Birbal Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 561 Chatt

                                    1

                (Proceedings through Video Conferencing)
                                                                   NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                           WA No. 42 of 2022

Birbal Yadav S/o Shri Rupchand Yadav Aged About 28 Years R/o Village
Shankerpur (Sondakhand), P.S. - Chalgali, Post Office- Lurgikala, Distt.-
Sarguja (C.G.)

                                                            ---- Appellant

                                 Versus

1.   State of Chhattisgarh Through-The Secretary, Department of
     Forest, Mantralaya, D.K.S. Bhawan, Atal Nagar, Nawa Raipur,
     Distt.- Raipur (C.G.)

2.   The Collector Surguja, Distt. Surguja (C.G.)

3.   The Managing Director District Union Minor Forest Produce, East
     Surguja, Ambikapur, Distt.- Surguja (C.G.)

4.   The President Prathimik Vanopaj          Sahkari   Samiti   Maryadit
     Giriwarganj, Distt. Surguja (C.G.)

5.   The Range Officer Balrampur, Distt. Surguja (C.G.)

6.   Prathmik Vanopaj Sahkari Samiti Maryadit, Girwarganj Distt.
     Surguja (C.G.), Through- The President, Prathmik Vanopaj Sahkari
     Samiti Maryadit, Girwarganj, Distt. Surguja (C.G.)

7.   The Governing Body (Prabandh Karini) Of Prathmik Vanopaj
     Sahkari Samiti Maryait Girwarganj, Distt. Surguja (C.G.) Through-
     The President, Prathmik Vanopaj Sahkari Samiti Maryadit
     Girwarganj, Distt. Surguja (C.G.)

8.   Devchand Ram S/o Dhaneshwar Ram Aged About 39 Years R/o
     Village- Girwarganj, P.S. Chalgali, District- Surguja (C.G.)

                                                        ---- Respondents

(Cause-title taken from Case Information System)

For Appellant : Mr. Kishore Narayan, Advocate. For Respondents No. 1, 2 and 5 : Mr. Gagan Tiwari, Deputy Government Advocate.

For Respondents No. 3, 4, 6 and 7 : Mr. Ashutosh Singh Kachhawaha, Advocate.

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri N. K. Chandravanshi, Judge

Judgment on Board

Per Arup Kumar Goswami, Chief Justice

01.02.2022

Heard Mr. Kishore Narayan, learned counsel for the appellant. Also

heard Mr. Gagan Tiwari, learned Deputy Government Advocate

appearing for respondents No. 1, 2 and 5 and Mr. Ashutosh Singh

Kachhawaha, learned counsel appearing for respondents No. 3, 4 ,6

and 7.

2. This appeal is presented against an order dated 18.08.2020 passed

by the learned Single Judge in WPS No. 3839 of 2010.

3. The writ petition was filed by respondent No. 8 herein and the

appellant was arrayed as respondent No.6 in the writ petition.

4. Paragraphs 8 to 10 of the order passed by learned Single Judge

read as follows:

"8. In order to reject the representation of the

petitioner, it was absolutely necessary for respondent

No.3 to clearly record a finding that whether the

petitioner has been dismissed from service after

giving an opportunity of hearing and after holding an

enquiry, if any, in accordance with law from the post

of Manager, which is absolutely lacking in the

impugned order, as such, the impugned order is liable

to be set aside on this ground alone.

9. The finding of respondent No.3 that merely

because respondent No.6 has already been appointed

on the post of Manager on 15.6.2006, which has been

approved by respondent No.3 on 23.6.2006 is not a

ground to dislodge the case of the petitioner. Once he is

duly appointed on the post of Manager by respondent

No.4/7 and unless he has been removed from the post in

accordance with law, same cannot be rejected merely on

the ground that other officer has been appointed.

10. In that view of the matter, the impugned order

dated 31.10.2009 (Annexure P1) rejecting the

petitioner's representation is hereby set aside. The

matter is remitted to respondent No.3, who will

consider the case of the petitioner and respondent

No.4/7 and to hear respondent No.6 and record a

finding that whether the petitioner has been removed

from service in accordance with law or not and

thereafter to pass a reasoned and speaking order

within three months from the date of receipt of a copy

of this order after hearing the parties."

5. Mr. Narayan submits that the impugned order came to be passed

without any notice being served upon him and therefore, the order of

learned Single Judge is liable to be set aside on this ground alone. It is

further submitted by him that edifice of the order of learned Single Judge

is based on the assumption that no order had been passed removing the

writ petitioner from the post of Manager, except the resolution dated

02.06.2006. He contends that by an order dated 15.06.2006 (Annexure -

A/3), the competent authority had removed the petitioner and thus, the

very premise on which the learned Single Judge passed the order is

wrong.

6. A perusal of the records of the writ petition goes to show that the

Court, by an order dated 17.02.2012, recorded a submission of the

learned counsel for the writ petitioner that report of Dasti service effected

upon respondent No.6 is filed. There is also an office note dated

31.08.2015 indicating that the notice was served on respondent No. 6.

However, it will not be necessary for us to dwell upon the aspect relating

to service of notice on the appellant to record a finding either way

because of certain developments that have taken place.

7. The appellant has brought on record, by filing I.A. No. 02 of 2022,

certain documents on 28.01.2022.

8. A perusal of the said documents, such as notice dated 08.10.2021,

reply filed by the appellant to the said notice, copy of the order dated

11.11.2021 and copy of order dated 12.11.2021, goes to show that

consequent upon the direction issued by the learned Single Judge, the

appellant had participated in the proceedings before the authorities and

only when adverse orders dated 11.11.2021 and 12.11.2021 came to be

passed that the appellant has chosen to prefer the appeal on 07.01.2022.

The order of learned Single Judge was allowed to be implemented and

as the appellant had participated in the proceedings, we are of the

opinion that the appellant cannot approbate and reprobate at the same

time.

9. Taking that view, the writ appeal is dismissed.

10. At this juncture, Mr. Narayan submits that the appellant may be

permitted to assail the orders dated 11.11.2021 and 12.11.2021.

11. Without expressing any opinion on the aforesaid submission, it is

observed that the appellant, if so advised, may avail such remedy as may

be available to him in law.

                 Sd/-                                          Sd/-
       (Arup Kumar Goswami)                          (N. K. Chandravanshi)
            Chief Justice                                    Judge




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