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Madhya Pradesh High Court · body

2008 DIGILAW 1392 (MP)

Kamlesh Dubey v. State of M. P.

2008-12-01

A.P.SHRIVASTAVA, K.K.LAHOTI

body2008
ORDER 1. This petition is directed against the order dated 15.10.2008 (Annexure P-I) by which the Additional Commissioner, Gwalior Division, Gwalior refused to grant stay against an order dated 6.10.2008 (Annexure P-2) by which the Collector, Ashok Nagar placed the petitioner under suspension, with a further direction that the petitioner shall be entitled for subsistence allowance and his headquarter shall be at the office of Janpad Panchayat, Chanderi. 2. The learned counsel for the petitioner submitted that the Collector Ashok Nagar by the impugned order has not only suspended the petitioner but also directed that the petitioner shall be entitled for subsistence allowance, meaning thereby the petitioner, who was also a Panchayat Karmi, was suspended even from the post of Panchayat Karmi. The Collector, who was an appointing authority under section 69(I) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 was not empowered to suspend the petitioner from the post of Panchayat Karmi. The provision of M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 though provides a provision of suspension under rule 4, but it has not empowered the Collector to suspend the petitioner even from the post of Panchayat Karmi. It is submitted that without issuance of any show cause notice or extending an opportunity of hearing, the petitioner was placed under suspension, which order deserves to be stayed till the decision of this petition. 3. Shri Vivek Khedkar, Government Advocate appearing for the State, supported the order and submitted that on finding serious allegations against the petitioner, he was placed under suspension. There were serious allegations against the petitioner that the petitioner had made excessive expenses in respect of National Rural Employment Guarantee Scheme (NREGS) and because of this he was placed under suspension. The provision of suspension is provided under rule 4 of the aforesaid Rules and the Collector was empowered to pass such an order which order is in accordance with law. The Commissioner vide order (Annexure P-l) has rightly not stayed the order which order needs no interference by this Court. 4. Both the parties placed reliance to a Division Bench's judgment of this Court in Lalla Prasad Burman v. State of M.P. [ 2008(II) MPWN 101 = 2008(3) MPLJ 394 ]. 5. The Commissioner vide order (Annexure P-l) has rightly not stayed the order which order needs no interference by this Court. 4. Both the parties placed reliance to a Division Bench's judgment of this Court in Lalla Prasad Burman v. State of M.P. [ 2008(II) MPWN 101 = 2008(3) MPLJ 394 ]. 5. To appreciate the aforesaid contentions, the factual position in the present case may be stated: The petitioner was appointed as Panchayat Karmi by Gram Panchayat Badera, tehsil Chanderi, district Guna, vide order Annexure P-4 dated 20.3.2002. The petitioner was declared Panchayat Secretary under section 69(1) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. It appears that certain complaints were made against the petitioner and the Collector, Ashok Nagar after getting a report from the Deputy Collector, Ashok Nagar found prima facie that the allegations against the petitioner were correct, directed suspension of the petitioner vide Annexure P-2 and the Deputy Director, Panchayat and Social Justice, Ashok Nagar was directed to prepare a charge-sheet against the petitioner. 6. So far as appointment of the petitioner as Panchayat Karmi is concerned, it is not in dispute that the petitioner was appointed as Panchayat Karmi by Gram Panchayat Badera. The Collector, Ashok Nagar. was empowered to appoint petitioner as Secretary under section 69(1) of the Act. Accordingly, an order Annexure P-4 was passed in this regard on 20th March, 2002. In the set of the aforesaid facts the provisions of section 69 may be referred, which read thus: "69. Appointment of Secretary and Chief Executive Officer. -- (1) The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats : Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this section : Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat. Explanation. -- for the purpose of this sub-section the expression "relative" shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, son-in-law, daughter-in-law. Explanation. -- for the purpose of this sub-section the expression "relative" shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, son-in-law, daughter-in-law. (2) The State Government shall appoint for every Janpad Panchayat a Chief Executive Officer and may also appoint one or more Additional Chief Executive Officer who shall discharge such functions and perform such duties as may be assigned to them by the Chief Executive Officer. (3) The State Government shall appoint for every Zila Panchayat a Chief Executive Officer and may also appoint one or more Additional Chief Executive Officers, Deputy Chief Executive Officers and Executive Officers who shall discharge such functions and perform such duties as may be assigned to them by the Chief Executive Officer. (4) During the absence of a Secretary of Gram Panchayat or Chief Executive Officer of Janpad Panchayat or Zila Panchayat due to leave, retirement, death, resignation or otherwise, the prescribed authority shall, as soon as possible, make such arrangement as he deems fit, for carrying on the office of Secretary of Gram Panchayat or Chief Executive Officer of Janpad Panchayat or Zila Panchayat as the case may be. A person while carrying on such office shall exercise all powers conferred by this Act or Rules made thereunder on the Secretary of Gram Panchayat or Chief Executive Officer of Janpad Panchayat or Zila Panchayat as the case may be. (5) The Secretary of Gram Panchayat, the Chief Executive Officer of the Janpad Panchayat and Zila Panchayat shall be responsible for keeping and maintaining the records of the Gram Panchayat, Janpad Panchayat or Zila Panchayat as the case may be." Disciplinary action against the Panchayat Karmi is envisaged under the Rules namely M.P. Panchayat Service (Discipline and Appeal) Rules, 1999. Rule 4 of the said Rules provides thus: "4. Suspension. Rule 4 of the said Rules provides thus: "4. Suspension. -- (l) The appointing authority or any authority to which it is subordinate, or disciplinary authority in that behalf, may place a member of Panchayat service under suspension: (a) Where a disciplinary proceeding against him is contemplated, or is pending or (b) Where a case against him in respect of any criminal offence involving moral turpitude is under investigation, enquiry or trial: Provided that where the order of suspension is made by an authority subordinate to or lower in rank then the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. (2) A member of Panchayat service shall be deemed to have been placed under suspension by an order of appointing authority: (a) With effect from the date of his detention, or a criminal charge or otherwise, for a period exceeding forty eight hours. (b) With effect from the date of his conviction, if the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed or compulsorily retired consequent upon such conviction. Explanation. -- The period of forty eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3) When a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of Panchayat service under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry of or action or with any other directions, the order of his suspension shall be deemed to have continued in force with effect on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Whether a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of Panchayat service is set aside or declared or rendered void in consequence of or, by a decision of a Court of law, and the disciplinary authority on a consideration of the circumstances of the case, decide to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of Panchayat service shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal, compulsory retirement and shall continue to remain under suspension until further orders. (5)(a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) Where a member of Panchayat service is suspended or deemed to have been suspended in connection with any disciplinary proceeding or otherwise and any other disciplinary proceeding is commenced against him during the continuance of such suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, directing that the member of Panchayat service shall continue to be under suspension until the termination of all or any of such proceedings. (c) An order of suspension made or deemed to have been made under this rule, may at any time be modified or revoked by the authority which made or is deemed to have made it or by any authority to which, that authority is subordinate." The aforesaid rule specifically provides that the appointing authority or any authority to which it is subordinate, or disciplinary authority in that behalf, may place a member of Panchayat service under suspension. 7. The petitioner was a Panchayat Karmi and his appointing authority was Gram Panchayat. In the case of Panchayat Karmi, the Gram Panchayat was entitled to take action against the petitioner. No provision was brought to our notice empowering the Collector to place a Panchayat Karmi under suspension. 7. The petitioner was a Panchayat Karmi and his appointing authority was Gram Panchayat. In the case of Panchayat Karmi, the Gram Panchayat was entitled to take action against the petitioner. No provision was brought to our notice empowering the Collector to place a Panchayat Karmi under suspension. In Lalla Prasad Burman's case (supra), a Division Bench of this Court was considering the question in respect of denotifying Panchayat Karmi as Panchayat Secretary under section 69 and held that it constitutes a major penalty under rule 5B of M.P. Panchayat Services (Discipline and Appeal) Rules, 1999 and an enquiry must be held under rule 7 of the Rules. The order of major penalty cannot be passed unless an inquiry is held. The Secretary of Gram Panchayat cannot be removed or reverted without following procedure. But in the present case, question is only suspension of the Secretary under section 69(1) of the Act and for suspension, no inquiry is contemplated under the Rules. 8. In this case, the Collector, Ashok Nagar was an appointing authority under section 69(1) of the Act. So far as it relates to appointing of the petitioner as Secretary, the Collector was an appointing authority or disciplinary authority of petitioner. So far as it relates to appointing of the petitioner as Panchayat Karmi, under rule 4 of the Rules, 1999, the Collector was empowered to suspend the petitioner from the post of Secretary and not from the post of Panchayat Karmi. In these circumstances, the order Annexure P-2 by which the petitioner was placed under suspension and was directed to pay subsistence allowance, deserves to be limited to the extent of powers conferred to the Collector, Ashok Nagar to appoint the petitioner under section 69(1) of the Act as Secretary of said Gram Panchayat. But this order Annexure P-2 shall not be treated as suspending the petitioner from the post of Panchayat K armi. By clarifying it, the order of Annexure P-l is modified and it is directed that till the decision of revision pending before the Additioml Commissioner, Gwalior, the petitioner's suspension order Annexure P-l so far as it relates suspending the petitioner from the post of Secretary of Gram Panchayat shall remain in force and the petitioner shall be entitled to continue as Panchayat Karmi. The Additional Commissioner, Gwalior Division, Gwalior shall hear and decide the pending revision expeditiously as far as possible within a period of 30 days from the date of communication of this order. Considering the aforesaid facts, there shall be no order as to costs.