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Madhya Pradesh High Court · body

2002 DIGILAW 180 (MP)

Naresh Singh v. State of M. P.

2002-02-15

ARUN KUMAR MISHRA

body2002
ORDER Arun Kumar Mishra, J. 1. Heard and record perused. The petitioner is assailing the order of his removal from the post of Panchayat Karmi dated 19-1-1998 (annexure P/2) by the Chief Executive Officer, Janpad Panchayat, Isagarh distt. Guna. The order was issued pursuant to the order passed by the Collector, distt. Guna on 5-1-1998 which was adopted by the Gram Panchayat, Ajleswar vide the resolution dated 10-1-1998. 2. The petitioner was appointed as Panchayat Karmi by the Gram Panchayat, Ajleswar on an honorarium of Rs. 500/- per month. The order was issued on 4-7-1996 (annexure P/1). 3. The petitioner submits that on receiving the letter from the Chief Executive Officer, Isagarh, he came to know that his services were terminated by the Gram Panchayat, Ajleswar as per its resolution dated 10-1-1998. He preferred a revision before the Commissioner, Gwalior. The revision was dismissed on 20-10-1998 (annexure P/4). The petitioner also submits that he was removed from service without affording an opportunity of hearing. He was not issued a show cause notice. 4. The respondent No. 3 in its return contends that the petitioner has not challenged the order passed by the Collector under section 85(1) M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the Adhiniyam) and the order of the State Government under section 85(2) of the Adhiniyam. The State Government has approved the order suspending the resolution of the Gram Panchayat, Ajleswar by which petitioner was appointed. It was not open to the Commissioner to deal with the order passed by the State Government exercising the power under section 85 of the Adhiniyam. Petitioner has not approached this Court with clean hands. His appointment was not made by the Gram Panchayat, Ajleswar and no resolution was passed in accordance with the procedure prescribed under the Adhiniyam. Proceedings dated 3-7-1996 have been manipulated in the proceedings register. There is no signature of any of the Panchas or Sarpanch in the proceedings of the aforesaid date. Therefore, he was never appointed as Panchayat Karmi by the Gram Panchayat. The appointment letter was issued by the Acting Sarpanch, Mr. Brijendra Singh who was holding the charge of office under section 38 of the Adhiniyam. He had no authority to issue the appointment order under his signature. The writ petition is misconceived which deserves to be dismissed. 5. Therefore, he was never appointed as Panchayat Karmi by the Gram Panchayat. The appointment letter was issued by the Acting Sarpanch, Mr. Brijendra Singh who was holding the charge of office under section 38 of the Adhiniyam. He had no authority to issue the appointment order under his signature. The writ petition is misconceived which deserves to be dismissed. 5. At this stage, it may be noticed that it is not disputed by the respondent No. 3 that the petitioner was not heard at any point of time before passing the order of his removal. What has been stated is that the Gram Panchayat was heard by the State Government. Since the resolution was found to be forged, it was cancelled by the State Government. 6. The respondent No. 5 has filed a separate return. It was contended by him that at present he was not an office bearer of the Gram Panchayat, Ajleswar. But at the time when the petitioner was appointed on the post in question, he was discharging the duties attached to the Office of Sarpanch of the Gram Panchayat. The Gram Panchayat circulated the agenda amongst the members and obtained their signatures on the agenda. Thereafter, following the selection process, appointment order was issued in favour of petitioner as Panchayat Karmi as per Government policy. Appointment order was rightly issued in favour of the petitioner. A copy of agenda dated 26-6-1996 was filed (Annexure R/5-2). The Janpad Panchayat approved the proceedings. The petitioner was also sent to the training. His training certificate is annexure R/5-4. 7. The learned counsel for the petitioner submits that no enquiry was held by the respondent authority while removing the petitioner from the post of Panchayat Karmi. It is also submitted that the petitioner was not heard in the matter and an unilateral order of his removal was communicated to him which is violative of principles of natural justice. 8. Thus, the argument of the learned counsel for the petitioner is that the basic minimum requirement of issuance of show cause notice was not followed. Further, the Collector or the State Government never heard the petitioner before suspending the resolution of the Gram Panchayat in question. 9. Shri M.P. S. Raghuvanshi, learned counsel appearing on behalf of the Gram Panchayat vehemently submits that it is a case of procurement of appointment in totally illegal manner. Further, the Collector or the State Government never heard the petitioner before suspending the resolution of the Gram Panchayat in question. 9. Shri M.P. S. Raghuvanshi, learned counsel appearing on behalf of the Gram Panchayat vehemently submits that it is a case of procurement of appointment in totally illegal manner. According to him, opportunity of hearing would be an empty formality. Thus, the facts are writ large and this Court should not issue any writ in favour of the petitioner. The appointment of petitioner was not made by Gram Panchayat. His other submission is that the order passed by the Collector approved by the State Government under section 85 of the Adhiniyam has not been challenged in the writ petition, as such, no interference can be made by this Court particularly when the petitioner has not approached this Court with clean hands. 10. Shri S.G. Chitnis, learned Dy. Government Advocate supports the version deposed by the Gram Panchayat and also the orders passed by the Collector and the State Government. 11. Whereas the learned counsel appearing for the respondent No. 5 supports the cause espoused by the petitioner and contends that his appointment was rightly made. The members of the Gram Panchayat appended their signatures. The Janpad Panchayat approved of the same, therefore the appointment of the petitioner was valid. 12. After hearing the learned counsel for the parties, I am of the opinion that the action of removal of petitioner cannot be sustained for the singular reason that he was not afforded the opportunity of hearing either by the Collector or by the State Government, Chief Executive Officer, Janpad Panchayat, Isagarh or by the Gram Panchayat, Ajleswar before issuing the order of his removal on the post in question. 13. 13. Section 85 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 provides that power to suspend execution of orders etc., (1) The State Government or the prescribed authority may by an order in writing and for reasons to be stated therein suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a Panchayat, if in his opinion, - (a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised; (b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or is contrary to any law; or the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely - (i) to cause loss, waste or misapplication of any money or damage to any property vested in the Panchayat; (ii) to be prejudicial to the public health, safety or convenience; (iii) to cause injury or annoyance to the public or any class or body of persons; Or (iv) to lead to a breach of peace. 14. Proviso to section 85(2) the Adhiniyam clearly provides that no order of the prescribed authority passed under Sub-section (1) shall be confirmed, set aside, revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order. However in the facts of this case when action was taken by the respondents under section 85 of the Adhiniyam. When petitioner's removal was the ultimate result of action under section 85, he was required to be heard. 15. In the present case, since the opportunity was not afforded to the petitioner while suspending the resolution vide which he was appointed on the post in question particularly when he had already served for one and half years, he should have been heard, and an enquiry could have been conducted after hearing what he has to say. Petitioner could have been given opportunity to defend and to submit his case where the disputed question of facts were involved in the matter. 16. I find that there is violation of Articles 14 and 16 of the Constitution of India in the present case as no opportunity of hearing was afforded. Petitioner could have been given opportunity to defend and to submit his case where the disputed question of facts were involved in the matter. 16. I find that there is violation of Articles 14 and 16 of the Constitution of India in the present case as no opportunity of hearing was afforded. Thus, the order issued is entirely bad in law and is liable to be quashed. As per proviso to section 85 of the Adhiniyam, reasonable opportunity of being heard against the proposed order could have been afforded not only to the panchayat concerned but also to the person affected by it. The action under section 85 of the Adhiniyam is not sustainable and consequently removal based on it particularly when the petitioner had served for one and half years, he should have been afforded opportunity of hearing. The law is well settled that it is the basic minimum requirement of issuance of show cause notice and the incumbent is required to be heard and an enquiry may be conducted which may be necessary in the facts and circumstances of each case. That was not done as held by the Supreme Court in Ku. Neelima Misra vs. Dr. Harinder Kaur Paintal and others, AIR 1990 SC 1402 , Shrawan Kumar Jha and others vs. State of Bihar and others AIR 1991 SC 309 , Basudeo Tiwary vs. Sido Kanhu University and others AIR 1998 SC 3261 , State of M.P. and others vs. Shyama Pardhi etc., AIR 1996 SC 2219 , S. Ashok Kumar and others vs. State of Tamilnadu and others 1994 (2) SCC 631. A similar view was taken by a Division Bench of this Court in the case of Mata Prasad Sahu vs. State of M.P. and others, 2000 (3) MPHT 408 . 17. I find no merit in the submission that petitioner has not challenged the order under section 85 of the Adhiniyam. He had challenged the ultimate order based on proceedings under section 85 of the Adhiniyam. Thus the validity of the action taken under section 85 of the Adhiniyam is directly involved in the matter. 18. It is open to the Gram Panchayat or the concerned authority to take appropriate action in accordance with law after hearing the petitioner. 19. The writ petition is allowed to the extent indicated hereinabove. Thus the validity of the action taken under section 85 of the Adhiniyam is directly involved in the matter. 18. It is open to the Gram Panchayat or the concerned authority to take appropriate action in accordance with law after hearing the petitioner. 19. The writ petition is allowed to the extent indicated hereinabove. With respect to the back wages, it is directed that it will depend upon the outcome of the enquiry conducted after hearing the petitioner. In case it is found that the appointment of the petitioner was valid, he is entitled to the back wages. If it is found that the appointment was illegally procured, no back wages shall be granted from the date of his removal till today. 20. Let the matter be decided by the concerned authority within a period of three months from the date of production of a certified copy of this order. Costs on parties.