Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1256 (MP)

Mohan Lal Jatav v. State of M. P.

2011-11-03

SUJOY PAUL

body2011
ORDER Sujoy Paul, J. 1. Since both these matters are interconnected, with the consent of parties the matters are analogously heard and decided by common order. 2. Brief facts necessary for adjudication of these matters are as under: 2. The petitioner was appointed as Panchayat Secretary. The petitioner in the present petition (Writ Petition No. 2819 of 2007) has prayed for following reliefs: (a) That, the order of removal of the petitioner from the post of Panchayatkarmi, Gram Panchayat Nimaniya, passed by the Collector (Panchayat) District Sheopur vide order dated 17.5.2007, Annexure P/1, and entire enquiry proceedings before him and further proceedings started by the Sarpanch Gram Panchayat Nimania and the resolution dated 30.5.2007 by Gram Panchayat Nimania and order of removal of the petitioner from the post of Panchayatkarmi vide order dated 31.5.2007, Annexure P/2 of the Sarpanch be kindly quashed and the petitioner be kindly ordered for continuance on his post as before with all the benefits of the post. (b) The respondent No. 1 and 2 be kindly ordered and directed for treating the orders of the removal of the petitioner as illegal and ineffective and for not giving effect to them. (c) Any other relief which may be found in the circumstances of the case and in the interest of the petitioner be kindly granted. Costs be kindly awarded. (d) That, during pendency of the petition the respondents concerned appointed Shri Rajendra Singh Gurjar as Panchayat Secretary, Gram Panchayat Nimania and subsequently secretarial power conferred upon him as per Annexure P-5 dated 14.2.2008 which is contrary to the rule and panchayat policy as the matter was subjudiced and stay was granted on 2.7.2007, therefore, the appointment of respondent Shri Rajendra Singh Gurjar is liable to be set aside, therefore, be set aside in the interest of justice. 3. The case of the petitioner is that by Annexure P/2 he was informed that he was prohibited to work as Panchayat Secretary and thereafter by Annexure P/3 dated 31.5.2007 he was removed from the post of Panchayat Secretary by invoking Section 86(1) of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter called as "Adhiniyam"). 4. 3. The case of the petitioner is that by Annexure P/2 he was informed that he was prohibited to work as Panchayat Secretary and thereafter by Annexure P/3 dated 31.5.2007 he was removed from the post of Panchayat Secretary by invoking Section 86(1) of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter called as "Adhiniyam"). 4. In nutshell, the impugned orders are called in question by the petitioner mainly on the ground that removal of a Panchayat Secretary or Panchayatkarmi can be done in consonance with the rules which are made under the Adhiniyam and called as Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "1999 Rules"). To elaborate, Shri R.P. Singh, learned counsel for the petitioner submits that removal amounts to infliction of a punishment which can be done only in consonance with the aforesaid statutory provisions. The petitioner specifically pleaded in the petition that no enquiry was conducted and no opportunity in consonance with the aforesaid rules was provided to the petitioner. Considering the aforesaid, this Court has passed an ad interim order on 2.7.2007 at the time of admission of the matter, whereby Annexure P/2 was stayed. However, this petition was subsequently dismissed in default on 3.1.2008. Thereafter before restoration of this matter the respondent No.3 has been appointed as Panchayat Secretary. 5. To attack the impugned orders, Shri R.P. Singh heavily relied on the Division Bench judgment of this Court in Lalla Prasad Burman vs. State of MP and others, 2008 (3) MPLJ 394 . This Court opined that whenever a disciplinary action is taken against a Panchayatkarmi, the mandate of the aforesaid rules needs to be followed. In the said case impugned order was quashed and liberty was reserved to the authorities to proceed from the stage where the defect occurred. Shri R.P. Singh further relied on the judgments of this Court in Uttam Singh vs. State of MP & others, 2010 (II) MPJR 56 and Mehfooz Khan. vs. State of MP & others, 2010 (2) MPJR 302 . In both the aforesaid matters, the ratio which was laid down in Lalla Prasad Burman's case (supra) was followed by the respective Single Benches. vs. State of MP & others, 2010 (2) MPJR 302 . In both the aforesaid matters, the ratio which was laid down in Lalla Prasad Burman's case (supra) was followed by the respective Single Benches. Therefore, in nutshell, learned counsel for the petitioner submits that the impugned orders Annexures P/2 and P/3 are liable to be quashed and set aside for not following the mandatory requirement of rule 7 of the 1999 Rules. 6. The petitioner subsequently amended Writ Petition No. 2819 of 2007 and impleaded the newly appointed person as respondent No. 3. By filing Writ Petition No. 1573 of 2008, the petitioner prayed that in view of ad interim order, he be permitted to work. Thus, both the matters are interconnected. 7. Per Contra, Shri Udit Saxena, Smt. Nidhi Patankar, Shri S.S. Raghuvanshi and Shri Pawan Vijayvergiya, learned counsel appearing for the respondents, heavily placed reliance on their respective return. By placing reliance on return of respondent No. 2 in Writ Petition No. 1573 of 2008 it is averred that the stand of the petitioner that rule 7 of the 1999 Rules was not complied with is factually incorrect and legally improper. It is submitted that petitioner was served with show cause notice followed by charge sheet and was given adequate opportunity to participate in the enquiry but petitioner failed to participate in the enquiry. Having left with no option, the respondents conducted the enquiry and passed the final order. Specific pleadings are made in the return of respondent No. 4 that various documents - notices etc. are served on the petitioner by various modes. In page 4 of the return of respondent No.4 it is specifically pleaded that the show cause notice dated 26.1.2007 was served on the petitioner. Learned counsel for the respondents further placed reliance on document dated 26.1.2007, Annexure R-4(5), which allegedly contains the signature of the petitioner as a mark of acknowledgement/receipt of the said show cause notice. Despite specific stand taken and reliance placed on various documents to show that these documents were specifically served on the petitioner by filing return of respondent No. 4, the petitioner has not chosen to file any rejoinder to this return to refute the averments. 8. Learned counsel for the respondents have taken a specific objection that the impugned orders herein are appealable under Madhya Pradesh Panchayat (Appeal and Revision) Ruls, 1995. 8. Learned counsel for the respondents have taken a specific objection that the impugned orders herein are appealable under Madhya Pradesh Panchayat (Appeal and Revision) Ruls, 1995. Shri R.P.Singh, however, did not refute this contention that the orders are appealable, he submits that since there is a violation of principle of nature justice and this matter was entertained way back in the year 2007 and 2008, it will not be proper at this stage to relegate the petitioner to avail the statutory alternative remedy. 9. I have heard learned counsel for the parties and perused the record. 10. True it is that in Lalla Prasad Burman's case (supra) and subsequent judgments this Court has taken a consistent view that when rule 7 of 1999 Rules, a mandatory provision, is not followed, the impugned action and consequent punishment is liable to be axed by this Court. However, this case is on a different footing where petitioner's stand cannot be accepted as gospel truth that no enquiry has been conducted and rule 7 has not been followed. In view of the return and documents filed by respondent No.4, which stood unrebutted in absence of filing any rejoinder by the petitioner, it prima facie appears that some enquiry was conducted and as per the assertion of the respondents, even notices, charge sheet etc. were duly served on the petitioner. In this view of the matter, the ratio decidendi of Lalla Prasad Burman's case (supra) and two subsequent judgments following the case of Lalla Prasad Burman has no application in the fact situation of the present case. Since highly disputed questions as to whether notices were served on the petitioner or not, whether adequate opportunity was given to the petitioner or not, are involved in this matter, this is a fit case where the petitioner should be relegated to avail the appellate remedy where he can demonstrate his case to show that he was subjected to injustice. Since in the present writ proceedings it is not possible to advert to these disputed facts, I deem it proper to not to entertain this petition by reserving the liberty to the petitioner to avail statutory alternative remedy available to him. The petitioner, if advised, may prefer an appeal before the appellate authority within 45 days along with the certified copy of this order. The petitioner, if advised, may prefer an appeal before the appellate authority within 45 days along with the certified copy of this order. If such an appeal is preferred within the aforesaid time, it shall be the duty of the appellate authority to deal with the appeal on merits and impediment of delay will not come in the way of petitioner. It be noted that this Court has not expressed any opinion on the merits of the case and it shall be open to the appellate authority to examine whether the petitioner was given adequate opportunity or not, whether notices were served on him or not and thereafter after perusal of the entire record he will adjudicate the matter and pass final orders. In City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala and others, (2009) 1 SCC 168 the Apex Court held that while exercising the jurisdiction under Article , the writ Court is bound to consider whether adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved. Since these facts cannot be satisfactorily resolved on the basis of documents on record in the writ proceedings, I deem it proper to relegate the petitioner to avail the alternative remedy before the appellate forum. 11. With the aforesaid, Writ Petition No. 2819 of 2007 is disposed of. 12. Since second petition (Writ Petition No. 1573 of 2008) is based on the first petition and since that case is decided as aforesaid, no further adjudication is required in this matter. Accordingly, this writ petition No. 1573 of 2008 is also disposed of along with Writ Petition No. 2819 of 2007.