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Madhya Pradesh High Court · body

2007 DIGILAW 537 (MP)

Prabhudayal Tiwari v. State of M. P.

2007-05-08

SURENDRA KUMAR

body2007
ORDER 1. Heard. 2. A common question is involved in WP No. 859/2007 (S) and W.P. No. 68/2007 (S). Hence they are being heard and decided by this common order. 3. Petitioner in WP No. 859/2007 (S) filed the petition challenging the resolution of Gram Panchayat dated 28.4.2006, by which Panchayat had decided to terminate the service of the petitioner. After the resolution, termination order has been passed, copy of the termination order has also been filed by the respondents No.4 and 5 along with their return as Annexure R 4/5-1. 4. The petitioner was appointed as Panchayat Karmi vide order dated 26.10.1995 Annexure P-2. Thereafter he was notified as Panchayat Secretary by the Collector vide notification dated 6.11.1995 Annexure P-3. As per the petitioner without giving him any opportunity of hearing and show cause notice, the Gram Panchayat passed the resolution with regard to termination of service of the petitioner. Copy of the resolution dated 28.4.2006, Annexure P-5 has been filed. Against the aforesaid resolution, the petitioner filed an appeal before the Sub-Divisional Officer under section 91 of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam; 1993. The SDO set aside the resolution of the Panchayat vide order dated 11.12.2006. Against the aforesaid order, the Gram Panchayat filed a petition before this Court which has been registered as WP No. 68/2007 (S) and heard today along with this present petition and both these petitions have been decided by this common order. 5. Respondent Panchayat in the return submitted that there were certain allegations of irrgularties against the petitioner hence, as show cause notice was issued to him. Copy of the show cause notice dated 6.4.2006 Annexure P 4/5-2 has been filed and because the petitioner did not submit any reply hence the resolution and order of termination of service of the petitioner has been passed by the Panchayat and thereafter service of the petitioner has been terminated. 6. Petitioner has taken a ground in the petition that as per the notification Annexure P-4 dated 2.4.2006 the Sub-Divisional Officer has to make an inquiry before termination. During the argument, learned counsel for the petitioner does not press this ground. 7. Learned counsel for the petitioner submits that the impugned resolution and order of termination is bad in law because these are non-speaking orders. During the argument, learned counsel for the petitioner does not press this ground. 7. Learned counsel for the petitioner submits that the impugned resolution and order of termination is bad in law because these are non-speaking orders. The petitioner has not been served any show cause notice, neither this fact has been mentioned in the resolution. 8. Contrary to this, learned counsel for respondents No.4 and 5 has submitted that the petitioner could not challenge the resolution and the petition is not maintainable because the order of termination has not been challenged. He has further submitted that petitioner has alternative remedy of appeal against the order of termination hence the petitioner has to avail alternative remedy. Learned counsel further submitted that a show cause notice was issued to the petitioner, he did not submit any reply hence the Panchayat decided to terminate the service of the petitioner. 9. From the facts of the case, it is clear that the Panchayat terminated the service of the petitioner vide resolution dated 28.4.2006. There is a dispute with regard to service of notice to the petitioner. Without entering into the aforesaid controversy, from the perusal of the resolution, copy of which has been filed as Annexure P-5, it is clear that it has not been mentioned in the resolution that what were the allegations of misconduct against the petitioner or whether any show cause notice was issued to the petitioner. It has only been mentioned that Sarpanch proposed to terminate the service of the petitioner and all other 17 Panchas agreed to terminate the service of the petitioner. Smt. Bhawna Tiwari, wife of the petitioner was against the resolution. On perusal of the resolution, it is clear that it is non-speaking one. In my opinion, when the Panchayat is terminating the service of any employee, it is obligatory on the part of the Panchayat to mention the facts in the resolution that what were allegations, whether any inquiry was conducted or whether any show cause notice was issued. The resolution passed by the Panchayat is non-speaking one hence, unsustainable in law. In my opinion, when the Panchayat is terminating the service of any employee, it is obligatory on the part of the Panchayat to mention the facts in the resolution that what were allegations, whether any inquiry was conducted or whether any show cause notice was issued. The resolution passed by the Panchayat is non-speaking one hence, unsustainable in law. The argument advanced by the learned counsel for the respondents No.4 and 5 that the petitioner has not challenged the order of termination hence, the petition is not maintainable, cannot be accepted because the petitioner has challenged the resolution and as per petitioner at that time the order of termination was not served on him. Apart from this, copy of the termination order has been filed by respondents No.4 and 5. Petitioner has also prayed in the relief clause that any other order or direction which this Hon'ble Court may deem fit and proper be passed in his favour. Looking to the facts of the case, in my opinion, in the interest of justice, petition is maintainable because termination of the petitioner is patently illegal. The other ground raised by the learned counsel that petitioner has not availed alternative remedy can also not be sustainable because as noticed above, the petitioner approached before the SDO and SDO recorded the findings that there was no proper meeting of the Panchayat and the resolution is illegal. The rule of availing alternative remedy is discretionary one as held by the Hon'ble Supreme Court reported in (2005) 8 SCC 264 in the case of U.P. State Spinning Co. Ltd. v. R.S. Pandey and another: "Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission [ AIR 1954 SC 207 ], Sangram Singh v. Election Tribunal, Kotah [ AIR 1955 SC 425 ], Union of India v. T.R. Varma [ AIR 1957 SC 882 ], State of U.P. v. Mohd. Nooh [ AIR 1958 SC 86 ] and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras [ AIR 1966 SC 1089 ], held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. Nooh [ AIR 1958 SC 86 ] and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras [ AIR 1966 SC 1089 ], held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted." Looking to the facts of the case, in my opinion, this is a fit case where the aforesaid rule of availing alternative remedy can be waived. 10. Learned counsel for the respondents also submitted that the wife of the petitioner is a member of Panchayat hence the petitioner could not continue as Panchayat Secretary. On this ground the, service of the petitioner has not been terminated. Hence that point cannot be looked into in the present proceedings. 11. Consequently, petition of the petitioner is allowed. The impugned order of termination Annexure R 4/5-1 dated 28.4.2006 and the resolution Annexure P-5 dated 28.4.2006 are hereby quashed. The respondents are free to conduct independent inquiry as per law, if they think it proper. 12. The petition filed by the Gram Panchayat i.e. WP No.68/2007 (S) is hereby dismissed because it has become infructuous in view of the order passed in WP No.859/2007 (S). Respondents are directed to take back the petitioner in service immediately. No order as to cost.