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2010 DIGILAW 187 (MP)

Mehfooz Khan v. State of M. P.

2010-02-15

S.C.SHARMA

body2010
ORDER S.C. Sharma, J. 1. The petitioner before this Court has filed the present writ petition, being aggrieved by an order dated 15/10/2008 (Annexure P/1) passed by the Commissioner, Chambal Division, Morena. 2. The contention of the petitioner is that he was appointed as Panchayat Karmi and an order dated 12/11/2001 was passed by the Collector (Panchayat), District Morena in exercise of the powers conferred under Section 69(1) of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993, de-notifying him as Panchayat Karmi. Against the said order, he has preferred an appeal i.e. Appeal No. 6/2002-03 before the Commissioner, Chambal Division, Morena and the same was allowed by the Commissioner, Chambal Division, Morena by an order dated 09/09/2003. The Commissioner, Chambal Division, Morena while allowing the appeal, has remanded the matter back to the Collector Morena to pass a speaking order and to pass order afresh in the matter. The petitioner has further stated that thereafter another order passed by the Collector, Morena on 05/01/2004 again de-notifying the petitioner vide Annexure P/4. Thereafter, the petitioner has preferred an appeal before the Commissioner, Chambal Division, Morena against the order dated 5/1/22004 (Annexure P/4) passed by the Collector, Morena, The Commissioner, Chambal Division, Morena has dismissed the appeal preferred by the petitioner vide order dated 15/10/2008. The petitioner has came up before this Court by filing the present writ petition and has argued before this that the respondent no. 1-Collector, Morena while de-notifying the petitioner, has not followed the statutory provisions. Learned counsel appearing for the petitioner, has relied upon a judgment delivered by a Division Bench of this Court in the case of Lalla Prasad Burman Vs. State of M. P. and Others reported in 2008 (3) MPLJ 394 , wherein the Diosion Bench of this Court in paragraphs 5, 6, 7, 8 & 9 has held as under :- After hearing learned counsel for the parties, we find that the Collector, Shahdol has lost sight of the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'the Rules, 1999') while passing the order dated 29/06/2007 denotifying the appellant as Panchayat Secretary under section 69(1) of the Act. Sub-rule (3) of Rule I of the Rules, 1999 states that except other wise provided by or under these rules, they apply to all persons employed in connection with the affairs of inter alia the Gram Panchayat and discharging the functions of Gram Panchayat. Secretary of Gram Panchayat is employed in connection with the affairs of Gram Panchayat and discharging the functions of Gram Panchayat. Hence, the Rules, 1999 are applicable to him. It is not disputed that the appellant was notified as Panchayat Secretary as far back as on 12-10-1999 and is working as such Panchyat Secretary for about eight years. Hence, any action against the appellant for misconduct could only be taken in accordance with the Rules, 1999 and not otherwise.Part III of the Rules, 1999 provides for penalties. Rule 5 categorised the minor penalties and the major penalties which can be imposed on a member of the Panchayat Service. Under clause (b) major penalties which can be imposed on a member of a Panchayat Service have been enumerated and reduction in rank and removal from service have been categorised as major penalties. When a Secretary of a Gram Panchayat is either reverted to the rank of Panchayat Karmi or removed from the post of Secretary, he suffers a major penalty mentioned under clause (b) of Rule 5 of the Rules, 1999. Rule 7 of the Rules, 1999 provides that no order imposing on a member of the Panchayat Service, any of the major penalties shall be passed except after a formal inquiry is held as far as may be in the manner provided therein. Hence, unless the procedure laid down in the Rule 7 of the Rules, 1999 is followed, the Secretary of the Gram Panchayat cannot be removed or reverted from the post of Secretary, Gram Panchayat. Therefore, the stand taken by the appellant that he could not have been removed from the post of Secretary, Gram Panchayat or could not have been reverted to a lower post of Panchayat Karmi without an inquiry appears to be correct. Therefore, the stand taken by the appellant that he could not have been removed from the post of Secretary, Gram Panchayat or could not have been reverted to a lower post of Panchayat Karmi without an inquiry appears to be correct. Nonetheless Rule 4 of the Rules, 1999 provides that the Appointing Authority or any authority to which it is subordinate or Disciplinary Authority may place a member of Panchayat Service under suspension where as disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial. In the present case, since an inquiry into the charges of misconduct against the appellant has been ordered by the Collector, Shahdol, a disciplinary case is pending against him. That apart a criminal case for violation of the provisions of the Essential Commodities Act is also pending against the appellant. Hence, the Appointing Authority or the Disciplinary Authority or any authority to which the Appointing Authority is subordinate have the power to place the appellant under suspension. But instead of placing the appellant under suspension pending disciplinary proceedings and pending the criminal trial, the Collector, Shahdol has reverted the appellant to the rank of Panchayat Karmi or has removed him from the post of Panchayat Secretary contrary to the provisions of the Rules, 1999 as discussed above. 3. In the result, we allow this appeal, set aside the impugned order dated 30/07/2007 passed by the learned Single Judge, quash the order dated 29/06/2007 of the Collector, Shahdol, as well as the order dated 16/07/2007 of the Commissioner Rewa Division, and leave it open for the Collector to pass an order of suspension of the appellant in accordance with the Rules, 1999" 4. The petitioner has further submitted that the order passed by the Collector, Morena is countrary to the judgment delivered by a Division Bench of this Court in the case of Lalla Prasad Burman (supra) and has prayed for quashing the order dated 5/1/2004 (Annexure P/4) passed by the Collector, Morena as well as order dated 15/10/2008 (Annexure P/1) passed by the Commissioner, Chambal Division, Morena. 5. A reply has been filed by the respondents no.1 and 2/ State in the matter. The contention of the respondents no. 5. A reply has been filed by the respondents no.1 and 2/ State in the matter. The contention of the respondents no. 1 and 2/ State is that the petitioner was granted an opportunity of hearing while passing the impugned order dated 05/01/2004 and keeping in view the miscondud committed by the petitioner, the orders passed by the Collector, Morena as well as by the Commissioner, Chambal Division, Morena does not warrant any interference. Learned Deputy Government Advocate appearing on behalf of the respondent nos. 1 and 2/ State has prayed for dismissal of the writ petition. 6. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that the petitioner was de-notified by an order dated 12/11/2001. Against the said order, an appeal was preferred by the petitioner before the Commissioner Chambal Division, Morena and the Commissioner, Chambal Division, Morena has remanded the matter back and directed the Collector, Morena to pass a speaking order afresh. The Collector, Morena has certainly granted opportunity of hearing to the petitioner while passing an order dated 05/01/2004, however, the fact remains that the procedure prescribed under the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'the Rules of 1999'), has not been followed in the matter at all and, therefore, the order dated 05/ 01/2004 passed by the Collector, Morena as well as the order dated 15/10/ 2008 passed by the Commissioner, Chambal Division, Morena reflects that the orders passed by them are not in consonance with the provisions of the Rules of 1999. 7. Keeping in view the aforesaid judgment delivered by a Division Bench of this Court in the case of Lalla Prasad Burman (supra), as the respondents have not followed the provisions of Rules, 1999, the impugned order dated 5/ 1/2004 (Annexure P/4) as well as the order dated 15/10/2008 (Annexure P/1) are hereby quashed. The writ petition stands allowed and disposed of No order as to costs.