Research › Browse › Judgment

Kerala High Court · body

1999 DIGILAW 154 (KER)

Sarada v. Nagalassery Grama Panchayat

1999-03-17

K.A.ABDUL GAFOOR

body1999
JUDGMENT K.A. Abdul Gafoor,J. 1. The petitioner is the Head Mistress of the Government Lower Primary School, Kothachira in Palakkad District, within the local limits of the first respondent Panchayat. The 2nd respondent is the President of that Panchayat. The President issued Ext.P1 letter to the petitioner to be present for an enquiry in respect of an allegation against the petitioner that she had misbehaved towards a member of the Panchayat Council. The petitioner did not respond. This resulted in Ext.P2, a notice as to why charge shall not be framed against the petitioner in terms of Rule 4 of the Kerala Panchayat Raj (Control over Officials) Rules, 1997. That notice was issued by the Secretary of the first respondent Panchayat. The petitioner responded in Ext.P3 pointing out that neither the Secretary nor the President did have the authority to proceed against the petitioner by framing charge sheet. In spite of that a charge sheet, Ext.P4 was issued on the petitioner on behalf of the Grama Panchayat by its President 2nd respondent. It is in the above circumstances the petitioner has approached this court challenging Exts.P1 and P4 and seeking a direction forbearing the Panchayat from taking any disciplinary action against the petitioner. The petitioner submits that she is a Government servant. Therefore, the Panchayat does not have any power to proceed against her. Her service had never been lent to the panchayat. The Rules made mention of in Ext.P2 does not have any application so far as she is concerned. Therefore the action of the President of the Panchayat is illegal and is incompetent and liable to be quashed, the petitioner submits. 2. Gaining strength from the provisions contained in Sec.176 and Sec.181 of the Kerala Panchayat Raj, 1994 and the Rules mentioned above, the respondents submit that the service of the petitioner had been lent to the Panchayat when the school was transferred to the Panchayat. Therefore, in every respect the President of the Panchayat and the Panchayat can proceed against the petitioner for imposing minor penalty as provided for in Rule 4 of the said Rules. Rule 2(d) defines the word official and it will included all officers lent by the Government to the service of the Panchayat. Therefore, the Panchayat can proceed against the petitioner as service of the petitioner is lent to the Panchayat. Rule 2(d) defines the word official and it will included all officers lent by the Government to the service of the Panchayat. Therefore, the Panchayat can proceed against the petitioner as service of the petitioner is lent to the Panchayat. This contention is sought to be substantiated, placing reliance on the Order No.A6/2123/95 dated 28-9-95 of the District Educational Officer, Palakkad produced as Ext.R1 (b) along with the rejoinder filed by the respondent. The said order states that the Government had issued G.O.(P) 189/95 dated 18-9-15 in accordance with the provisions contained in the Panchayat Raj Act, 1994 to transfer certain Institutions, Schemes etc. to the Grama Panchayat and Municipalities and it is on the basis of that order, Ext.R1 (b) was issued transferring certain schools in Palakkad District to the local authorities. The school where the petitioner functions as Head Mistress is also thus transferred to the first respondent Panchayat. When that institution is so transferred the services of the employees in the said institution also automatically stand transferred. Therefore, the petitioner comes within an employee made mention of in Sec.181 so that the Panchayat can proceed by way of disciplinary action in accordance with the said Rules, the respondents submit. It is also stated that there is an entrustment of institution in terms of Ext.R1 (b). So the service of the petitioner stands transferred to the Panchayat. So the panchayat can proceed against the petitioner. 3. Ext.R1 (b) mentioned above does not improve the case of the respondents to have control over the petitioner. It is submitted by the counsel for the respondents that Ext.R1(b) has been issued in terms of Sec.176 of the Kerala Panchayat Raj Act. It reads as follows: Notwithstanding anything contained in any law for the time being in fore, the Government may, subject to the conditions as they may think fit to impose entrust, by an order published in the Gazette, to a panchayat The respondents do not have any case before me that while transferring the school where the petitioner functions as a Head Mistress, Ext.R1 (b) had been published in the Gazette. Before entrusting any scheme of Economic Development or Social Justice, it is necessary that the Government shall pass an order publishing in the Gazette. No such Gazette publication is brought to my notice. There is no case before me that Ext.R1 (b) had been published in the Gazette. Before entrusting any scheme of Economic Development or Social Justice, it is necessary that the Government shall pass an order publishing in the Gazette. No such Gazette publication is brought to my notice. There is no case before me that Ext.R1 (b) had been published in the Gazette. No order referred to in Ext.P1 had been published in the Gazette. No order referred to in Ext.P1 had been published in the Gazette specifying entrustment of the school where the petitioner functions as a Head Mistress. Thus there is no legal transfer or entrustment of the school where the petitioner functions as Head Mistress in terms of Sec. 176 of the Kerala Panchayat Raj Act. Therefore, the contention with reference to the said Section and Ext.R1 (b) to have control over the petitioner in terms of the Rules referred to above fails. 4. Equally so is the contention with reference to Sec.181 of the Kerala Panchayat Raj Act. The said section provides for lending of services of Government Officers and employees to the Panchayat as may be necessary for the implementation of any scheme, project or plan assigned or delegated to the Panchayat under this Act. The petitioner being a Government school teacher, is not working in any scheme, project or plan assigned or delegated to the Panchayat, as such school had not been transferred in terms of Sec.176 as found above. Therefore it cannot be said that the petitioner service had been lent to the Panchayat. When her services are not so lent to the panchayat, the President of the Panchayat cannot conduct an enquiry or make a report against the petitioner as contained in sub-section (2) thereof Equally the Panchayat cannot impose any penalty, exercising the powers vested under sub-section (3) thereof. On that reason also the action initiated by the President as well as the Panchayat against the petitioner is incompetent. 5. Any of the provision contained in the Kerala Panchayat Raj (Control over Officials) Rules, 1997 also does not enable the respondents to proceed against the petitioner. The official is defined in Rule 2 (d) thereof. As per the said definition an official include the Secretary or any other official appointed in the Panchayat service or anyone whose services had been lent to the Panchayat in terms of Sec.176(2) or Sec.181(1) of the Kerala Panchayat Raj Act. The official is defined in Rule 2 (d) thereof. As per the said definition an official include the Secretary or any other official appointed in the Panchayat service or anyone whose services had been lent to the Panchayat in terms of Sec.176(2) or Sec.181(1) of the Kerala Panchayat Raj Act. As already found above the petitioner does not come within either of these. Necessarily the petitioner is not an official as defined in Rule 2(d) of the said Rules. Rules 4 of the said Rules enables the Panchayat only to proceed against an official as defined in Rule 2(d). When the petitioner thus does not fall within such definition of an official, the respondents cannot proceed against the petitioner. Exts.P1 and P4 are therefore quashed. The original petition is allowed. Anyhow there will be no order as to costs.