal being alive to the situation did not give an opportunity to the petitioner to lead the evidenee in support o£ thei: contention that. they were duly appointed by the respective Gram Panchayets on the pose o£ Gram Sahayaks / Sachivg In the case like present when a list submitted by the Collector shows that the petitioner did work as Panchayat Sahayak / Samiv,then the presumption was in twourof the petitioner-50 The said presumption with: W‘ would only be dislodged or negatived om! if the respondents led some evidehee to satisfy the judi‘ cial discretion of the court / tribunal that sait list was not prepared in accordance with law or was a result of some fraud played by some-body at some levele, 12. The findings recorded by the Tribunal that neither of the petitioners was appointed as a part time Panchayat Sahayak / Sad}iV,can not be t0 approved. The said finding‘deservesiand‘ is accordingly quasheds ”“8 -8§ Ag, the principle of°aud£ alteyanf pagtem' WW been AL viglated in full ané orders of terminatlon wete passea suthout giving proper oppartunity ta me pegitione: to submit. their case befaz‘e the caneerned authogitygwe are of the opinion that ogders of texmio nation must be quashed.‘ The Ogders axe accordingly quashed. The :espondents are given lif‘gezty to issue igesh show-cause notice / notices to the petitianers, ask £or their reply and make an inquizy into the allegation and counter allegation. Respondents shall be fgee to pass orders an accordance with law after taking into consideration the replies o£ tee petiti- oners and holding an inquiry i£ an occasion arises” As the orders or termination are being quashedathe petitioners shall be reoinetated to their basic posts with all consequentxial benefits to be paid by respondentsa There shall be no order aw. .§ V" . “ VJ Sd/— R.S. Garg Judge Sd/— Shief Justiee ‘1 \ Jyotiéni “e.