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Madhya Pradesh High Court · body

2007 DIGILAW 469 (MP)

Subhash Raut v. State of M. P.

2007-04-20

DIPAK MISRA, S.R.WAGHMARE

body2007
ORDER Misra, J 1. Questioning the soundness of the order dated 16.4.2007 passed by the learned Single Judge in W.P. No.4909/2007, the appellant-petitioner has preferred this intra-Court appeal under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for brevity the 'Act'). 2. The facts which are imperative to be stated are that the appellant-petitioner was appointed as a Panchayat Karmi on 10.11.1995. While holding the said post because of his performance he was declared as Secretary of the Gram Panchayat Patharwada on 10.8.1999. While he was functioning on the said post, by order dated 28.3.2007 (Annexure A-5), the Collector, Balaghat on the basis of the recommendation of Chief Executive Officer, Janpad Panchayat Katangi passed an order denotifying his appointment as the Secretary of the Gram Panchayat Patharwada, Janpad Panchayat Katangi, as a consequence of which, his service stood terminated. 3. Questioning the correctness of the aforesaid order, the appellant-petitioner preferred the writ petition. Before the learned Single Judge, it was contended that the Collector, Balaghat before passing the aforesaid order has not followed the principles of natural justice. The learned Single Judge declined to interfere on the ground that an appeal does lie to the Commissioner, Jabalpur Division and he is available to deal with the appeal. 4. It is submitted by Mr. K.K. Pandey, counsel appearing for the appellant that there has been violation of principles of natural justice and if the order is properly read, it would show that stigma is attached to the appellant inasmuch as the Collector, Balaghat while passing the impugned order has referred to the recommendations of the Chief Executive Officer, Janpad Panchayat Katangi, who had commented on his integrity and his conduct. It is put forth by him that the applicability of principles of natural justice are to be read under the provisions of Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993.1t is urged by him that when an adverse order had been passed which visits with serious civil consequences, a person has to be afforded an opportunity of being heard and the same being done away with, the order depicts total arbitrariness and hence, requires to be lanceted. 5. Mr. 5. Mr. Jaideep Singh learned Deputy Government Advocate appearing for the State supported the order passed by the learned Single Judge contending, inter alia, that when an alternative remedy is available, it is incumbent upon the appel1ant to prefer the appeal and not to approach the writ Court under Article 226 of the Constitution of India. 6. First it is to be detem1ined whether there has been violation of principles of natural justice. On scrutiny of Annexure A-5, it is clear as day that the appellant-petitioner was not afforded an opportunity to explain his stand. Section 69 of the Adhiniyam deals with the appointment of Secretary. The said provision does not exclude either expressly or impliedly the principles of natural justice. 7. We may state with profit that Mr. K.K. Pandey has brought to our notice a circular dated 22.9.2003 issued by the State Government to the Collectors of the districts wherein it has been mentioned that before denotification of a Panchayat Karmi or Secretary, he should be given adequate opportunity of being heard. If the entire factual scenario is appreciated, there can be no scintilla of doubt that the doctrine of audi alteram partem is attracted to a case of this nature. 8. As has been stated above, the learned Single Judge has thrown the writ petition at the threshold on the ground that the appellant could have availed of the alternative remedy. In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others [ (1998) 8 SCC 1 ], a two-Judge Bench of the apex Court in paragraphs 14 and 15 has expressed the opinion as under: "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental rights contained in part III of the Constitution but also for 'any other purpose'. 15. Under Article 226 of the Constitution the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain writ petition. 15. Under Article 226 of the Constitution the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in the last three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the Constitutional law as they still hold the field. 9. In view of the aforesaid pronouncement of law and in view of the circular which mandates following of the principles of natural justice and regard being had to the nature and tenor of the order passed vide Annexure A5, we have no hesitation in our mind that the same has to pave the path of extinction because of violation of principle of natural justice and accordingly we quash the same. 10. In the result, the writ appeal is allowed. The order passed by the learned Single Judge is set aside. The order passed by the Collector, Balaghat removing the appellant from the post of Secretary as per order dated 28.3.2007 contained in Annexure A-5 is quashed and he shall be deemed to be in service. However, he shall not be entitled to back wages. In the peculiar facts and circumstances of the case there shall be no order as to costs.