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2011 DIGILAW 83 (MP)

Rajendra v. State of M. P.

2011-01-20

S.N.AGGARWAL

body2011
JUDGMENT 1. The appellant is an unfortunate father who lost his married daughter, who died an unnatural death within four years of her marriage. A case under section 304-B IPC was registered against the husband of his daughter and other members of his family on the complaint of the appellant. In that case, the accused persons being in-laws of the daughter of the appellant were acquitted by the trial Court vide judgment dated 26.9.2001 in Sessions Trial case No. 22912000. While acquitting the accused persons, the trial Court ordered for registration of a criminal case against the appellant under section 193, 194 and 195 IPC for giving false evidence to procure conviction of the accused persons in a case registered against them under section 304B IPC. The appellant on being tried for the offence under section 193, 194 and 195 IPC has been convicted by the Sessions Court for the offence under section 195 IPC vide impugned judgment dated 1.5.2003 in Sessions Trial case No. 180/2002. Aggrieved from his conviction, the appellant has filed this appeal seeking setting aside of his conviction. 2. Heard learned counsel for the both the parties for final disposal of this appeal. 3. Mr. V. K. Saxena, learned senior counsel appearing on behalf of the appellant has argued that the appellant initially supported the case of the prosecution on 22.2.2001 as advised to him by the police/investigating officer, but later on, when his conscience did not permit him to get the accused persons falsely convicted, gave evidence whatever according to him was the truth and this he did when he was cross-examined on 11.4.2001. Learned counsel further argued that even the trial Court in its judgment was not sure whether the false evidence given by the appellant was to procure conviction of the accused persons or to secure their acquittal. It is submitted that the appellant could not have been passed by the Collector and the findings as recorded by him. Against the said order second revision was preferred before the State Minister which was allowed by the Order dated 5.11.2007 (Annexure-P/5) and the orders passed by the Collector and Commissioner has been set aside. 3. It is submitted that the appellant could not have been passed by the Collector and the findings as recorded by him. Against the said order second revision was preferred before the State Minister which was allowed by the Order dated 5.11.2007 (Annexure-P/5) and the orders passed by the Collector and Commissioner has been set aside. 3. It is submitted by Shri Pathak, learned counsel for the petitioner, that the orders passed by the Collector and the Commissioner have been set aside by respondent No.3 on the pretext that the procedure prescribed for identification of a Panchayat Secretary has not been followed and a show cause notice has not been issued to impose the penalty as specified under M.P. Panchayat Service (Discipline and Appeal) Rules, 1999. It is contended by him that such finding is contrary to the record. The notice to show cause has already been issued by the competent authority i.e. Collector on 28.9.2006 and reply thereof was submitted by the petitioner. In view of the aforesaid, the findings recorded by the Minister concerned, while passing the impugned order in second revision is unsustainable in law. It is further contended by him that the second revision against the order of first revision passed by the Commissioner is not maintainable, therefore, the order dated 5.11.2007 (Annexure-P/5) passed by respondent No.3 is illegal and without jurisdiction. In view of the said submissions, prayer is made to quash the order dated 5.11.2007 (Annexure-PIS) passed by respondent No.3 and to uphold the order dated 5.2.2007 (Annexure-P/1) of the Collector and order dated 5.6.2007 (Annexure-P/2) of the Commissioner. 4. Shri R.B. Patel, learned counsel for respondent No.1, submits that the respondent No.1 was declared as a Panchayat Secretary, however, his services falls within the Panchayat service as defined under Rule 2 (i) of the M.P. Panchayat Service (Discipline and Appeal) Rules, 1999. If some allegations have been imputed against respondent No.1, to remove him from any post including denotification from the post of Panchayat Secretary, then the procedure as specified under Rule 7 has to be followed. In violation of the said procedure, order of denotification, if any, is illegal and respondent No.3 has not committed any error in passing the order dated 5.11.2007 (Annexure-PIS). In violation of the said procedure, order of denotification, if any, is illegal and respondent No.3 has not committed any error in passing the order dated 5.11.2007 (Annexure-PIS). My attention has been drawn to the procedure as specified under Rule 7 of the said rules and the decision of the Division Bench of this Court in the case of Lalla Prasad Burman v. State of M.P. and others, 2008 (II) MPWN 101 = 2008 (3) MPLJ 394 and the subsequent decision in the case of Uttam Singh v. State of M.P. 2010 (III) MPWN 68 = ILR 2010 MP 891. Learned counsel for respondent No.1 has laid much emphasis on the maintainability of the petition as it has not been filed by the Gram Panchayat afer due resolution of authorization in form to the petitioner who is a Sarpanch of the Gram Panchayat. Reliance has been placed on the decision of this Court in the case of Gram Panchayat, Bamra/v. Jagdish Singh Rawat and others, 2008 (II) MPWN 102 = 2008 (3) MPLJ 127 . In view of the said submission, it is urged that the impugned order Annexure- P/5 has rightly been passed by respondent No.3 and is liable to be upheld by dismissing the petition filed by the petitioner. 5. Shri Punit Shroti, learned counsel for respondent No.3, submits that the order dated 5.11.2007 (Annexure-P/8) has rightly been passed because the procedure as prescribed under the Rules of 1999 for imposition of the major penalty has not been followed, therefore, the petition tiled by the petitioner may be dismissed. 6. After having heard learned counsel appearing for the parties and on perusal of the record, first of all the issue of filing of second revision against the order of Commissioner passed in first revision requires to be dealt with. The said issue has already been considered by this Court in the case of Abdul Hasan Qureshi v. State of M.P. and others 2009 (1) JLJ 320 = 2008 (4) MPLJ 546 , wherein it is held that the second revision before the State Government against the revisional order of the officers, mentioned in Rule 5 of M.P. Panchayats (Appeal and Revision) Rules, 1995 would lie after final disposal of the first revision by such officers, in view of clause (ii) of Rule 5 (2) of the said rules. In view of the aforesaid, the argument as advanced by the learned counsel for the petitioner that the second revision is not maintainable is hereby rejected. 7. Now the question as raised by learned counsel for respondent No.1 with respect of non-maintainability of the petition filed by the Sarpanch is being considered, it is seen from the record that initially when the order dated 5.2.2007 (Annexure-P/1) was passed by the Collector, Gram Panchayat was not a party in the said case, but when it was challenged before the Commissioner by respondent No.1, Sarpanch of Gram Panchayat was made a party. Thus, if a petition filed by the Sarpanch who was a party before the revisional Court, it may be maintained by him when Gram Panchayat was not made party to issue writ of certiorari. In such circumstances, respondent No.1 cannot derive any benefit of the case of Gram Panchayat Bamrol v. Jagdish Singh Rawat and others (supra). 8. Now coming to the point whether the order passed by the revisional authority i.e. respondent No.3 is bad or not. It is seen from the record that the orders passed by the Collector and Commissioner have been quashed because the procedure to denotify a Panchayat Secretary of the Gram Panchayat has nor been followed. In the light of the decisions of this Court in the case of Lalla Prasad Burman v. State of M.P and others (supra) and Uttam Singh v. State of M.P. (supra), it is apparent that the services of a Panchayat Secretary of Gram Panchayat are governed by the rules which known as M.P. Panchayat Service (Discipline and Appeal) Rules, 1999. The denotification of the PaI1Chayat Secretary is amounting to removal as specified under Rule 5 (b) of the said mles. For the purpose of imposing major penalty on the basis of imputation of allegations, a procedure has been prescribed under Rule 7 of the said rules whereby it is apparent that on a fact finding enquiry, the charges must be framed on the basis of the imputation of the allegations and thereafter the enquiry ought to have been conducted in the manner in which it is prescribed. On perusal of the record of the department, it is apparent that after a fact finding enquiry, only a show cause notice was issued by the Collector without holding any enquiry, furnish the opportunity of hearing to prove or disprove the charges. Thus, the procedure as prescribed under Rule 7 of the said Rules have been not been followed. If respondent No.3 has passed an order observing the same, it is in confirmity with the law, however, no interference is called for by this Court. 9. In view of foregoing the order dated 5.11.2007 (Annexure-P/8) passed by respondent No.3 is hereby upheld, accordingly, respondent No.1 shall be entitled to get all consequential benefits. 10. In the result, the petition filed by the petitioner has no merit and is, accordingly, dismissed.