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2001 DIGILAW 512 (ORI)

ADWAIT CH. JENA v. KHANDAHATA GRAM PANCHAYAT

2001-11-22

A.S.NAIDU

body2001
JUDGMENT : A.S. Naidu, J . 1. This writ application under Articles 226 and 227 of the constitution of India is filed challenging the order dated 20.10.1990 passed by the Collector, puri in G.p. Appeal No. 1 of 1985 vide Annexure -9 dismissing the same and confirming the order passed by the Sub-divisional officer, puri. 2. The case has a chequered career, in as much as this is the second writ application filed by the petitioner. The short facts which are necessary to appreciate the dispute are stated hereinbelow: The petitioner was appointed as Secretary of Khandahata Gram panchayat in the year 1980. It is averred that he was discharging his duties sincerely, honestly and to the best satisfaction of the authorities. Opposite party No. 4 was elected as the Sarpanch of khandahata Gram panchayat, (opposite party No. 1) in January 1984. It is stated that in order to encash the past rivalry, opposite party No. 4 started putting several obstacles on the way of the petitioner's lawful discharge of duties. The petitioner also became a target of the rage of opposite party No. 4 as he declined to carry out the illegal orders and unreasonable demands made by the said opposite party. While matter stood thus, on 25.10.1984 the petitioner fell ill and after obtaining leave proceeded to puri for treatment. Taking advantage of the petitioner's absence, without serving any notice upon him, opposite party No. 4 convened a meeting of the Gram panchayat on October 27, 1984 and became successful in passing a resolution resolving to initiate disciplinary action against the petitioner. It is alleged in the writ application that six members of the Gram panchayat objected to the resolution, but opposite party No. 4, being the Sarpanch, managed to get the resolution passed, on the basis of the alleged resolution dated October 20, 1984, five charges were framed and the petitioner was directed to show cause within 15 days as to why disciplinary action shall not be initiated against him. For the sake of brevity, the charges are quoted hereinbelow : 1. Secretary had not submitted the income expenditure statement to the Block for the year 1983-84 as called for in Kanas Block Letter No. 1041 dated 3.5.1981. Such non-submission indicated that large sums of money had been misappropriated. 2. For the sake of brevity, the charges are quoted hereinbelow : 1. Secretary had not submitted the income expenditure statement to the Block for the year 1983-84 as called for in Kanas Block Letter No. 1041 dated 3.5.1981. Such non-submission indicated that large sums of money had been misappropriated. 2. Necessary papers of Grama panchayat were not being produced by the Secretary before the Sarpanch for action needed thereon. 3. Secretary had been remaining absent from Grama Panchayat officer all days of the month. 4. Secretary had not been collecting taxes of the Grama panchayat as per resolution of the Grama panchayat. 5. The Secretary had collected large sum of money and instead of depositing the same on the Grama Fund has misappropriated the same. 3. The petitioner, an obedient servant as he is, immediately after receipt of the notice submitted his show cause denying the allegations and explaining the true facts. It was also specifically contended that all the charges are vague and in absence of specific instances, it is not possible to submit a full-fledged show cause. It was also specifically stated in the show cause that the resolution was contrary to the provisions of Rule 236(1) and proviso to Rule 216(A) of the Orissa Gram panchayat Rules, 1968. Surprisingly however, without conducting any enquiry and without according any opportunity to the petitioner to present his case, he was removed from service by order dated December 27, 1984 (Annexure-6). The petitioner preferred an appeal u/s 133(1) of the Orissa Gram Panchayat Act before the Sub-divisional officer, puri challenging the order of removal from services on several grounds. The said appeal was registered as G.P. Appeal No. 1 of 1985. By order dated March 23, 1985, (Annexure-7) the Sub-divisional officer, dismissed the appeal without taking into account the contentions raised and grounds taken by the petitioner as well as ignoring the relevant materials and errors which were apparent on the face of the record, committed the Gram panchayat, though the same were specifically pointed out in the appeal memo. Being aggrieved by the order passed by the Sub-divisional Officer dismissing G.R Appeal No. 1 of 1985, the petitioner preferred an appeal before the Collector, Puri u/s 133(2) of the G.R Act. Being aggrieved by the order passed by the Sub-divisional Officer dismissing G.R Appeal No. 1 of 1985, the petitioner preferred an appeal before the Collector, Puri u/s 133(2) of the G.R Act. The Collector, Puri unfortunately however, dismissed the appeal for non-prosecution and the petitioner was constrained to approach the portals of this Court by filling O.J.C. No. 382 of 1990. The said writ application was disposed of on May 14, 1990. This Court specifically directed the Collector Puri to hear the appeal afresh after giving opportunity to the petitioner (Annexure-8). In consonance with the order passed by this Court, the Collector, Puri once aaain took up hearing of the said G . P. Appeal and disposed of the same by the impugned order dated October 20, 1990, Annexure-9. The petitioner in the present writ application is challenging the said order mainly on the ground that the collector who is the final court of facts has disposed of the appeal without due application of mind and without reassessment of the facts of the case. 4. The petitioner contends that the charge-sheet being vague the same violates the proviso to Rule 216 (A) of the Orissa Gram panchayat Rules and the same is otherwise illegal. The petitioner also submits that charge Nos. 1, 3 and 5 being beyond the resolution dated 27.10.1984 should have been ignored. It is also contended that charge No. 2 besides being vague, is untenable, inasmuch as, there being no office building of the Gram Panchayat at the relevant time, all the registers of the Gram panchayat were in the custody of the sarpanch in consonance with Section 123-B of the Orissa Gram panchayat Act. It is further contended that charge No .4 being not specific as observed by the Sub-divisional officer, and no notice having been issued regarding the said charge, the finding arrived at is otherwise illegal. On the basis of the aforesaid grounds, the petitioner contends that Annexure-1, the charge-sheet is not sustainable in the eye of law, so also the order of termination. 5. The petitioner also submits that the order terminating the petitioner's service having been passed without according any opportunity to the petitioner to substantiate his case, suffers from the vice of non-consideration of materials as well as non-observance of the principle of justice and equity. 5. The petitioner also submits that the order terminating the petitioner's service having been passed without according any opportunity to the petitioner to substantiate his case, suffers from the vice of non-consideration of materials as well as non-observance of the principle of justice and equity. The petitioner further contends that the sub-divisional officer without taking into consideration the submissions made and grounds taken by the petitioner, more particularly the vagueness of the charges as well as variance of the show-cause vis-a-vis the resolution dated 24.10.1984 and without enquiring whether the resolution was passed by the Gram panchayat in the meeting held on 19,11.1984 mechanically refused to set aside the order of termination and the said order in Annexure-7 is unjust and illegal. So far as the order passed by the collector vide Annexure-9 is concerned, the petitioner submits that the collector being the final court of facts acted illegally and with material irregularity is not scrutinising the entire records and arriving at a definite and independent conclusion as required under law. It is submitted that perusal of the order Annexure-9 itself would reveal that the collector did not apply his mind in proper perspective nor referred to any of the decisions cited by the petitioner. The collector has also not arrived at an independent finding with regard to the grounds raised, more particularly the vagueness of the charges, variance within the charge and the resolution and last but not the least, not according any opportunity to the petitioner while conducting enquiry. According to Mr. Mohanty, learned counsel for the petitioner, it was incumbent upon the collector to adjudicate the entire dispute on the basis of the materials presented before him while exercising the power u/s 133(2) of the Orissa Gram panchayatAct. 6. Though notice was issued to the opposite parties, no counter affidavit has been filed. In course of hearing, observation made by a Division Bench of this court in the case of Dinabandhu Swain v. State of Orissa and Ors. reported in 1997(XXI) OLR 229 was brought to the notice of the court and it was submitted that the said decision is contrary to the decision of this court in the case of Kasinath Padhi v. Social Extension Officer, Gumma Block and Ors. reported in 1997(XXI) OLR 229 was brought to the notice of the court and it was submitted that the said decision is contrary to the decision of this court in the case of Kasinath Padhi v. Social Extension Officer, Gumma Block and Ors. reported in 1996(XXI) OLR 661 .The point in issue raised was whether the secretary of a Grama Panchayat holds a civil post under the State Government, and as to whether the dispute relating to his service conditions is to be adjudicated by the Orissa Administrative Tribunal or by the High Court. By order dated 23.9.1997 the point of dispute was referred to a larger Bench for adjudication. The Full Bench of this court by judgment dated 15.5.1998 resolved the dispute and held that the relationship between Gram Panchayat and the Secretary is that of master and servant and the State cannot be said to be the master of the tatter. That being the position, it was held that the Secretary of the Gram Panchayat does not hold a civil post under the State Government and is not a Govt. Servant. After resolving the dispute by the Full Bench, the case was once again places for hearing. 7. Admittedly, the service of the petitioner who was serving as Secretary of the Gram Panchayat has been terminated. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law. The order of termination should always be preceded by a enquiry which should be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice is an integral part of the guarantee of equality assured by Article 14 of the constitution of India. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes at arbitrary action, it is not the form of the action but the substance of the order that is to be looked into. It is open to the court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Article 14 strikes at arbitrary action, it is not the form of the action but the substance of the order that is to be looked into. It is open to the court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the affect thereof is the end result. The supreme Court in the case of D.K. Yadav Vs. J.M.A. Industries Ltd., observed as follows : "It is thus well settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/ workman fairplay requires that a reasonable opportunity to putforth his case is given and domestic enquiry conducted complying with the principles of natural justice." In the present case number of allegations have been levelled by the petitioner with regard to the procedure adopted by the Gram Panchayt before passing the termination order. The petitioner has also attacked the charges framed, and procedure adopted during enquiry as well as the genuiness of the resolution by which the Gram Panchayat resolved to initiate a proceeding against the petitioner. A perusal of the impugned orders reveals that the authorities have not taken pain to examine the grounds taken by the petitioner whose service has been terminated and whose right to livelihood has been infringed. It is no more resintegra that the collector being the appellate authority is the final court of facts. An onerous duty is vested upon the appellate authority to re-assess the materials available in the proceeding so as to enable it to arrive at an independent conclusion either agreeing with the finding of the disciplinary authority or otherwise. The appellate authority has a legal duty to deliberate about and plunder over as well as carefully examine the case of the appellant on merits and adjudge it either by confirming, enhancing, reducing or setting aside the punishment imposed by the disciplinary authority. The appellate authority has a legal duty to deliberate about and plunder over as well as carefully examine the case of the appellant on merits and adjudge it either by confirming, enhancing, reducing or setting aside the punishment imposed by the disciplinary authority. The Supreme Court while dealing with the orders passed by the appellate authority dismissing statutory appeals, preferred against the orders which prime facie seriously prejudice the right of the aggrieved party without giving reasons held that the said procedure is a negation of the rule of law. (See. Mahabir Prasad Santosh Kumar Vs. State of Uttar Pradesh and Others, In the present case, the order of termination has been passed as long back as in the year 1985 and the matter has become almost stale, but then, as has been observed by the Supreme Court in D.K. Yadav's case( supra), the right of livelihood of the petitioner has been curtailed. I, therefore, with much hesitation, quash the impugned order in Annexure-9 and direct the collector, Puri to dispose of the appeal afresh and deal with all the points raised by the petitioner. Let the petitioner appear before the collector, Puri on December 7, 2001 on which date the collector, Puri shall do well to fix a date or dates according to his convenience and dispose of the appeal on merits as expeditiously as possible. The writ application is disposed of accordingly. No cost. 8. Writ petition disposed of