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2009 DIGILAW 361 (CHH)

ILESH KUMAR SAHU v. STATE OF C. G.

2009-12-04

SATISH K.AGNIHOTRI

body2009
ORDER (ORAL) Heard. 1. The present petition, filed under Article 226 of the Constitution of India impugns the order dated 11.7.2007 (Annexure P/1), passed by the Sarpanch of Gram Panchayat Gorakhpurkala, Janpad Panchayat - Sakin Lohara, District Kabirdham. 2. Brief facts, in nutshell, are that the petitioner was appointed as Panchayat Karmi on 12.11.2005 by the Gram Panchayat Gorakhpurkala. The petitioner continued to work till 10.7.2003 when he was removed from the post of Pane hay at Karmi and Panchayat Secretary. In the meantime, a show cause notice was issued withdrawing the charge of Secretary from the petitioner. Being aggrieved the petitioner filed W.P. No. 1021/2003, which was disposed of by order dated 9.5.2003 with a direction to decide the case of the petitioner within a month. Thereafter, the petitioner was removed from the post of Pane hay at Karmi and Secretary. 3. Being aggrieved the petitioner again filed W.P. No. 2973 of 2003, which was allowed by order dated 28.8.2006 on the ground that the order of removal was passed, ignoring the statutory provisions of Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'the Rules, 1999'). However, liberty was granted to the respondents to proceed against the petitioner, if so advised, in accordance with law. 4. Thereafter, by order dated 21.2.2007 (Annexure R/1), a committee was constituted to enquire into the allegations levelled against the petitioner. After a detailed preliminary enquiry, the enquiry report (Annexure R/4) was submitted, accordingly, thereafter a charge sheet dated 24.5.2007 (Annexure P/5) was issued to the petitioner by the Deputy Director, Panchayat & Social Welfare. Kabirdham. In response to the charge sheet, the petitioner submitted an application (Annexure P/6) for supply of documents, which was replied by the respondent No.3 on 27.6.2007 (Annexure P/7) stating that the required documents could be obtained from Sarpanch, Gram Panchayat, Gorakhpurkala, though the charge-sheet was issued by the respondent No.3. By the impugned order dated 11.7.2007 (Annexure P/1) the petitioner has been removed from the post of Panchayat Karmi, without holding proper enquiry. 5. Learned counsel would submit that since the mandatory, statutory provisions of Rule 7 of the Rules, 1999 were not followed before removing the petitioner from the post of Panchayat Karmi, the impugned order, passed in the meeting of the Gram Sabha was illegal and bad on the ground that no proper enquiry was held. 5. Learned counsel would submit that since the mandatory, statutory provisions of Rule 7 of the Rules, 1999 were not followed before removing the petitioner from the post of Panchayat Karmi, the impugned order, passed in the meeting of the Gram Sabha was illegal and bad on the ground that no proper enquiry was held. In support of his submissions learned counsel appearing for the petitioner relied on a decision of this Court in Dhaluram Kosaria Vs. State of C. G. & others1, which was referred approvingly in Anjordas Vs. State of Chhattlsgarh & others2. 1. 2006(2)CGU 186 2. 2008(III)MPJR-CG 110 6. Learned counsel appearing for the respondents submits that the notice along with the charge sheet (Annexure PIS) was sent to the petitioner. The petitioner declined to receive the notice and charge sheet. Thereafter, no enquiry officer was appointed and no enquiry was conducted. 7. I have heard learned counsel appearing for the parties and perused the documents appended thereto. 8. Even in the case, the delinquent employee declines to accept the charge sheet, the enquiry must be conducted in accordance with law, may be ex -parte. It is trite law that the enquiry officer does not examine witnesses only but other documents also which may be relevant to establish the charges. In the present case nothing has been done after issue of the charge sheet to prove the charge and as such it may not be held that the enquiry as contemplated in Rule 7 of the Rules, 1999 has been done. 9. Rule 7 of the Rules, 1999 provides for procedure before terminating services of a member of Panchayat. In the instant case, it is apparent that although, a preliminary enquiry was held and on the basis of the out come of the preliminary enquiry the charge sheet was issued to the petitioner but thereafter no enquiry was held. Thus, admittedly, the said provisions of Rule 7 of the Rules, 1999 were not followed. It is apparent that after the preliminary enquiry, the order of removal was passed in the meeting of the Gram Sabha. The same could not have been passed without following the provisions of law, prescribed in Rule 7 of the Rules 1999. 10. Thus, admittedly, the said provisions of Rule 7 of the Rules, 1999 were not followed. It is apparent that after the preliminary enquiry, the order of removal was passed in the meeting of the Gram Sabha. The same could not have been passed without following the provisions of law, prescribed in Rule 7 of the Rules 1999. 10. Having heard learned counsel appearing for the parties and having perused the pleadings and document appended thereto, it is evident that the impugned termination order was passed without following the proper procedure of law, as prescribed under Rule 7 of the Rules, 1999. The procedure for holding an enquiry is prescribed under Rule 7 of the Rules, 1999 for imposition of major penalty. Hence, the termination is bad and vitiated on the ground of non-compliance of the statutory provisions and denial of the principles of natural justice. It amounts to infraction of not only the provisions of Rule 7 of the Rules, 1999 but also the provisions of Article 311 (2) of the Constitution of India. The order was in fact penal in nature, having civil consequences and as such compliance of the elaborate provisions, as enshrined in Rule 7 of the Rules 1999 was mandatory in the present case. (See the case of Dhaluram Kosaria1 and Anjordas2 (supra)). 11. In view of the foregoing, the petition is allowed. The impugned order dated 11.7.2007 is set aside. No order as to costs. 12. On the question of back wages, no foundation has been laid to establish the fact that whether the petitioner was gainfully employed elsewhere or not during this period. Even otherwise, keeping in view that the termination order has been vitiated not on merit but on account of non-compliance of the statutory provisions before terminating the services of the petitioner, 30% back wages would be sufficient in the interest of justice. Petition Allowed.