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2015 DIGILAW 1355 (HP)

Vijay Kumar v. State of Himachal Pradesh

2015-09-23

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. This writ petition has been filed seeking following reliefs:- “It is, therefore, respectfully prayed that this petition may kindly be allowed. The order dated 13.3.2012, Annexure P-16 and order dated 21.10.2014 Annexure P-20 may kindly be quashed and set aside by issuance of appropriate writ, order or direction as may be deemed necessary in the facts and circumstances of the case.” Facts in brief may be noticed. 2. The petitioner was working as Panchayat Sahayak and is alleged to have failed to supply certain information sought for by private respondent under the Right to Information Act, (for short the ‘Act”) which ultimately culminated in show cause notice asking him why his contract should not be rescinded under Rule 8 (5) of the H.P. Panchyati Raj (Appointment and Condition of Service of Panchyat Sahayak) Rules, 2008 (for short the ‘Rules’). The petitioner filed a detailed reply, but despite that his contract was rescinded vide order dated 13.3.2013 (Annexure P-16), constraining him to file an appeal before the Appellate Authority i.e. Deputy Commissioner, Hamirpur, who too dismissed the same vide order dated 21.10.2014 (Annexure P-20). Both these orders have been assailed on number of grounds, as taken in the petition. 3. The official respondents have filed the reply justifying their action in rescinding the contract on the ground that the petitioner had been working as Panchayat Sahayak for the last 13 years and therefore, was well aware of the provisions of the ‘Act’ and was, therefore, duty bound to have supplied the information sought for by the private respondent within the time frame as envisaged under the Act and having failed to do so, the provisions of Rule 8(5) of the Rules have been rightly invoked to rescind the contract of service of the petitioner. I have heard the learned counsel for the parties and have also gone through the records of the case. 4. I have heard the learned counsel for the parties and have also gone through the records of the case. 4. Rule 8(5) of the Rules reads as under:- “(5) Notwithstanding anything contained in these rules, if it comes to the notice of the Rural Development or Panchyat Raj Department that there has been gross misutilization or embezzlement of funds by the Panchyat Sahayak or he has been guilty of misconduct in the discharge of his duties or has failed to perform the duties assigned to him by the Panchyat Samiti or any authority of the above departments and in pursuance thereof his continuance in the office of the Gram Panchyat is undesirable and the Panchyat Samiti fails to disengage his services by terminating his contract, in that event the Director of Panchyati Raj may direct the District Panchyat Officer concerned or any other officer to conduct an inquiry against such Panchyat Sahayak and the District Panchyat Officer on the basis of inquiry report, after scrutinizing the material on record and satisfying himself may issue the order for termination of contract of the Panchyat Sahayak concerned.” 5. It would be evident from the perusal of the aforesaid rule that District Panchyat Officer is obliged to satisfy himself that there has been a gross misutilization or embezzlement of funds by the Panchyat Sahayak or he has been guilty of misconduct in the discharge of his duties or has failed to perform the duties assigned to him by the Panchyat Samiti or any authority of the Rural Development or Panchyati Raj Department and in pursuance thereof his continuance in the office of Gram Panchyat is undesirable and in case the Panchyat Samiti fails to disengage his services by terminating his contract, in that event the Director of Panchyati Raj may direct the District Panchyat Officer concerned or any other officer to conduct an inquiry against such Panchyat Sahayak and the District Panchyat Officer after scrutinizing the material on record and satisfying himself may issue order for termination of contract of the Panchyat Sahyak concerned. 6. The rule clearly envisages the District Panchyat Officer to perform an affirmative act of satisfying himself and therefore, reasons have to be recorded indicating satisfaction and absence of recording of satisfaction is contrary to the mandate/command of law and makes the decision sensitively susceptible. 6. The rule clearly envisages the District Panchyat Officer to perform an affirmative act of satisfying himself and therefore, reasons have to be recorded indicating satisfaction and absence of recording of satisfaction is contrary to the mandate/command of law and makes the decision sensitively susceptible. The District Panchyat Officer is legally obliged to record that he is satisfied after scrutinizing the material on record and after going through the inquiry report that the order of termination of contract of the Panchyat Sahayak is absolutely necessary. The said satisfaction has to be reached before ordering the termination of contract of the Panchyat Sahayak. It would not be an exaggeration to state that the abdication of said power tantamounts to breach of Rule of Law because it not only gives a go by to the warrant of law, but also creates a dent in the basic index of law. Therefore, in case the rule is not followed both in letter and spirit, the action would be vitiated and can never come within the realm of curability for there has been statutory non-compliance from the very inception. 7. In this background, in case the order of recession of contract passed by respondent No. 4 is perused, it is evidently clear that the same is bereft of any reasons. In fact, respondent No. 4 after reproducing the allegations against the petitioner and reply submitted thereto, has recorded only the following findings to rescind the contract of the petitioner. “That after deep inquiry into the statement made by Shri Vijay Kumar, inquiry report of District Audit Officer-cum-Panchyat Inspector and the reply submitted by him to the Show Cause Notice the allegations of dereliction in discharge of duties, unsuccessful in upkeep of Panchyat record time and again and interpolation in the Panchyat records without codal formalities have been proved against the employee. Therefore, on the basis of above facts the undersigned hereby orders the rescission of contract of Shri Vijay Kumar Panchyat Sahayak (Contract) Gram Panchyat Jamli with immediate effect after completion of required formalities under H.P. Panchyati Raj (Appointment and Conditions of Service of Panchayat Sahayak) Rules 2008.” 8. How respondent No. 4 came to the aforesaid conclusion is not at all forthcoming. Indisputably, the order passed by respondent No. 4 has resulted in civil and evil consequences upon the petitioner. The recording of reasons, therefore, in such case was not an empty formality. 9. How respondent No. 4 came to the aforesaid conclusion is not at all forthcoming. Indisputably, the order passed by respondent No. 4 has resulted in civil and evil consequences upon the petitioner. The recording of reasons, therefore, in such case was not an empty formality. 9. Now in case the order passed by the Appellate Authority is perused, it would be noticed that it inturn formulated three points for determination, which are as under:- “i) Has proper opportunity of being heard been provided to Appellant? ii) Is there a case of double jeopardy i.e. being punished for the same mistake twice? iii) Is the punishment disproportionate to the mistake committed?” 10. After formulating the aforesaid points, it was observed that since the petitioner had been afforded opportunity to explain his position at different stages of the proceedings, therefore, he could not be heard to complain that he had not been afforded an opportunity to be heard. Likewise, the finding regarding double jeopardy was negated by observing that no case was made out since the proceedings had been conducted by two different authorities. Lastly, the issue regarding the punishment being disproportionate was answered against the petitioner by observing that since the petitioner had tempered/misplaced/destroyed the record, no leniency in the matter could be shown. 11. It would be noticed that even this order does not disclose any reasons on the basis of which the Appellate Authority came to the conclusion that the petitioner in fact had committed breach of Rule 8(5) of the Rules, resulting in rescinding of his contract. 12. In absence of any satisfaction having been recorded by the District Panchyat Officer at the first stage, it was incumbent upon the Appellate Authority to have firstly reached a conclusion on the basis of record that the misdemeanor/misconduct etc. on the part of the petitioner in fact falls within sub rule 5 of Rule 8 and it is only thereafter that the points of determination could be framed. 13. It is trite that right of appeal under the statute is a valuable and substantive right conferred by the statute, i.e. H.P. Panchyati Raj Act and Rules framed there under, wherein all questions of law and fact are open for adjudication. Indisputably, both the authorities have failed to record any reasons before drawing their conclusions regarding breach of rules. 13. It is trite that right of appeal under the statute is a valuable and substantive right conferred by the statute, i.e. H.P. Panchyati Raj Act and Rules framed there under, wherein all questions of law and fact are open for adjudication. Indisputably, both the authorities have failed to record any reasons before drawing their conclusions regarding breach of rules. It is the reasons that have to precede the conclusion and not the other way around. 14. Having said so, both the impugned orders cannot be sustained and accordingly quashed and set aside. Since the action of the respondents is being quashed only on account of procedural technicalities, it shall be open to the respondents, if they so choose to proceed against the petitioner strictly in accordance with law. With these observations, the petition is allowed as aforesaid, leaving the parties to bear their costs.