Sewak Ram Purena vs State Of Chhattisgarh
2021 Latest Caselaw 2672 Chatt

                                       1

                                                                            AFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                     Order reserved on:16.9.2021
                    Order delivered on:04.10.2021
                    Writ Petition (S) No.30 of 2012

       Sewak Ram Purena, S/o R.K.Purena, aged about 40 years,
       R/o Village­Dighari, Tahsil­Arang, District - Raipur
       (CG)

                                                               ­­­Petitioner
                                  Versus
     1. State of Chhattisgarh, Through the Secretary, Law &
        Legislative    Affairs   Department,   D.K.S.    Bhawan,
        Mantralaya, Raipur (Chhattisgarh)
     2. The Chhattisgarh Madhyastham Adhikaran, Through: The
        Registrar, Chhattisgarh Madhyastham Adhikaran, Raipur,
        Abhyodaya    Parisar,   Nagar    Ghadi  Chowk,    Raipur
        (Chhattisgarh)
                                               ­­­Respondents

For Petitioner : Mr.Harshwardhan Parghania, Advocate For Res.No.1/State : Mr.Animesh Tiwari, Dy.A.G. For Respondent No.2 : Mr.Pawan Shrivastava, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order

1. The petitioner herein calls in question his order of

removal dated 15.12.2011 (Annexure P­1) passed by

respondent No.2 removing him from the post of Peon

appointed on 25.1.2008 ((Annexure P­2) against SC

category on collectorate rate and also calls in question

the order dated 04.06.2011 (Annexure P­7) as arbitrary

and illegal.

2. It is the case of the petitioner that he was appointed

on 25.1.2008 on the vacant and sanctioned post of Peon

by the order of the competent authority on temporary

basis on probation of two years and upon completion of

period of probation, the petitioner was confirmed by

express order in writing dated 21.4.2010 (Annexure P­3)

in accordance with the Chhattisgarh Civil Services

(General Conditions of Service) Rules, 1961 (hereinafter

called as 'Rules of 1961'). Thereafter the petitioner

was served with the notice on 20.9.2011 that his

behaviour has been objected by one of the Judicial

Member of Administrative Tribunal and his explanation

was called, which he submitted on 23.9.2011 vide

Annexure P­5. Thereafter, on 17.11.2011 (Annexure P­6)

again he was served with show­cause notice for certain

act of indiscipline for seeking leave of 3 days in

writing whereas he has obtained 1 day leave and

thereafter by order dated 15.12.2011 (Annexure P­1) his

services have been terminated, which has been called by

the petitioner as arbitrary, unsustainable, without

jurisdiction and without authority of law.

3. Return has been filed by respondent No.2 particularly

holding that on 4.6.2011 corrigendum / order has been

issued omitting the word 'probation' in order of

appointment dated 25.1.2008 as well as order dated

21.4.2010 confirming the petitioner after the period of

probation, as such, the petitioner has been found guilty

of grave misconduct, therefore, his services have been

terminated after giving him one month salary in advance

in lieu of notice.

4. Upon receipt of the return, the petitioner has called in

question the order dated 4.6.2011 branding the same

without jurisdiction and without authority of law.

5. Mr.Harshardhan Parghania, learned counsel for the

petitioner, would submit that the petitioner was

appointed vide order dated 25.1.2008 (Annexure P­2)

subject to probation and he was confirmed on 21.4.2010

and simply seeking explanation on 17.11.2011, his

services have been terminated by order dated 15.12.2011,

which is totally unsustainable and bad in law in view of

decisions rendered by the Supreme Court in the matters

of Diljit Singh Bedi v. Shiromani Gurdwara Prabandhak

Committee, Sri Amritsar1 and Jagdish Singh v. Punjab

Engineering College and others2, as there is no such

misconduct which would warrant inquiry against the

petitioner. He would further submit that impugned order

dated 4.6.2011 (Annexure P­7) amending his condition

of service is totally violative of Article 14, 16 and 21

of the Constitution of India as confirmation is one of

the condition of service, which cannot be altered

without following the principles of natural justice. He

would rely upon the judgment of the Supreme Court in the

matter of H.L. Trehan and others v. Union of India and

others3 and State of Punjab v. Kailash Nath4. Therefore,

the impugned order dated 15.1.2011 (Annexure P­1) and

1 (2011) 5 SCC 417 2 (2009) 7 SCC 301 3 (1989) 1 SCC 764 4 (1989) 1 SCC 321

order dated 4.6.2011 (Annexure P­7) are liable to be

set­aside.

6. On the other hand, Mr.Animesh Tiwari, learned Deputy

Advocate General for respondent No.1/State, would submit

that the impugned order has been passed by respondent

No.2 as the State is formal party.

7. Mr.Pawan Shrivastava, learned counsel for respondent

No.2, would submit that order dated 4.6.2011 has rightly

been passed and the word 'probation' has rightly been

omitted and as such, the petitioner was only an employee

appointed on collectorate rate and by giving him one

month's salary in lieu of notice his services have

rightly been terminated, as such, the writ petitioner

deserves to be dismissed.

8. I have heard learned counsel for the parties, considered

their rival submissions made hereinabove and also went

through the records with utmost circumspection.

9. In the present case, two questions arise for

consideration,

(i) Whether, respondent No.2 is justified in altering the condition of service by order dated 4.6.2011 without affording an opportunity of hearing to the petitioner ?

(ii) Whether, the order of termination dated 15.12.2011 is in accordance with law ?

Answer to question No.1:-

10. The petitioner was appointed on the vacant and

sanctioned post of Peon (collectorate rate) by order

dated 25.1.2008 on probation of two years on which he

joined on 1.2.2008 and thereafter by order dated

21.4.2010 his probation was confirmed in accordance with

the provisions contained in the Rules of 1961 and

thereafter order dated 4.6.2011 (Annexure P­7) came to

be passed holding that the word 'probation' is omitted

in appointment order dated 25.1.2008 and confirmation

order dated 21.4.2010 and thereafter by order dated

15.12.2011 (Annexure P­1), the petitioner's services

have been terminated, which has been called in question

by the petitioner in this writ petition.

11. Rule 8 of the Rules of 1961 states as under:­

"8. Probation. ­ (1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed.

(2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.

(3) A probationer shall undergo such training and pass such departmental examination during the period of his probation as may be prescribed.

(4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant.

(5) The services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be terminated at the end of the period of his probation.

(6) On the successful completion of probation: and passing of the prescribed departmental examination, if any, the probationer shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed, either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non­availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed.

(7) A probationer, who has neither been confirmed, nor a certificate issued in his favour under sub­rule (6), nor discharged from service under sub­rule (4), shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants (Temporary and Quasi­Permanent Service) Rules, 1960."

12. It appears that the petitioner's services were confirmed

on 21.4.2010 after he has completed the period of two

years on probation as he was appointed on the vacant

post of Peon though on collectorate rate. Now the

question is what constitutes the condition of service.

13. In the matter of Kailash Nath (supra) the Supreme Court

has clearly held that confirmation is one of the

conditions of service. It was observed as under:­

"7. In the normal course what falls within the purview of the term "conditions of service" may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay scale, leave, provident fund, gratuity, confirmation, promotion, seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation, deputation and disciplinary proceedings. Whether or not a government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service. Making a

provision that a government servant, even if he is guilty of grave misconduct or negligence which constitutes an offence punishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive. It is likely to be an incentive not for efficient work but for committing offences including embezzlement and misappropriation by some of them at the fag end of their tenure of service and making an effort that the offence is not detected within the period prescribed for launching prosecution or manipulating delay in the matter of launching prosecution. Further, instances are not wanting where a government servant may escape prosecution at the initial stage for want of evidence but during the course of prosecution of some other person evidence may be led or material may be produced which establishes complicity and guilt of such government servant. By that time period prescribed, if any, for launching prosecution may have expired and in that event on account of such period having expired the government servant concerned would succeed in avoiding prosecution even though there may be sufficient evidence of an offence having been committed by him. Such a situation, in our opinion, cannot be created by framing a rule under Article 309 of the Constitution laying down an embargo on prosecution as a condition of service."

14. Similarly, in the matter of H.L.Trehan (supra), the

Supreme Court has held that there can be no deprivation

or curtailment of any existing right, advantage or

benefit by a government servant without complying with

the rules of natural justice by giving the government

servant concerned an opportunity of being heard. It was

observed as under:­

"11. One of the contentions that was urged by the respondents 1 to 4 before the High Court at the hearing of the writ petition, as noticed above, is that unguided and arbitrary powers

have been vested in the official by sub­section (1) of Section 11 for the alteration of the terms and conditions of service of the employees. It has been observed by the High Court that although the terms and conditions of service could be altered by CORIL, but such alteration has to be made `duly' as provided in sub­section (2) of Section 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word duly' which, according to Concise Oxford Dictionary, means 'rightly, properly, fitly' and according to Stroud's Judicial Dictionary, 4th edn., the word `duly means 'done in due course and according to law'. In our opinion, the word `duly' is very significant and excludes any arbitrary exercise of power under Section 11(2). It is now well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular was therefore, be sustained as it Offends against the rules of natural justice.

12. It is, however, contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post­decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post­decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post­decisional opportunity. In this connection, we may refer to a recent decision of this Court in K.I. Shephard v. Union of India 5. What happened in that case was that the Hindustan Commercial Bank, The Bank of Cochin Ltd. and

5 (1987) 4 SCC 431

Lakshmi Commercial Bank, which were private Banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under Section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks were excluded from employment and their services were not taken over by the respective transferee Banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the court observed as follows: (SCC pp. 448­49, para 16)

"We may now point out that the learned Single Judge of the Kerala High Court had proposed a post­amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post­decisional hearing. On the other hand, the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their case could be examined. We do not think that would meet the ends of justice. They have already been thrown our of employment and having been deprived of livelihood they must be facing serious difficulties. I here is no justification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken. there is a tendency to uphold it and a representation may not really yield any fruitful purpose."

13. The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the Constitution. The High Court, in our opinion, was perfectly justified in quashing the impugned circular."

15. As such, the petitioner having been completed the period

of probation on 31.1.2020 and having been found suitable

for the post of Peon (collectorate rate) on 21.4.2010

and confirmed thereby and confirmation being condition

of service, respondent No.2 could not have unilaterally

withdrawn the fact of confirmation as admittedly he has

held to have been confirmed on the post of Peon

(collectorate rate), that too without affording an

opportunity of hearing to him, as such, the order dated

4.6.2011 (Annexure P­7) deserves to be and is hereby

set­aside as held by the Supreme Court in the matters of

H.L.Trehan (supra) and Kailash Nath (supra). The

question is answered accordingly.

Answer to question NO.2:­

16. The petitioner was confirmed employee as he has been

confirmed by order dated 21.4.2010 after completion of

period of probation. As already held in foregoing

paragraphs that order dated 4.6.2011 is without

jurisdiction and without authority of law the petitioner

being confirmed employee on the date of termination

dated 15.12.2011, his services could not have been

terminated without holding regular departmental enquiry

in accordance with Rule 14 (1) of the Chhattisgarh civil

Services (Classification, Control and Appeal) Rules,

1966 (hereinafter called as 'Rules of 1966') as

termination from service is major penalty within the

meaning of Rule 10 (viii) of the Rules of 1966 and as

such, merely giving one month's salary in lieu of

notice, the petitioner's services could not have been

terminated.

17. Accordingly, the order dated 4.6.2011 (Annexure P­7)

altering the condition of service and the order dated

15.12.2011 (Annexure P­1) terminating the services of

the petitioner are hereby set­aside. Respondent No.2 is

directed to reinstate the petitioner forthwith with all

consequential service benefits except backwages. The

question of backwages will be considered by respondent

No.2 in accordance with applicable Rules on the basis of

material available on record and to pass an order within

two months from the date of a copy of this order. The

petitioner is at liberty to file representation within

two weeks claiming backwages.

18. The writ petition is allowed to the extent indicated

hereinabove. No order as to cost(s).

Sd/-

(Sanjay K. Agrawal) Judge B/­