Judgment : In W.P. No. 21717 of 2004, the petitioner has sought for a writ of mandamus directing the respondents to regularise his services with all monetary benefits and for further orders. 2. In W.P. No. 26077 of 2004, the petitioner has sought for a writ of certiorari to quash the order, dated 24.8.2004 of the second respondent and direct the second respondent to reinstate him in the service with full backwages, continuity of service and all other consequential benefits. 3. As both the writ petitions relate to the same parties and the pleadings are almost similar, they are taken up together and disposed of by a common order. 4. In W.P. No. 21717 of 2004, it is the case of the petitioner that though he had served in the second respondent's Village Panchayat for more than 240 days, his services were not regularised. Therefore, he made representation on 28.6.2003, requesting the respondents to regularise his services. Since the respondents have not taken any action on the representation for regularisation, the petitioner has come forward with this writ petition, contending inter alia that he was doing identical work with that of a permanent employee and therefore, he is entitled for regularisation from the date of his entry into service. The petitioner has further contended that there is a need for the post of Panchayat clerk as full-time employee and that the respondents have failed to consider that he has been serving in the department for more than three years without any adverse remarks. 5. During the pendency of this writ petition, the petitioner was served with a show cause notice dated 12.8.2004, alleging certain irregularities. The petitioner has submitted his explanation on 16.8.2004 rebutting the allegations made in the notice. After receiving the explanation, the second respondent has straight away passed an order of termination without conducting an enquiry. The said order is challenged in W.P. No. 20677 of 2004. 6. The second respondent in his counter affidavit has submitted that she was elected as a President in October 2001 and the petitioner was an Assistant working in her Panchayat to carry out the directions issued by her in the administration of Kangavaram Panchayat, Gingee Taluk, Villupuram District. The said order is challenged in W.P. No. 20677 of 2004. 6. The second respondent in his counter affidavit has submitted that she was elected as a President in October 2001 and the petitioner was an Assistant working in her Panchayat to carry out the directions issued by her in the administration of Kangavaram Panchayat, Gingee Taluk, Villupuram District. The second respondent has further submitted that the petitioner was not appointed as a part-time clerk on 10.2.2001 in her Panchayat, as per the procedure contemplated under the Tamil Nadu Panchayat Act and the Rules framed thereunder. He was not sponsored by the Employment Exchange and no committee was constituted by the predecessor of the second respondent to select the petitioner to the said post and therefore, the appointment of the petitioner as part-time Panchayat Assistant on 10.2.2001 itself is not valid. 7. It is the further case of the second respondent that when a servant is appointed in the Panchayat, there will be a service registrar maintained for the purpose. The petitioner has failed to maintain the records properly and therefore, a show cause notice, dated 12.8.2004 was issued to the petitioner for certain irregularities, such as, collection of professional tax and house tax, non-maintaining of the service records of the “Village Panchayat servants, attendance register, Important Register Nos. 17,18,21 and Stock Register etc. The petitioner has failed to pay the subscription towards Group Insurance Scheme, attend the Weekly Meeting conducted on every Tuesday and also failed to submit the monthly reports to the Block Development Officer. That apart, the petitioner has withdrawn a sum of Rs. 9,250/- by way of, Cheque No. 445124 and out of which, he has misappropriated a sum of Rs. 5,750/-. Though the petitioner has collected professional tax of Rs. 1000/- on 28.8.2000, he had remitted the same only on 11.10.2000. As per the procedure, any amount collected by the Village Panchayat Assistant must be deposited with the bank on the very next day in the Panchayat account. Failure to pay the professional tax in time lead to an imposition of fine of Rs. 100/- by the Deputy Block Development Officer and the same was also paid by the petitioner. 8. As per the procedure, any amount collected by the Village Panchayat Assistant must be deposited with the bank on the very next day in the Panchayat account. Failure to pay the professional tax in time lead to an imposition of fine of Rs. 100/- by the Deputy Block Development Officer and the same was also paid by the petitioner. 8. The second respondent has further submitted that the explanation of the petitioner was thoroughly considered and as per Section 106 of the Tamil Nadu Panchayat Act, 1992, as the council is empowered to take appropriate decision in respect of appointment and removal of person from the Panchayat, the show cause notice, explanation, audit objection and other records in respect of the irregularities committed by the petitioner and the details of misappropriation of the Panchayat amount of Rs. 5,750/-, along with the second respondent's remarks were submitted before the Council for its decision. The Council has also passed a resolution No. 98, on 23.8.2004, terminating the services of the petitioner. The impugned order of termination is based on the resolution of the Council and it is valid in law. 9. The respondent has further submitted that the petitioner has been given due and proper opportunity to rebut the allegations levelled in the show cause notice and therefore, there is no need to conduct, any detailed enquiry. As the appointment of the petitioner is not in accordance with the Rules, the ultimate decision taken by the Council and carried out by the President is in conformity with the statutory provision. It is also the case of the second respondent that as the petitioner has not been properly appointed through the Panchayat, he is not entitled for regularisation. Hence the respondent has prayed for dismissal of both the writ petitions. 10. Placing reliance on the decision of this Court in R. Adhikesavelu v. District Collector, Thiruvallur 2004 (2) LW 577 , Mr. Vasudevan learned counsel for the petitioner submitted that before terminating the petitioner, the respondents have not conducted any enquiry into the charges and therefore, there is a violation of principles of natural justice. He further submitted that had the petitioner been given an opportunity, he would have satisfied the authorities that the charges levelled against him are false and not based on acceptable evidence. 11. Per contra, Mr. He further submitted that had the petitioner been given an opportunity, he would have satisfied the authorities that the charges levelled against him are false and not based on acceptable evidence. 11. Per contra, Mr. P. Subburayan learned counsel appearing for the second respondent, referring to the explanation offered by the petitioner, submitted that the petitioner has already admitted certain charges of not maintaining the records in the Panchayat and therefore, there is no need to conduct a regular departmental enquiry. He further submitted that the petitioner was found to have misappropriated a sum of Rs. 5,750/- from out of Panchayat fund drawn by way of cheque and also temporarily misappropriated a sum of Rs. 1,000/- collected on 28.8.2000, towards professional tax. He further submitted that the said amount was belatedly paid on 11.10.2000 and for the failure to pay the provisional tax in time, the petitioner was imposed a fine of Rs. 100/- by the Deputy Block Development Officer, which was paid by the petitioner. 12. Learned counsel for the respondents further submitted that as per Section 106 of the Tamil Nadu Panchayat Act, 1992, the council is empowered to take appropriate decision in respect of appointment and removal of any person and since the petitioner was not appointed in accordance with the Rules, the show cause notice, explanation and other records were submitted before the Council and after discussion, a resolution was passed to terminate the service of the petitioner. He further submitted that a person who has indulged in the acts of misappropriation, is not entitled to be retained in service. He further submitted that the petitioner has not maintained the registers properly and that he was not regular to the Office. 13. As regards the submissions of the petitioner on the judgment in R. Adhikesavelu v. District Collector, Thiruvallur (supra), learned counsel for the respondents submitted that in the above reported case, the service of the part-time clerk was terminated, by passing a resolution without providing any show cause notice, whereas, in the case on hand, on the basis of the resolution passed by the Panchayat, a show cause notice was issued containing the charges and only after considering his explanation, a resolution was passed by the Council to terminate the service of the petitioner. Therefore, he submitted that the above reported decision relied on the learned counsel for the petitioner is not applicable to the facts of this case. Heard the counsel appearing for the parties and perused the materials available on record. 14. Before adverting to the facts of the case, it is relevant to extract Sections 83 and 84 of the Tamil Nadu Panchayats Act, 1994. 84. Functions of executive authority: The executive authority shall,- “ 83. Executive authority of village panchayat: The Government may, by notification, appoint any person, who shall, subject to such rules as may be prescribed, exercise the powers and perform the functions of the executive authority of a village panchayat. (a) carry into effect the resolutions of the village panchayat: Provided that where the executive authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that, if carried out, it is likely to endager human life or health or the public safety, the executive authority shall refer the matter to the Government for orders and their decision shall be final; (b)control all the officers and servants of the village panchayat; (c)discharge all the duties specifically imposed and exercise all the powers conferred on the executive authority and subject to all restrictions and conditions imposed, by or under this Act exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due filfilment of the purposes thereof.” 15. Admittedly, the petitioner is a part-time employee of the panchayat and no detailed enquiry has been conducted in respect of charges levelled against the petitioner. In a recent decision in G. Rangarasu v. President, Vaithur Panchayat, Pudukottati (2007) 7 MLJ 450 (Mad.), a learned Single Judge of this Court considered a case of termination of a part time writer working in a panchayat. In the reported case, mishandling of public funds by the President was reported to the higher officials by the said part-time writer and therefore, a show cause notice was issued to the said part-time writer by the President for certain irregularities. On receipt of the explanation, the employee was terminated from service. While testing the correctness of the order, this Court, at Paragraph 7 of the judgment, held as follows at p. 452 of MLJ: “ 7. On receipt of the explanation, the employee was terminated from service. While testing the correctness of the order, this Court, at Paragraph 7 of the judgment, held as follows at p. 452 of MLJ: “ 7. Therefore, in the absence of any material to show that the procedure contemplated under the Tamil Nadu Panchayats Act or any other rule has been followed before terminating the petitioner from service, there is no other option except to set aside the order of the respondent.” 16. The impugned order does not indicate the basis on which the allegations were said to have been proved. Whereas, it proceeds on the basis that the explanations offered by the petitioner, are false and without any basis. Though the respondent in their counter affidavit has contended that the appointment of the petitioner is not in accordance with the procedure and that he was not sponsored by the employment exchange, it is not the ground for termination and therefore, it is not open to the respondents to gain support from the counter affidavit. It is settled law that the impugned order has to stand or fall, for the reasons contained therein and that the respondents cannot improve their case by the averments in the counter affidavit. The petitioner was a part-time employee. Serious charges of misappropriation has been levelled against the petitioner and that he cannot be simply be terminated without holding a regular departmental enquiry. Termination on the grounds of misappropriation certainly casts a stigma. When an employee has denied the charges by way of explanation, the authorities have no other alternative, except to conduct a detailed enquiry and give sufficient opportunity to the employee. When statute contemplates a procedure for termination of an employee, part-time employees are also entitled to the protection under Article 311(2) of the Constitution of India and that the procedure contemplated under the Tamil Nadu Panchayat Act or any other Rule has to be followed. Therefore, I am of the view that the impugned order passed in violation of the principles of natural justice, warrants interference. Accordingly the impugned order of termination is set aside and the matter is remitted back to the second respondent to conduct an enquiry into the charges, after giving sufficient opportunity to the petitioner. However, in respect of regularisation is concerned, it depends upon the decision in the disciplinary proceedings. 17. Accordingly the impugned order of termination is set aside and the matter is remitted back to the second respondent to conduct an enquiry into the charges, after giving sufficient opportunity to the petitioner. However, in respect of regularisation is concerned, it depends upon the decision in the disciplinary proceedings. 17. In the result, W.P. No. 21717 of 2004 filed for regularisation is dismissed. W.P. No. 20677 of 2004 filed against the termination order is allowed to the limited extent as indicated above. No costs.