IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION NQ. ts ^7 OF 2005 SIN6LE BENCH 1 PETITIONER: / /Ishwar Prasad Jaiswal, S/o-Late p ^ Shri Reshamlal Jaiswal Aged about »-C^r /^ 34 years, R/o Village -Gram »^?^. .\ t6>\ ?an ayat~ Devsagar, Block ^<\vL^ ^fl^^ Bilai§arh'Distt- Kaipur (C.G.) c^ &'^ to^- VERSU8 RESPONDENT iSY. 1.. State of Chhattisgarh Through it?s Secretaiy Department of Panchayat D.K.S. Bhawan Raipur (C.G.) £^S^5>^ ^::"^^\^-"" ^•' -Y\ ChiefExecutive Officer ^A-rP^<' .^^^' / Janpad Panchayat Bilaigarh, '^ 'A ^ ' Distt. Raipur (C.G) ^: -y' ^' Sarpanch, Gram Panchayat Devsagar, Block Bilaigarh, Distt- Raipur (C.G.) -3 •^RIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF AN APPROPRIATE ^ ' WRIT IN THE NATURE OF MANDAMUS / CERTIORARI ETC. OR I DIRECTION / ORDER IN THE LIKE NATURE. '_-- y mGH COLTRT OF CHHATTISGARH, BILASPUR WritPetitionNo. 5147/2005 PETITIONER RESPONDENTS Versus 1. 2. 3. Ishwar Prasad Jaiswal State ofChhattisgarh through it's Secretary^ Departmesit ofPanchayat, D.K.S. Bhawan, Raipur - (C.G.) ChiefExecutive Officer, Janpad Pasichayat Bilaigarh, Dlstrict Raipur -(C.G.) Sarpanch, Gram Panchayat Devsagas^ Block- Bilaigarh, District Raipur (C.G.) Singie Benc.h: Hon'ble Mr. Justice Satish K, Agnihotri. Present: Shri Vinay Pandey, counsel for petitioner. Ms. Anju Ahuja, Dy. Govt. Advocate for the State/respondent No.l. Slui Sandeep Dubey, counsel for respondents No. 2 & 3. ORAL ORDER ( Passed on 20th day December, 2006 ) The following ordGr ofthe Court was passed by Satish K. Agnihotrt, J, Leamed counsel for the petitioner submits that the petitioner was appomted as Panchayat Karmi at Gram Panchayat Dev Sagar, District Raipur by order dated 29.1.1996 (.^imexure P-1). The petitioner was further appointed as Panchayat Secretary in accordance with provisions of Section 69 of Chhattisgarh Panchayat Raj Avam Gram Swarai Adhiniyam, 1993 (heremafter referred to as the 'Adhiniyam, 1993'). On 24.8.2005, the pstitioner was sen^ed a show cause notice (Annexure P-2). The petitioner submitted his reply to the said show cause notice on 5.9.2005 (Amiexure P-4). The petitioner has sent one more reply to the show cause notice dated 24.8.2005 on 25.8.2005 (Annexure P-3). The petitioner was removed from the post of Panchayat Karmi by the impugned order dated 2.10.2005 (Amiexure P-5) without affording any opportunity of hearmg, in violation of Rule 7 ofthe Panchayat Sendce (Discipline & Appeal) Rules, 1999 (in short Rules, 1999). Leamedcounsel farther submits that Rule 7 ofthe Rules, 1999 provides for an appropriate formal enquiry after framing defmite charge on the basis of allegations along with the statement of allegations requirmg him to submit a written statement ofdefence within such a time prescribed by the authority. Leamed counsel also submits that the impugned order has been passed in violation of the procedure prescribed ,under Rule 7 of the Rules, 1999 for iniposmg major penalty i.e. dismissal from sendce as are prescribed under Rule 5(b)(vii) ofthe Rules 1999. 2. Shri Sandeep Dubey, leamed counsel appearing for respondents 2 & 3 and M:s. Anju Ahuja, Dy, Go^. Advocate for respondent No. 1 fairly submitted that it is tme that a show cause notice was issued and the petitioner has filed his reply thereto, but no proper procedure as envisaged in Rule 7 of Rules, 1999 was followed before the impugned order of dismissal from sendce was passed. 3. I have heard leamed counsel for the parties and pemsed all the documents appended to the writ petition as weU as to the retum filed by the respondents. This is a case where admittedly there is a gross violation of the principles of natural justice and statutoty provisions ofthe Rules, 1999. The show cause notice was issued to the petitioner and the petitioner had also filed reply thereto, but no enquiry was conducted to find out facts, as alleged in the show cause notice. There are serious allegations in the charge-sheet which remamed unsubstantiated and proved, as no enquir}r was held. 4. So far as availability of altemative remedy is concemed, it is mle of discretion, not of law. In the facts and circumstances of the present case, wherein there is clear violation ofstatutor}^ provisions ofRule 7 ofthe Rules, 1999, it is not necessa^ to dismiss this petition on the gi'ound of availability of altemative remedy. 5. Leamed counsel for the petitioner with regard to the back wages submits that the petitioner was not gainfully employed elsewhere and this ^ petition has been filed immediately on 7.10.2005. The petitioner has been restrained from workmg and was deprived salary thereofby illegal conduct of the respondents. The petitioner is entitled to 100% back wages. Per contra, leamed counsel for respondents submit that the petitioner is not entitled to any back wages on the principle of 'no work no pay\ Admittedly, the sendce of the petitioner was teniiinated without following the prmciples of natural justice and also without following the statutory provisions ofthe Rules, 1999. The petitioner was restrained by the conduct of the respondents from working in sendce. Thus, the principle of ino work no pay' will not be applicable. In the facts ofthe case, the petitioner is entitled to 50% back wages. 6. For the reasons stated aboye, fhe impugned order/resolution dated 2.10.2005 (.^nnexure P-5) is quashed and set aside. The petition is allowed. No order as to costs. ——-—— Kvr Sd7- Satish K. Agnihotri Judge