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Madhya Pradesh High Court · body

2010 DIGILAW 61 (MP)

Uttam Singh v. State of M. P.

2010-01-18

P.K.JAISWAL

body2010
ORDER 1. The petitioner is this writ petition is challenging the orders dated 1.1.2002 (Annexure P-13) passed by respondent No. 2, order dated 25.9.2002 (Annexure P-14) passed by respondent No.5 and order Elated 4.9.2003 (Annexure P-16) passed by respondent No.4. 2. Brief facts of the case are that the petitioner was appointed as Panchayat Karmi, Gram Panchayat Mahgawan, Chirriya of Tahsil Gadarwara District Narsinghpur. In the year 2002, respondent No.3 was elected as Sarpanch of Gram Panchayat, Mahgawan. The allegation against the petitioner was that he vide Annexure P-1 to P-7 lodged various complaints against the respondent No.3, Sarpanch of Gram Panchayat, Mahgwan which amounts to misconduct and, therefore, respondent Nos. 2 and 3 on 10.10.2001 (Annexure P-8) directed the petitioner to appear along with the record on 20th October, 2001 before the Panchas of Gram Panchayat Mahgawan else they will take appropriate action for his removal and remove him from the post of Panchayat Karmi. In spite of notice, petitioner failed to appear before the Gram Panchayat, therefore, Gram Panchayat in its meeting dated 20.10.2001 (Annexure P-9) passed a resolution for his removal on the post of Panchayat Karmi (Sachiv). On 31.12.2001 a meeting was convened by the Gram Panchayat and during the meeting 6-7 charges of misconduct have been levelled against the petitioner. At the time of proceedings of the Gram Panchayat, petitioner was also present and he was asked to submit his case but he refused to do so and thereafter all the Panchas of the Gram Panchayat by adopting the method of secret voting and by majority of 7 -4 had taken a decision to remove the petitioner and passed a resolution for removal of the petitioner from the post of Panchayat Karmi. In pursuance to the said resolution dated 31.12.2001, an order of termination dated 1.1.2002 (Annexure P-13) was passed. The petitioner challenged the said order by filing an appeal before the respondent No.5 who after appreciating the resolution and the documents upheld the order of termination dated 1.1.2002 and dismissed the appeal of the petitioner. The petitioner challenged the said order of respondent No.5 by filing second appeal before the Additional Collector, Narsinghpur. The learned Additional Collector by order dated 4.9.2003 (Annexure P-16) upheld the order of Prescribed Authority and dismissed the appeal of the petitioner. These orders are impugned in this writ petition. 3. The petitioner challenged the said order of respondent No.5 by filing second appeal before the Additional Collector, Narsinghpur. The learned Additional Collector by order dated 4.9.2003 (Annexure P-16) upheld the order of Prescribed Authority and dismissed the appeal of the petitioner. These orders are impugned in this writ petition. 3. It is submitted by learned counsel for the petitioner that the order of termination was passed without holding any enquiry under Rule 7 of M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 (in short 'Rules of 1999'). His further submission was that prior to passing of termination order, no show cause notice was issued to him. The show-cause notice dated 10.10.2001 was never served on the petitioner and, therefore, the whole action is illegal and contrary to the provisions of Pane hay at Karmi Scheme framed by the State Government on 12.9.1995 and the provisions of the Rules of1999. 4. On the other hand, learned counsel for the respondents drew my attention to the acknowledgment Annexure R -2 and R - 3 and submitted that Prior to taking disciplinary action against the petitioner, notice was duly served on 10.10.2001 through Kotwar of Gram Panchayat as required under the Rules and thereafter resolution dated 31.12.2001 was passed by which as many as six charges against the petitioner were found proved and, therefore, respondents No. 2 and 3 have taken a decision to remove the petitioner from the post of Panchayat Karmi and in pursuance to the said resolution termination order was passed. Said action was challenged by the petitioner by filing first and second appeal which were dismissed and both the authorities very categorically held that the order was passed after service of notice to the petitioner. With the above submission, he defended the action of Gram Panchayat and prayed for dismissal of the writ petition. 5. Learned Government Advocate on the other hand adopted the arguments advanced by the respondents No.2 and 3 and submitted that in the case of Panchayat Karmi, the Gram Panchayat was entitled to take action against the petitioner. His further submission was that the Secretary of Gram Panchayat cannot be removed or reverted without following procedure prescribed under the Rule of 1999. However, Gram Panchayat is fully competent to remove the petitioner from the post of Panchayat Karmi. 6. The Panchayat Karmi Scheme is dated 12.9.1995. His further submission was that the Secretary of Gram Panchayat cannot be removed or reverted without following procedure prescribed under the Rule of 1999. However, Gram Panchayat is fully competent to remove the petitioner from the post of Panchayat Karmi. 6. The Panchayat Karmi Scheme is dated 12.9.1995. The Panchayat Karmi Yojana under section 70 is not referable to rules under the provisions of the Act as the Scheme makes reference only to the provisions of sections 69 to 70 of the Act and not to the rule making power of the State Government. The conditions contained for appointment of officers and servants in the scheme cannot be treated to be Rules prescribing qualifications, conditions etc. but only executive instructions to the Gram Panchayat. Thereafter State Government has framed Rules, which are known as M.P. Panchayat Service (Discipline and Appeal) Rules, 1999. According to Rule 2 (f) "Member of Panchayat Service or a Panchayat Servant" means any person appointed to the "Panchayat Service" and includes an Officer or servant elected to the Panchayat service. According to Rule 2 (j) "Panchayat Service" means any Panchayat Service. Thus, the Panchayat Karmis are also included in the Panchayat Service and they are Panchayat Servants within the meaning of Rule 2 (f) of the Rules. They enjoy the protection of Rules of 1999. Rule 7 of the Rules of 1999 provides procedure for imposing major penalty. This procedure was not followed in this case. No charges were framed nor any witnesses were examined. No opportunity was given to the petitioner to cross-examine the witnesses. There is no enquiry report nor the charges which have been levelled against the petitioner vide resolution dated 31.12.2001 have been examined by appointing any Enquiry Officer nor any enquiry in respect of the said charges was held. These are the essential requisites of the procedure of enquiry contained in Rule 7. Services of the petitioner were terminated without following the essential requisites of procedure of enquiry as provided under Rule 7 of Rules of 1999. 7. The question requiring determination in the present case is as to whether proper procedure was followed in the matter of issuing show-cause-notice to the petitioner on 10.10.2001 and passing of the resolution for removing him from service. According to the petitioner the notice was never served upon him. The respondent Nos. 7. The question requiring determination in the present case is as to whether proper procedure was followed in the matter of issuing show-cause-notice to the petitioner on 10.10.2001 and passing of the resolution for removing him from service. According to the petitioner the notice was never served upon him. The respondent Nos. 2 and 3 in the return have filed report which is signed by Kotwar and it mentions that the petitioner refused to accept the notice. The document except for saying that the petitioner refused to receive notice is silent insofar as it relates to particulars of the notice, number, date and other particulars of the show-cause notice are not mentioned in the return. That apart, it also does not indicate as to when, how and in whose presence the notice was tried to be served. Refusal of the same is not witnessed by any witness and even the date and time is not mentioned after signature of the person concerned. 8. Under the Panchayat Raj Adhiniyam, 1993, a statutory provision is made for the purpose of serving notice and documents. The statutory rules are known as the Madhya Pradesh (Mehod of Service of Notice and Document) Rules, 1995. Rule 3 of the aforesaid case elaborates procedure for services of notice to any person. In the present case, when action was taken against the petitioner under the provisions of the Panchayat Raj Adhiniyam it was incumbent upon the respondents to serve the notice in accordance with the aforesaid statutory rules. From the records, it is clear that a notice in accordance with the Rules is not served. When specific rule is provided for services of notice, notice has to be served in accordance with the aforesaid statutory provision. Service of notice in any manner contrary to the statutory rules is not permissible. That being so it has to be held that in the present case notice in accordance with the rule have not been served on the petitioner and, therefore, the action taken against him is without giving him due opportunity of hearing. 9. In the case of Kailash Babu Rai v. State of M.P. and others, reported in 2008 (3) JLJ 392 = 2008 (3) MPLJ 648 , the petitioner was removed from the post of Panchayat Karmi (Secretary) vide order Annexure P-1, dated 24.8.1999. 9. In the case of Kailash Babu Rai v. State of M.P. and others, reported in 2008 (3) JLJ 392 = 2008 (3) MPLJ 648 , the petitioner was removed from the post of Panchayat Karmi (Secretary) vide order Annexure P-1, dated 24.8.1999. It has been held by this Court that the petitioner has been appointed as Panchayat Karmi and thereafter notified as Panchayat Secretary falls within the ambit of Panchayat Service or Panchayat Servant as defined in clause (f) of section 201 1999 rules and the removal from the services of the petitioner falls in. sub-clause (6) of clause (b) of Rule 5 which is a major penalty. No procedure as prescribed under Rule 7 was followed nor any charge-sheet as required under sub-rule (2) of Rule 7 was issued to the petitioner. Thus, the impugned order being in contravention of these rules are also not otherwise sustainable in law. 10. For these reasons, I am of the considered view that the petitioner is Panchayat Servant within the meaning of Rule (2) of the Rules and enjoys the protection of Rules of 1999. In absence of any enquiry, as contained in Rule 7 the impugned orders are illegal and they are liable to be quashed. Accordingly order dated 1.1.2002 (Annexure P-13) passed by respondent No.2, order dated 25.9.2002 (Annexure P-14) passed by respondent No. 5 and order dated 4.9.2003 (Annexure P-16) passed by respondent No.4 are hereby quashed. In view of the interim order passed by this Court on 21.10.2003, during the pendency of the petition, the petitioner was in service. In case, if it is found that he has been terminated prior to passing of interim order passed by this Court, in that event respondent Nos. 2 and 3 are directed to reinstate the petitioner in service and pay full back wages. 11. In the result, the writ petition is allowed with cost. Counsel fee Rs. 2,500/-, if certified.