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2011 DIGILAW 751 (MP)

Dinesh Pawar v. State of M. P.

2011-07-12

SANJAY YADAV

body2011
ORDER Hon'ble Mr. Sanjay Yadav, J. 1. Heard. 2. Resolution dated 21-7-2006 is being challenged in this petition under Article 226 of the Constitution of India. 3. By said resolution services of the petitioner as Panchayat Karmi, Gram Panchayat, Bijakwada, Janpad Panchayat Parasiya, District Chhindwara has been terminated. 4. The petitioner was appointed as Panchayat Karmi of said Gram Panchayat on 13-10-2001 in accordance with Scheme, i.e., Panchayat Karmi Yojana, 1995. 5. That, there were complaints against the petitioner regarding misuse of funds of various scheme such as SGRY Food Scheme, Indira Awas Scheme, Midday meal. As also misuse of funds in purchasing materials for the Panchayat. These allegations paved the foundation for passing of impugned resolution. 6. Petitioner challenges the resolution on the ground that the scheme has been passed without affording any opportunity of hearing and on the basis of enquiry held behind his back. 7. Placing reliance on the decision in Kunjan Singh Vs. State of M.P. and Others, 2003 (3) M.P.H.T. 370 : 2003 (4) MPLJ 284 ,- and Kailash Babu Rai Vs. State of M.P. and Others, 2008 (3) MPLJ 648 , it is contended by the learned Counsel for the petitioner that being in the Panchayat Service, the petitioner is governed by the provisions of Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999. It is contended that since his service as Panchayat Karmi has been terminated without following the procedure laid down in the Rules of 1999, the same stands vitiated and is liable to be quashed. Furthermore, while retorting to the objections raised on behalf of respondent that, the petition against resolution is not maintainable, learned Counsel for the petitioner while placing reliance on the decision in Abdul Hasan Qureshi Vs. State of M.P. and Others, 2008 (4) MPLJ 546 : 2009 (1) M.P.H.T. 322 , has to submit that the resolution having been held to be an order is assailable before this Court, as it has the effect of terminating the service of the petitioner. 8. Respondent Nos. 1 to 4 besides raising the preliminary objection as to maintainability of the petition have to submit that the petitioner having been appointed under the Scheme has been removed on the basis of misconduct after following the procedure laid down in the scheme. It is contended that the Panchayat found petitioner guilty of misconduct; therefore, he was removed from post of Panchayat Karmi. It is contended that the Panchayat found petitioner guilty of misconduct; therefore, he was removed from post of Panchayat Karmi. 9. Respondent No. 6 vide its return has to submit that the petitioner was afforded the opportunity of hearing by issuing show-cause notice. It is contended that the petitioner avoided to receive show cause; therefore, the Panchayat was constrained to pass the resolution as there were ample material on record indicating the misuse of Panchayat fund by the petitioner while working as Panchayat Karmi/ Secretary. It is urged that since lawful action has been taken against the petitioner no interference is warranted. 10. Considered the rival submissions. Regarding the preliminary objection as to maintainability of petition because of availability of alternative remedy, it is observed that the challenge of termination order being on the basis of non-compliance of the Rules of 1999, an alternative remedy will not bar the writ petition; therefore, the objection raised regarding maintainability of the petition is negatived. 11. Petitioner is a Panchayat Karmi and as held in Lalla Prasad Burman Vs. State of M.P. and Others, 2008 (3) M.P.H.T. 26 (DB), the Rules of 1999 are applicable to such Panchayat Karmis, they being member of Panchayat Karmi. It was held therein :-- 5. 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 29-6-2007 denotifying the appellant as Panchayat Secretary under Section 69 (1) of the Act. Sub-rule (3) of Rule 1 of the Rules, 1999 states that except otherwise 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 Panchayat 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. 12. Rule 5 of the Rules, 1999 lays down the penalties which can be imposed. Hence any action against the appellant for misconduct could only be taken in accordance with the Rules, 1999 and not otherwise. 12. Rule 5 of the Rules, 1999 lays down the penalties which can be imposed. Rule 6 provides for the authority who can impose penalty. Rule 7 lays down procedure to be followed before imposing minor or major penalties. 13. Admittedly in the case at hand the procedure as prescribed in the Rules of 1999 has not been followed. No charges are framed, nor any enquiry as contemplated under Rule 7 of Rules, 1999 has been held; therefore, the termination order vide impugned resolution cannot be upheld. 14. In Neelima Misra Vs. Harindar Kaur Paintal, AIR 1990 SC 1402 , it is observed in the context of quasi judicial and administrative function :-- 19...An administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation, the decision is called 'purely administrative' and there is no third category. This is what was meant by Lord Reid in Ridge Vs. Baldwin, (1963) 2 All. ER 66, 75-76:-- In cases of the kind with which I have been dealing the Board of Works......was dealing with a single isolated case. It was not deciding, like a judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated something analogous to a Judge's duty in imposing a penalty.......So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister or department may also be of that character and then the rules of natural justice can apply in much the same way.... 15. Scope of a domestic enquiry and its importance was noted in Union of India Vs. Mohd. Ramzan Khan, AIR 1991 SC 471 :-- 13.... There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attracted the principle of natural justice. Mohd. Ramzan Khan, AIR 1991 SC 471 :-- 13.... There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attracted the principle of natural justice. As this Court rightly pointed out in the Gujarat case AIR 1969 SC 1294 , the Disciplinary Authority is very often influenced by the conclusions of the Inquiry Officer and even by recommendations relating to the nature of punishment to be inflicted. With the Forty-Second Amendment, the delinquent officer, is not associated with the Disciplinary Inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the Disciplinary Authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching conclusion, rules of natural justice would be affected.... 16. Having thus considered the impugned resolution dated 21-7-2006 is hereby quashed. The respondents are, however, at liberty to initiate disciplinary proceedings in consonance with Rules of 1999. Since the charges against the petitioner are grave it would be lawful for the respondents even to place the petitioner under suspension under Rule 4 of 1999 Rules. 17. The petition is thus finally disposed of. However, no costs.