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2012 DIGILAW 1241 (MP)

Narayan Singh v. State of M. P.

2012-12-03

G.D.SAXENA, S.K.GANGELE

body2012
ORDER 1. Heard on I.A. No. 4508 of 2011, which is an application under section 5 of the Limitation Act for condonation of delay. There is delay of 13 days in filing this appeal. 2. Considering the reasons assigned in the application, the application (I. A. No. 4508 of 2011) is allowed and delay in filing the appeal is hereby condoned. 3. Also heard on admission. 4. This writ appeal has been filed by the appellant against the order dated 4.5.2011 passed by learned Single Judge in Writ Petition No. 242 of 2010 (S). 5. The appellant was appointed as a Panchayat Karmi vide order dated 29.10.1995. He was notified as Panchayat Secretary by the Collector under the provisions of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. A criminal case for the offences punishable under sections 420, 467, 468 of Indian penal Code was registered against the appellant. He was de-notified as Panchayat Secretary vide order dated 16.10.2007 and his services were terminated as Panchayat Karmi vide resolution dated 9.8.2009 on the recommendation of Sub-Divisional Officer. The appellant filed an appeal before the Commissioner, Gwalior Division Gwalior, that was also dismissed vide order date 8.9.2009. The learned Single Judge dismissed the writ petition filed by the appellant on the ground that a remedy of revision was available to the appellant. 6. Learned counsel for the appellant has submitted that the order passed by the learned Single Judge is contrary to law because the order of termination of the appellant was passed without conducting an enquiry. It is further submitted by learned counsel for the appellant that subsequently the appellant has also been acquitted from the offences punishable under sections 467, 471, 409 and 420 of Indian Penal Code passed by the Judicial Magistrate First Class, Seondha in Criminal Case No. 560 of 2009 vide judgment date 10.8.2011. Thereafter, against the judgment of acquittal, an appeal i.e. Criminal Appeal No. 3. of 2012 was filed by the State. That criminal appeal has also been dismissed by the First Additional Sessions Judge, Datia vide judgment dated 18th September, 2012. 7. The Division Bench of this Court in the case of Lalla Prasad Burman Vs. Thereafter, against the judgment of acquittal, an appeal i.e. Criminal Appeal No. 3. of 2012 was filed by the State. That criminal appeal has also been dismissed by the First Additional Sessions Judge, Datia vide judgment dated 18th September, 2012. 7. The Division Bench of this Court in the case of Lalla Prasad Burman Vs. State of M.P. and Ors., 2008(II) MPWN 101 = 2008 (3) M.P.L.J. 394 has held as under in regard to de-notifying and termination of service of a Panchayat Secretary:- “Where the Collector, Shahdol, de-notified the appellant Panchayat Karmi, as a Panchayat Secretary under section 69(1) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, he suffered a major penalty mentioned under clause (b) of Rule 5 of the Rules, 1999. Unless the procedure laid down in 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 impugned order of the Single Judge dismissing the writ petition of the appellant summarily is set aside and the orders of the Collector, Shahdol as well as Commissioner, Rewa Division are quashed.” 8. From the aforesaid judgment passed by Division Bench of this Court, it is clear that Panchayat Secretary or panchayat Karmi could not be be terminated without due procedure of rule laid down in Rule 7 of Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 [hereinafter referred to as “the Rules of 1999”] 9. Admittedly, in the present case, a show cause notice was issued to the appellant and the appellant refused to take the notice. Thereafter, his services were termimated on account of registration of a criminal case and an enquiry was not conducted against the appellant as held by Division Bench of this Court in the case of Lalla Prasad Burman (supra). Subsequently, the appellant has also been acquitted from the criminal offences. 10. In our opinion, looking to the aforesaid facts and circumstances of the case, it was obligatory on the part of the Panchayat or the authority to conduct an enquiry against the appellant. If the order is passed contrary to law then the availability of alternative remedy could not be a bar to exercise the jurisdiction conferred upon the Court. 11. In our opinion, looking to the aforesaid facts and circumstances of the case, it was obligatory on the part of the Panchayat or the authority to conduct an enquiry against the appellant. If the order is passed contrary to law then the availability of alternative remedy could not be a bar to exercise the jurisdiction conferred upon the Court. 11. Hence, the appeal filed by the appellant is disposed of with the following directions :- (i) That, the impugned order passed by learned Single Judge is hereby set aside. (ii) That, the order of termination of service of the appellant; the resolution passed by Gram panchayat and the order of appellate authority are hereby quashed. (iii) That, the panchayat is directed to conduct a regular enquiry against the appellant as envisaged under the Rules of 1999. (iv) That, looking to the aforesaid facts of the case, in our opinion, it would not be proper to reinstate the appellant in service, however, the Panchayat would be at liberty to pass an appropriate order after completion of enquiry against the appellant. (v) That, the aforesaid enquiry be concluded within a period of six months from the date of receipt of certified copy of this order. No order as to costs.