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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 2951 of 2022
Reserved on : 12.03.2024
Delivered on : 31.05.2024
Dr. Durga Sharan Chandra S/o Shri I. L. Chandra Aged About
51 Years R/o D - 259, Rama Green City Khamtarai, Bilaspur,
District Bilaspur Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, To The Govt. Of
Chhattisgarh Department Of Higher Education Mantralaya
Mahanadi Bhawan, Naya Raipur, P.S. Rakhi, Raipur
Chhattisgarh.
2. The Governing Body (Constituted Under Statute 28 Of College
Code Of Chhattisgarh Vishwavidyalaya Adhinium 1973 Of D.P.
Vipra College) Through The Secretary To The Governing Body
Office Of Principal, D.P. Vipra College Old High Court Road,
Bilaspur Chhattisgarh.
3. The Principal D.P. Vipra College Old High Court Road Bilaspur
Chhattisgarh.
4. The Inquiry Officer D.P. Vipra College Old High Court Road
Bilaspur Chhattisgarh.
---- Respondents
and
WPS No. 2988 of 2022
Subir Sen S/o Shri R.B. Sen, Aged About 60 Years R/o 17/361,
Sarju Bagicha, Azad Nagar Bilaspur, District Bilaspur
Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary To The Govt. Of
Chhattisgarh Department Of Higher Education Mantrtalaya
Mahanadi Bhawan, Naya Raipur Ps Rakhi, Raipur
Chhattisgarh.
2. The Governing Body (Constituted Under Statute 28 Of College
Code Of C.G.,vishwavidyalay Adhinium 1973 Of D.P. Vipra
College) Through The Secretary To The Governing Body Office
Of Principal, D.P.Vipra College Old Higher Court Road, Bilaspur
Chhattisgarh.
3. The Principal D.P. Vipra College Old High Court Road Bilaspur
Chhattigarh.
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4. The Inquiry Officer D.P. Vipra College Old High Court Road
Bilaspur Chhattisgarh.
---- Respondents
For Petitioners : Mr. Anurag Dayal Shrivastava, Advocate.
For State : Ms. Shailja Shukla, Dy. Govt. Advocate.
For res. No. 2 to 4 : Mr. B.P. Sharma, Mr. M.L. Sakat & Ms. Anuja
Sharma, Advocates.
________________________________________________________
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. Order
1. The matters were listed in motion hearing but in view of the
judgment passed by the Hon’ble Division Bench in Writ Appeal
No. 383 of 2022 in case of Subir Sen Vs. State of Chhattisgarh
passed on 02.02.2024, wherein Hon’ble the Division Bench has
directed for passing afresh order expeditiously, the matter was
taken up for hearing on 12.03.2024 and arguments were heard.
The parties were directed to file their synopsis within a week. In
pursuance of the direction, the petitioners as well as
respondents No. 2 & 3 have submitted their written submission
also.
2. Since the identical facts and law are involved in both
the writ petitions i.e. W.P. (S) No. 2951 of 2022 and W.P.
(S) No. 2988 of 2022, they are heard analogously and are
being disposed of by this common order.
3. The petitioners who were working as Assistant Professor with
the respondents No. 2 and 3 have challenged the termination
order dated 17.02.2022 (Annexure P/1) passed in view of
resolution dated 16-02-2022 (Annexure P/9) and also prayed for
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quashing of the entire departmental inquiry. The petitioners
have also prayed for reinstatement with all consequential
benefits.
4. Brief facts as reflected from the records of both the cases are
that the respondents No. 2 and 3 is the College run by the
society registered under the Societies Act. The college run by
the society is an unaided education institution as it is not getting
any grant from the State Government or from any commission.
The petitioners were appointed as Assistant Professor on 03-
10-1987 and were confirmed as per Statute -28 of the
College Code framed under C. G. Vishvidyalaya Adhiniyum
1973 on 17-06-2003. On 10-01-2022 the Respondent-3
issued notice to the Petitioners regarding their decision to
initiate departmental inquiry against them. Along with
information dated 10-01-2022 charge-sheet dated 10-01-202
was also annexed wherein following charges were levelled
against them:-
^^vkjksi dz- 1 & vkids fo:} egkfo?kky; esa dk;Zjr deZpkjh }kjk
izFke lwpuk fjiksVZ ntZ djk;h x;h g]S ftlesa vkids fo:} Hkkjrh;
n.M lafgrk 354 354¼v½ 354¼c½ 354¼l½ 354¼n½ 509¼v½ 509¼c½
ita hc} dh x;h g]S tks fdlh efgyk deZpkjh ds fo:} fd;k x;k
d`R; dnkpj.k ,oa vuSfrdrk dh Js.kh esa vkrk g]S ftlls egkfo?kky;
dh Nfo ,oa v/;;ujr Nk= & Nk=kvksa ij foifjr izHkko iM+rk] tks
xaHkhj vijk/k dh Js.kh esa vkkrk gSaA
vkjksi dz- 2 & vkids }kjk izca/ku dks vlR;] feF;k ,oa xqejkg djus
okyh tkudkjh izsf"kr dh xbZ Fkh] tks dnkpj.k dh Js.kh esa vkrk gSA
vkjksi dz- 3 & vkids }kjk vkukf/kd`r :i ls egkfo?kky; ds fo"k; esa
vuko';d tkudkjh nwljs laLFkkvksa dks izsf"kr fd;k x;k g]S ftlls
egkfo?kky; dh Nfo Nwfey gksrh gS] tks dnkpj.k dh Js.kh esa vkrk
gSA
vkjksi dz- 4 & izkpk;Z ds i= dz- 769@ Lfkk@ 2018] fcykliqj
fnukad 31-01-2018 dks izsf"kr vkjksi i= dk tokc ugha fn;k tkuk]
izkpk;Z ds vkns'k dk mYya?ku tSls xaHkhj dnkpj.k dh Js.kh esa vkrk
gSA**
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5. The petitioners submitted their reply on 12-01-2022 denying the
allegations made in the charge sheet mainly contending that the
copy of the FIR has not been provided to them on the basis of
which charges of misconduct and moral turpitude have been
levelled against them. It is also submitted that they may be
provided copy of the FIR and the documents as detailed in their
reply. The petitioners have also demanded certain documents
regarding charges No. 1 to 4. It has been specifically contended
that due to non supply of these documents it is difficult for them
to defend their case properly which causes prejudice to defend
their case. As such, it is necessary that the documents as
demanded by them be supplied. They have also demanded
appointment of legal representative to defend them in the
departmental enquiry as well as list of witnesses to be
examined in the enquiry.
6. The record of the case would further demonstrate that the
respondents without giving any consideration to the reply
submitted by the petitioner, have appointed Enquiry Officer on
15-01-2022. The petitioners have raised objection before the
respondents No. 3 the Principal of the College that they have
not been supplied the relevant documents and the memo dated
15-01-2022 does not specify who has been appointed as
Enquiry Officer and under which provisions Enquiry Officer as
well as Departmental Representatives have been appointed.
The respondent No. 3 has supplied them documents relating to
charges levelled against them on 22-01-2022. The petitioners
prayed for time as they require some documents to submit reply
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to the charge-sheet vide their letter dated 29-01-2022 and 15-
02-2022. But, without complying with the principle of natural
justice the respondents directed the petitioners to appear on
16-02-2022 vide Memo dated 11-02-2022 as the Executive
Committee has to take decision on the enquiry with regard to
the petitioners conducted by the Principal of the College.
7. On the above factual foundation the petitioners have submitted
that since the inquiry has been conducted in violation of
Principle of Natural Justice Statute 28 of College Code which
has statutory force and the same provides for imposing penalty
to the teaching staff, provides that procedure regarding
imposition of penalty to the Government Servant is to be
followed while taking disciplinary action against teaching staff of
unaided institution. As such, the Rules of Chhattisgarh Civil
Services (Classification, Control and Appeal) Rules, 1966 are
applicable to them which provide the procedure for conducting
the departmental inquiry. This has been violated, as such
enquiry is bad-in-law and the termination order dated 17-02-
2022 based upon this illegal enquiry deserves to be quashed. It
has also been contended that the petitioners were not given any
opportunity to cross-examine the witness, no opportunity to
produce before the Enquiry Officers the oral or documentary
evidence was given, thus, it is in violation of Rule 14 CCA Rules
which are applicable in their case also. It has also been
contended that the presenting officer has not been appointed,
therefore, Enquiry Officer has acted as prosecutor and Judge
which is also in violation of the Rules. It has also been
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contended that the Respondents No. 2 to 4 could not prove the
misconduct still the termination from service has been passed.
It has also been contended that merely registration of FIR does
not confer any right to the respondents No. 2 to 4 to terminate
the service treating the said allegation as moral turpitude is also
against the well settled position of law that unless and until the
delinquents are convicted for moral turpitude by competent
Court their services are not liable to be terminated. On this
factual position the petitioners have prayed for quashing of the
entire departmental inquiry and resolution dated 16-02-2022 as
well as termination order dated 17-02-2022.
8. The respondent No. 1 / the State of Chhattisgarh has filed
return mainly contending that since no specific relief is sought
against them and a service dispute between petitioners and
respondents No. 2 to 4 has been agitated in this writ petitions,
nothing is to be replied by them and would pray for dismissal of
the writ petition.
9. The respondent No. 3 has filed return mainly raising objection
about the maintainability of the writ petitions as the petitioners
have alternate efficacious remedy available to them under Rule
32 of the College Code Statute-28. To substantiate these
submissions the respondent has referred to the judgment of
Hon’ble Supreme Court reported in 2022 (5) SCC 345 {Foenix
Arc (P) ltd. vs. Vishwa Bharti Vidya Mandir}. On merits it has
been contended that the petitioners are involved in the act of
assault or criminal force on a woman employee of the college
with intent to outrage her modesty. Therefore, Crime No.
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505/2017 has been registered by the Police Station, City
Kotwali Bilaspur against the petitioners for commission of
offence under Section 354(A)(i)(ii)(iv) read with Section 34 of
the IPC which is a serious offence and moral turpitude is
involved. Thus, punishment is proportionate to the misconduct.
To substantiate the submission he has referred to the judgment
of Hon’ble Supreme Court reported in 2017 (2) SCC 528
{Krishna District Cooperative Bank vs. K. Hanumanta Rao}
and would pray for dismissal of the writ petition.
10. The respondents No. 2 and 4 have filed reply mainly contending
that the petitioners were involved in the criminal case for
committing an offence under Section 354(A), 354(B), 354 (C),
354(D), 509(A) and 509(B) of the IPC. The respondents have
also taken specific stand that petitioners have alternate remedy
as per the Rule 32 of the College Code Statute-28 as such the
writ petitions are not maintainable. It has been further
contended that petitioner-Dr. Durga Sharan Chandra becomes
a member of the Public Service Commission, as such in view of
the Article 319 of the Constitution of India he is prohibited to
hold any office on ceasing of the such membership from Public
Service Commission. It is also submitted that the petitioners are
involved in the commission of offence which is serious in
nature, therefore, punishment imposed upon them is
proportionate to the misconduct and would pray for dismissal of
the writ petitions. The respondents have also annexed the copy
of the Criminal Revision, documents relating to the
departmental inquiry conducted against the petitioners.
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11. This Court vide its order dated 26-04-2023 has directed the
respondents No. 2 to 4 to produce the original records of the
Departmental Enquiry conducted against the petitioners which
has been produced at the time of final argument.
12. The learned counsel for the petitioners would submit that the
petitioners’ service are governed by the Statute 28 of the
College Code which has statutory force having been framed
under the C. G. Vishvidyalaya Adhiniyum 1973. To
substantiate this submission he has referred to the judgment of
the Hon’ble Supreme Court in the matter of “ Prabhakar
Ramakrishna Jodh -vs- A.L. Pande & other”: 1965 (2)
SCR 713 and would submit that since the respondents have
violated the statutory provisions of the Statute 28 which
provides procedure for conducting enquiry, thus the enquiry is
bad-in-law and has been conducted in violation of Principle of
Natural Justice also as such writ petition is maintainable before
this Court. It has also been contended that the punishment
order has been issued by incompetent person as the appointing
authority for the petitioners would be governing body. To
substantiate this submission they have referred to Rule 8(1)(d)
and 30(1) of the Statute 28 and the judgment of Hon’ble
Supreme Court in case of Union of India vs. V. V. Gopinath
{AIR 2014 SC 88}, State of U.P. vs. Saroj Kumar Sinha {2010
(2) SCC 772}, State of Uttarnchal and Others vs. Kharak
Singh {2008 (8) SCC 236} and judgment of Hon’ble Division
Bench of this Court in case of Gupteshwar Prasad Sinha vs.
State of M.P. {M.C.C. No. 36/2005 dated 04-09-2014}. It has
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also been contended that the termination order has been
imposed without approval of Executive Council of the University
which is also violation of Section 31 (3) of the Statue -28. He
would further submit that Hon’ble the Division Bench in W.A.
No. 33/2024 & W.A. No. 38/2024 decided on 02.02.2024 has
already held that the termination/removal of the petitioners
cannot be given effect to unless it is approved by the Executive
Council and in case in hand, the decision/removal has never
been placed before the Executive Council of the University, as
such the proposal of removal cannot be given effect and would
pray for quashing of the proposal of termination of service of the
petitioners dated 16.02.2022 and prayed for reinstatement with
full backwages.
13. Learned counsel for respondents No. 2 to 4 would submit that
no relief with regard to termination order dated 17.02.2022 has
been claimed, therefore, the same cannot be granted by this
Court in view of law laid down by Hon’ble the Supreme Court in
case of Bachhaj Nahar Vs. Nilima Mandal & another reported
in AIR 2009 SC 1103 and Visweswara Infrastructure Pvt. Ltd.
Vs. Telangana State Industrial Infrastructure Corporation
Ltd. reported in 2023 SCC OnLine TS 2980 and would submit
that the misconduct submitted by the petitioner is so grievous
as such they cannot be reinstated with the respondent which is
an educational institution. He would further submit that the
petitioners’ case falls within the ambit of Clause 29 of the
College Code, which deals with the misconduct and in case of
misconduct before termination, approval of the Executive
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Council is not necessary and would pray for dismissal of the writ
petitions.
14. The record of the case would show that earlier both the writ
petitions were dismissed by this Court vide order dated
28.11.2023 on the count that the petitioners have alternate
remedy of filing appeal before the appellate authority
constituted under the College Code which has binding effect
upon the petitioners and the respondents. The petitioners being
aggrieved with this order, have preferred appeal which was
registered as W.A. No. 33/2024 & W.A. No. 38/2024 and
Hon’ble the Division Bench vide order dated 12.02.2024 has set
aside the order and passed the following order:-
“24. From perusal of sub-section (3) of Section 31 of the
Statute 28, it transpires that the decision of removal /
termination of the appellants cannot be given effect to
unless it is approved by the Executive Council. In the
present case, the impugned order of termination has never
been placed before the Executive Council of the University
and therefore, in view of the said statutory bar, the
proposal of removal can not be given effect to. So far as
the provision of appeal as prescribed under Section 32(3)
(i) of the Statute 28 is concerned, the language is very
clear that appeal would lie to the Tribunal against the order
of Governing Body and not the proposal or resolution. The
proposal or resolution of the Governing Body can be
converted into ‘order’ only after its approval of the
Executive Council of the University. The mandate of
Section 31(3) of the Statute 28 is very specific that the
proposal/decision of Governing Body shall not be given
effect to without its approval by the Executive Council and
thus, the decision of the Governing Body would turn into
the order only after its approval of the Executive Council.
This provision further confirm that the stage of appeal
would only come after the decision of the Executive
Council over the resolution/proposal of the Governing
Body. The employee can not prefer an appeal directly to
the Tribunal against the decision of Governing Body
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without its approval by the Executive Council since it would
be considered as premature appeal.
25. Considering the submissions advanced by the learned
counsel for the parties, further considering the provisions
contained in Section 31(3) of the Statute 28, material
available on record and perusing the findings recorded by
the learned Single Judge while dismissing the writ petitions
as not maintainable, we are of the considered opinion that
the decision of termination / removal of the appellants
cannot be given effect to unless it is approved by the
Executive Council and in the case in hand, the decision of
removal / termination has never been placed before the
Executive Council of the University and in view of the
statutory bar, the proposal of removal can not be given
effect to and the observation made by the learned Single
Judge regarding availability of alternative remedy of appeal
under Section 32 of the Statute 28 is apparently unjust and
arbitrary. The learned Single Judge has failed to appreciate
the provisions contained in Section 32 of the Statute 28 in
its proper perspective. It ought to have been considered
that Section 32 has to be read along with the provisions
contained in Section 31(3) of Statute 28 and the stage of
appeal would only come after the decision of the Executive
Council over the resolution/proposal of the Governing
Body. The employee can not prefer an appeal directly to
the Tribunal against the decision of the Governing Body
without its approval by the Executive Council since it would
be considered as premature appeal.
26. For the foregoing reasons, the writ appeals are allowed
and the impugned order passed by the learned Single
Judge is hereby set aside. The matter is remanded back to
the learned Single Judge for fresh consideration. The writ
petitions are restored in its original numbers. The learned
Single Judge after affording due opportunity of hearing to
the parties shall pass the order afresh expeditiously.”
15. On the other hand, learned counsel for respondents No. 2 & 3
opposing the aforesaid submission would submit that the
petitioners have not challenged the order dated 17.02.2022, as
such, the writ petition is not maintainable and would pray for
dismissal of the writ petitions.
16. I have heard learned counsel for the parties, considered the
rival submissions made by them and also perused the records
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of the enquiry proceedings which have been produced by
respondents No. 2 & 3.
17. From the above stated factual and legal submissions, following
point required to be determined by this Court are :-
“If the termination order dated 16.02.2022 is not given
effect as held by Hon’ble the Division Bench, particularly in
paragraph 25 of the judgment, what reliefs the petitioners
are entitled to get.”
18. Learned counsel for the petitioners would submit that Hon’ble
the Division Bench of this Court in paragraph 20 of the
judgment has held that termination/removal of the petitioners
cannot be given effect to unless it is approved by the Executive
Council and in the present case, it has not been approved by
the Executive Council of the University, as such it is presumed
that the petitioners are in service and they are entitled to be get
all the benefits attached with the service.
19. Since Hon’ble the Division Bench has already held that the
termination from service of the petitioners cannot be given
effect unless it is approved by the Executive Council of the
University. Admittedly in the present case, no such approval of
the Executive Council is placed on record, thus, it is held that
the termination from service of the petitioners cannot be given
effect. It means they are in service during this period as their
order of termination dated 17.06.2022 is not given effect,
therefore, the petitioners are deemed to be in service. The
petitioners have nowhere stated in their writ petitions that on
account of their illegal termination dated 17.02.2022 (though it
has not been given effect), they remained unemployed or
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despite attempt made by them to get alternate employment but
they could not get any employment to claim backwages for this
period as burden lies upon them to prove the same. Thus, the
petitioners are directed to join duty forthwith but they are not
entitled to get wages for this period in view of the law laid down
by Hon’ble the Supreme Court in case of Pradeep Vs.
Manganese Ore (India) Limited & others, reported in (2022) 3
SCC 683, wherein it has been held at paragraph 12 as under:-
“12. It is, undoubtedly, true when the question arises as to
whether the backwages is to be given and as to what is to
be the extent of backwages, these are matters which will
depend on the facts of the case as noted in Deepali
Gundu Surwase (supra). In a case where it is found that
the employee was not at all at fault and yet, he was visited
with illegal termination or termination which is actually
activised by malice, it may be unfair to deny him the fruits
of the employment which he would have enjoyed but for
the illegal / malafide termination. The effort of the Court
must be to then to restore the status quo in the manner
which is appropriate in the facts of each case. The nature
of the charges, the exact reason for the termination as
evaluated and, of course, the question as to whether the
employee was gainfully employed would be matters which
will enter into the consideration by the Court.”
20. Accordingly, the writ petitions are allowed in part. The
respondents No. 2 & 3 are directed to allow the petitioners to
join their duties as Assistant Professors with continuity of
service but without back-wages, reserving liberty to the
respondents to proceed further in accordance with law, if they
so desired.
21. It is made clear that this Court has not examined whether the
enquiry is proper or not or the petitioners have been given
proper opportunity of hearing or not to defend themselves or
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whether the petitioners have committed any misconduct or not.
All these questions are kept open and it will be considered and
decided if exigency so arises.
22. Accordingly, the writ petitions are allowed in part by directing
that respondents No. 2 & 3 to allow the petitioners to join duty
within one month from the date of receipt of copy of this order
but the petitioners will not be entitled to get any back wages for
the period from 17.06.2022 till petitioners are reinstated within
stipulated time period of one month as granted by this Court.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun