Khilendra Kumar Sahu vs State Of Chhattisgarh
2021 Latest Caselaw 310 Chatt

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                                                                          NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                      Writ Petition (S) No. 2635 of 2017

  1. Khilendra Kumar Sahu S/o Shri Udholal Sahu, Aged About 46 Years
     R/o Village Singarpur, Tahsil Chhuikhadan         ---- Petitioner

                                    Versus

  1. State Of Chhattisgarh Through The Secretary, Panchayat And Rural
     Welfare Department, Mahanadi Bhawan, Mantralaya, New Raipur
     Chhattisgarh, Chhattisgarh

  2. The Commissioner, Durg Division, Durg, Chhattisgarh

  3. The Collector, Durg, District Durg Chhattisgarh.

  4. The Chief Executive Officer, Janpad Panchayat, Chhuikhadan, District
     Rajnandgaon Chhattisgarh

  5. The Block Education Officer, Chhuikhadan, District Rajnandgaon
     Chhattisgarh

  6. Janpad Panchayat, Through Its Chief Executive Officer, Janpad
     Panchayat, Chhuikhadan, District Rajnandgaon Chhattisgarh
                                                     ----Respondents

For Petitioner : Shri Goutam Khetrapal, Advocate.

For State                       :     Ms. Sunita Jain, G.A.
For Respondents No. 4 & 6       :     Shri Rajnish Singh Baghel, Advocate.


                    Hon'ble Shri Justice P. Sam Koshy
                              Order On Board
15.06.2021

1. Aggrieved by the decision of the Divisional Commissioner dated

01.12.2016 arising out of an order of termination from service dated

04.09.2015, the present writ petition has been filed.

2. The facts of the case in brief is that the petitioner was initially appointed

as a Shiksha Karmi Grade-III vide order dated 25.08.2008 at the

primary school at village Singarpur under Tahsil Chhuikhadan District

Rajnandgaon. Serving the respondents for two years, the service of the

petitioner was regularized vide order dated 25.08.2010. However, on

the allegation of unauthorized absence for a considerable period of

time and also on account of a misconduct of being found in a drunken

condition, the service of the petitioner was terminated vide order dated

04.09.2015 Annexure P/3 by the Chief Executive Officer Janpad

Panchayat Chhuikhadan i.e. the respondent No. 4.

3. Aggrieved by the order of termination, the petitioner preferred an

appeal before the Appellate Authority- the respondent No. 3 on

08.03.2016 and the Appellate Authority vide order dated 28.03.2016

(Annexure P/4) has rejected the appeal on the ground of limitation and

also observing that there was no application for condonation of delay.

The petitioner thereafter preferred a revision petition before the

Divisional Commissioner, who inturn vide Annexure P/1 dated

01.12.2016 rejected the revision petition upholding the order of the

Appellate Authority in dismissing the appeal on the ground of limitation.

4. Counsel for the petitioner relying upon a recent judgment of the Hon'ble

Supreme Court in the case of Sesh Nath Singh v. Baidyabati

Sheoraphuli Co-operative Bank Ltd. 2021 SCC On-Line SC 244

submitted that the authorities ought to have shown magnanimity in

entertaining the appeal on merits, particularly when the order under

challenge was an order of termination which otherwise amounts to a

capital punishment. According to the counsel for the petitioner, even

without an application for condonation of delay, the Appellate Authority

so also the Revisional Authority could have ordered for the petitioner to

submit plausible explanation for the delay caused in preferring the

appeal and should have thereafter proceeded and decided the appeal

on merits ignoring the technicality of limitation.

5. Learned counsel for the petitioner further referring to the provisions of

the Panchayat Raj (Discipline and Appeal) Rules submits that the

authorities have been conferred with the power to condone the delay

on sufficient cause being explained. That for all these reasons, the

authorities should have considered and decided the appeal on its own

merits instead of rejecting the case on the ground of limitation. The

learned Counsel for the petitioner submits that if the appeal is not

decided on its own merits, the petitioner would be put to irreparable

loss as he would be remedy less to further challenge the order of

termination which otherwise as a direct barring on the very livelihood of

the petitioner and his dependents. For this reason also, the Appellate

Authority should have sympathetically and orally entertained the

application for condonation of delay and decided the appeal on merits.

6. It is the further contention of the counsel for the petitioner that on merits

also the petitioner has a good case in as much as the order of

termination has been passed without conducting a departmental

enquiry, without granting an opportunity of hearing, without making

known to the petitioner the specific nature of misconduct that he has

committed and thus, the entire action becomes in direct contravention

to the service regulations governing the field of Shiksha Karmi. The

contention of the petitioner further is that both under the provisions of

Panchayat Raj Adhiniyan as also under the provision of the rules

governing the service condition of the Shiksha Karmi, it requires that a

person against whom an adverse order is passed, should always be

given an opportunity of hearing which in the instant case has not been

done so.

7. Learned counsel for the State as also the counsel for the Janpad

Panchayat on the other hand submitted that it is a case where there

was gross misconduct committed by the petitioner in as much as he

remained for unauthorized absence for a considerable long period and

was always found under inebriated condition.

8. It was also the contention of the counsel for the respondents that the

entire action has been initiated at the resolution of the General

Administrative Committee which inturn had taken the decision at the

behest of a recommendation made by the Block Education Officer,

therefore there is hardly any scope of interference left.

9. Having heard the contentions put forth on either side and on perusal of

records particularly taking note of the two orders one passed by the

Collector on 28.03.2016 ( Annexure P/4) and the other passed by the

Commissioner on 01.12.2016 (Annexure P/1), this Court is of the

opinion that admittedly both these orders were passed without

considering the merits of the case and have been only dealing with the

aspect of limitation. Admittedly, the rules provide for the powers of the

Appellate Authority to condone the delay while entertaining an appeal.

One must not forget that the order under challenge in an appeal was an

order of termination.

10. From the pleadings enclosed along with writ petition particularly

the return filed by the respondents, there does not seem to have been

any opportunity of hearing given to the petitioner before the impugned

order was passed nor has the reply of the respondents been able to

substantiate, even an explanation has not been called from the

petitioner before the impugned order was passed. The rule governing

the field specifically provides for an opportunity of hearing to be given

before a decision is taken. These facts ought to had been considered

by the Appellate Authorities who have not considered the same.

11. Moreover, considering the facts that the entire reply put forth by

the respondents respectively are totally silent on the aspect of the

specific period of unauthorized absence, the specific incident on which

the petitioner was found to be in an inebriated condition etc. Even if the

petitioner was unauthorizedly absent atleast when the General

Administrative Committee intended to proceed against the petitioner

and passed a resolution, they ought to have been very specific in-

respect-of the allegations that were made against the petitioner, it

should have been reflected in the resolution, particularly the long period

of absence as alleged the nature of other misconduct as reflected from

the order of termination. The resolution also on perusal is found to be

either vague or baldly worded keeping material details in-respect of the

allegations and charges against the petitioner.

12. In view of the aforesaid facts and circumstances of the case, this

Court has no hesitation in reaching to the conclusion that the impugned

order of termination Annexure P/3 dated 04.09.2015 is not sustainable

in the eye of law and the impugned orders passed by the Collector as

also by the Commissioner Annexure P/4 amd P/1 respectively are also

not sustainable, the three orders are set-aside/quashed and the matter

stands remitted back to the disciplinary authority and the petitioner as a

result would be entitled for reinstatement in service.

13. However, it is made specific that applying the doctrine "No Work

No Pay", the petitioner would not be entitled for the wages for the

intervening period, however there shall be the benefit of continuity of

service provided to the petitioner for the intervening period. It is also

ordered that the liberty shall stand reserved for the respondents to

initiate appropriate disciplinary proceedings against the petitioner for

the specific misconduct that he has committed for which he has been

terminated vide order dated 04.09.2015 after following the due

procedure of law and also in compliance of the principle of natural

justice.

14. In the event if the respondents initiated any action, they are

expected of concluding the proceedings at the earliest preferably within

a period of 120 days from the date of receipt of copy of this order.

15. With the aforesaid observations and directions, the writ petition

stands partly allowed and disposed of.

Sd/-

1. P. Sam Koshy Judge Jyotijha