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2005 DIGILAW 383 (HP)

GRAM PANCHAYAT, MANPUR DEVRA v. STATE OF H. P.

2005-10-10

K.C.SOOD, V.K.JHANJI

body2005
JUDGMENT V.K. Jhanji, J. (Oral) :- Vide a resolution dated 24.6.2004, Gram Panchayat, Manpur Devra, (hereinafter referred to as Gram Panchayat) took a decision to remove Rajinder Singh, son of Sh. Jond Singh, respondent No. 3 from the post of Panchayat Sahayak. Respondent No. 3 being aggrieved of the decision of the Gram Panchayat removing him from the post of Panchayat Sahayak, challenged the same in appeal before respondent No. 2 who, vide order dated 9.1.2005, has not only set aside the Resolution No. 4 dated 24.6.2004 removing respondent No. 3 as Panchayat Sahayak, but also has set aside Resolution No. 2, dated 3.9.2004 appointing respondent No. 4. Gram Panchayat, being aggrieved from the order dated 24.6.2004 passed by respondent No. 2 has filed the present writ petition. 2. In brief, the facts are that respondent No. 3 came to be appointed as Panchayat Sahayak in December, 1999. Gram Panchayat received many complaints from the residents of the village in regard to the working of respondent No. 3. In the complaints, the allegations were in regard to the bungling of Panchayat funds, committing forgery and misappropriating Panchayats money. The allegations were inquired into by the Gram Panchayat. Records were verified. On inquiry, the Gram Panchayat found that respondent No. 3 not only had committed forgery in the Panchayat record, but had misappropriated the Panchayat funds. He had received more money, but in the Panchayat record had shown having received lesser amount. A show cause notice was issued to respondent No. 3 to explain his stand, who in his written reply to it, admitted that he had issued receipts on blank papers and had not deposited the money with the Panchayat. He further admitted that he had issued receipts for larger amount on Panchayat Receipt Book, but showed lesser amount in the Panchayat record and deposited the lesser amount. After receipt of the reply from respondent No. 3 and giving an opportunity of hearing, Panchayat passed Resolution dated 24.6.2004, vide which it was unanimously decided to remove respondent No. 3 as Panchayat Sahayak. It appears that around the same time, a separate inquiry was being conducted by respondent No. 2 about the working of respondent No. 3 and that inquiry was on public complaint received by the office of respondent No. 3. It appears that around the same time, a separate inquiry was being conducted by respondent No. 2 about the working of respondent No. 3 and that inquiry was on public complaint received by the office of respondent No. 3. The Gram Panchayat, in the meantime, had forwarded the resolution dated 24.6.2004, alongwith the record which it had against him. Respondent No. 2 inspected the entire record and after fully satisfying himself about the correctness of resolution passed by Gram Panchayat vide his order dated 30.4.2004, observed that the powers used by the Gram Panchayat were fully justified. It appears that after passing of order dated 30.7.2004 by respondent No. 2, respondent No. 3 was removed from the post of Panchayat Sahayak with effect from 31.7.2004 and in terms of Rules salary for the month of August in lieu of notice was paid to him. 3. Respondent No. 3 challenged the decision the Gram Panchayat in removing him from the post Panchayat Sahayak in appeal before respondent No.2, who vide order dated 19.1.2005, set aside the resolution No. 4 dated 24.6.2004 passed by the Gram Panchayat, removing respondent No. 3 as Panchayat Sahayak. Hence the petitioner has preferred the present writ petition challenging the aforesaid order dated 19.1.2005. 4. In response to the notice in the present writ petition, respondents 1 and 2, and 3 have filed their replies. Respondents 1 and 2 in their reply, have stated that since the allegations against respondent No. 3 were not proved in accordance with the Rules, respondent No.2 came to the conclusion that the resolution dated 24.6.2004 was not in accordance with law. In the reply, respondents 1 and 2 have not denied that respondent No. 3 had misappropriated the amount of the Panchayat. In fact respondents 1 and 2 have admitted in their reply that amount was misappropriated, but have stated that since the same has been deposited by respondent No. 3, it was within the power of respondent No. 2, functioning as an appellate authority to pass an appropriate order in the facts and circumstances of the case. In fact respondents 1 and 2 have admitted in their reply that amount was misappropriated, but have stated that since the same has been deposited by respondent No. 3, it was within the power of respondent No. 2, functioning as an appellate authority to pass an appropriate order in the facts and circumstances of the case. Respondent No. 3 in his reply has stated that his services were illegally and arbitrarily terminated though he continued in service till August 2004 and so resolution dated 24.6.2004 at no point of time was given effect to Respondent No. 3 has further stated that the proceedings against him were not taken in accordance with Rule 137(3) of the HP. Panchayati Raj General Rules, 1997 (hereafter referred to as "197 Rules"). It is also stated that neither order terminating services of the petitioner was passed or issued or served upon respondent No. 3, nor was he given due opportunity to prove his defence. 5. Learned counsel appearing on behalf of the petitioner contended that no provision of 1997 Rules including Rule 137(3) or CCS Conduct Rules were violated while passing resolution dated 24.6.2004. Learned counsel further contended that it was well within the knowledge of respondent No. 3 that he had been removed from the post of Panchayat Sahayak and for that matter in response to notice dated24.8.2004, he deposited the amount which was outstanding against him. In regard to the impugned order learned counsel for the petitioner contended that on three counts, resolution dated 24.6.2004 has been set aside by respondent No. 2, i.e. (i) that merely passing a resolution to remove respondent No. 3 was not enough, as the allegations against him had to be brought to his notice; (ii) that despite passing of resolution dated 24.6.2004, respondent No.3 continued serving till August 2004 and salary allowances for that period was also paid to him, and therefore, the appointment of new Panchayat Sahayak was contrary to the Rule and (iii) that Gram Panchayat had not provided a charge sheet to the respondent No. 3 in due time and in accordance with Rule 137(2) of the 1997 Rules. Learned counsel contended that all the three grounds taken by respondent No. 2 to set aside resolution dated 24.6.2004are totally erroneous, inasmuch as respondent No. 3 not only admitted the allegations against him, but also in response to the notice dated 24.8.2004, deposited the amount which he had misappropriated and in such circumstances, no prejudice has been caused to him, nor it can be said that Rule 137 had not been followed in removing him from the post of Gram Sahayak. 6. On the other hand, learned counsel for respondent No. 3, contended that the respondent No. 2, as an appellate authority was well within its jurisdiction to go into the legality of the resolution and having found on facts that the resolution was not in accordance with the Rules, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India should not interfere with the order of respondent No. 2. 7. We have heard the learned counsel for the parties at length and have carefully gone through the record of this case. 8. Sub Rule (2) of Rule 137 of 1997 Rules reads as under: "(2) A Panchayat for good and sufficient reasons may impose the following penalties on its employees. (i) Censure. (ii) Recovery of whole or part of any pecuniary loss caused to the Panchayat by negligence or breach of orders of the Panchayat. (iii) Removal or dismissal of employees: Provided that before imposing any penalty the employees shall be informed of the specific charges against him and shall be given a reasonable opportunity to explain his position or produce any evidence." 9. The question which arises for the consideration of this Court is whether respondent No. 3 had been given due and reasonable opportunity of being heard and to produce his evidence. Admittedly, on receipt of the complaint against the petitioner in regard to the bungling of the Panchayat funds, committing forgery and misappropriating Panchayats money, the record was examined by the Panchayat and on finding merit in the complaint, issued a show cause notice to respondent No. 3 to explain his stand. Respondent NO 3 in his reply to the show cause notice admitted all the allegations leveled against him. Respondent NO 3 in his reply to the show cause notice admitted all the allegations leveled against him. He not only admitted that he had issued receipts on blank papers, never deposited amount with the Panchayat, but also admitted that he had issued receipts for larger amount on Panchayat Receipt and showed lesser amount against the same receipt number in the Panchayat record and deposited the lesser amount. Respondent No 3 having admitted the charges against him, the principles of natural justice cannot be extended in a case like the present one, when a person admits his guilt. Giving of an opportunity is a check and balance concept that no-ones right be taken away without giving him opportunity. But this cannot be in a case where allegations and charges are admitted and no possible defence is placed before the authority concerned. The reasoning of the Panchayat Officer to set aside the resolution dated 24.6.2004, under no circumstances, can be accepted. The Panchayat after passing resolution dated 24.6.2004 forwarded the same alongwith the record to respondent No. 2, who too was enquiring into the complaint against respondent No. 3 received by his office. Respondent No.2 approved of the action of the Panchayat on 30.7.2004 and it is only thereafter that the services of respondent No. 3 came to be terminated and he was given one months advance salary for the month of August, in view of notice. Vide notice dated 24.8.2004, respondent No. 3 was called upon to deposit the amount which he had misappropriated and it is in response to the said notice that he deposited the amount. The deposit was not voluntary, but was in response to the notice dated 24.8.2004. In such circumstances, reasoning of respondent No. 2 in his impugned order that lenient view is being taken, because respondent No. 3 has deposited the money, is not justifiable. A person to whom a duty had been entrusted to collect the Panchayat funds cannot be permitted to continue in service on his committing the breach of duty by misappropriating the Panchayats funds or amount belonging to the Panchayat. 10. In view of the above, writ petition is allowed and impugned order dated 19.1.2005 (Annexure P-8), is set aside. No costs.