Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 96 (MP)

Hiralal Kachawa v. State of M. P

2016-02-08

S.C.SHARMA

body2016
ORDER : S.C. Sharma, J. 1. Mr. Sunil Yadav, learned counsel for the petitioner. Ms. Pritha Moitra, learned counsel for the respondent/State. 2. The petitioner before this Court has filed this present petition being aggrieved by order dated 14/11/2011 passed by Collector, Mandsaur in Case No.147/B-121/10-11. The petitioner is also against the order passed by the appellate authority on 11/06/2012 by which the appeal preferred by the petitioner has been dismissed. 3. The facts of the case reveal that the petitioner was serving as a Panchayat Karmi and a show cause notice was issued on 20/10/2011. The petitioner has categorically denied the allegation levelled in a show cause notice and thereafter, by the impugned order he has been de-notified as a Panchayat Karmi and the appeal has also been dismissed. 4. Learned counsel for the petitioner at the outset has drawn the attention of this Court towards the judgment delivered by the Division Bench of this Court in the case of Lalla Prasad Burman v. State of M.P. & Others reported in 2008 (3) MPLJ 394 and his contention is that the action of the respondent is bad in law as no charge sheet has been issued at any point of time and no formal inquiry was held. 5. The aforesaid fact that no charge sheet was issued nor any inquiry was conducted, has not been disputed in the return by the respondent nor the factum of holding an inquiry is reflected from the impugned order. 6. Paragraph No.5 to 9 of the aforesaid judgment delivered by the Division Bench of this Court reads as under:- “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 de-notifying 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. 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. 6. Part III of the Rules, 1999 provides for penalties. Rule categorised the minor penalties and the major penalties which can be imposed on a member of the Panchayat Service. Under Clause (b) major penalties which can be imposed on a member of a Panchayat Service have been enumerated and reduction in rank and removal from service have been categorised as major penalties. When a Secretary of a Gram Panchayat is either reverted to the rank of Panchayat Karmi or removed from the post of Secretary, he suffers a major penalty mentioned under Clause (b) of Rule 5 of the Rules, 1999. 7. Rule 7 of the Rules, 1999 provides that no order imposing on a member of the Panchayat Service any of the major penalties shall be passed except after a formal inquiry is held as far as may be in the manner provided therein. Hence, unless the procedure laid down in the 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 stand taken by the appellant that he could not have been removed from the post of Secretary, Gram Panchayat or could not have been reverted to a lower post of Panchayat Karmi without an inquiry appears to be correct. 8. Nonetheless Rule 4 of the Rules, 1999 provides that the Appointing Authority or any authority to which it is subordinate or Disciplinary Authority may place a member of Panchayat Service under suspension where a disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial. In the present case, since; an inquiry into the charges of misconduct against the appellant has been ordered by the Collector, Shahdol, a disciplinary case is pending against him. In the present case, since; an inquiry into the charges of misconduct against the appellant has been ordered by the Collector, Shahdol, a disciplinary case is pending against him. That apart a criminal case for violation of the provisions of the Essential Commodities Act is also pending against the appellant. Hence, the Appointing Authority or the Disciplinary Authority or any authority to which the Appointing Authority is subordinate have the power to place the appellant under suspension. But instead of placing the appellant under suspension pending disciplinary proceedings and pending the criminal trial, the Collector, Shahdol has reverted the appellant to the rank of Panchayat Karmi or has removed him from the post of Panchayat Secretary contrary to the provisions of the Rules, 1999 as discussed above. 9. In the result, we allow this appeal, set aside the impugned order dated 30-7-2007 passed by the learned Single Judge, quash the order dated 29-6-2007 of the Collector, Shahdol as well as the order dated 16-7-2007 of the Commissioner, Rewa Division, and leave it open for the Collector to pass an order of suspension of the appellant in accordance with the Rules, 1999.” 7. In light of the aforesaid judgment as de-notification of Panchayat Karmi amounts to imposing major penalty under Section 5(b) of M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 an inquiry should have been held under Rule 7 as required under the Rules of 1999 and the same has not been done and therefore, in light of the aforesaid, the impugned order dated 14/11/2011 and 11/06/2012 are hereby set aside. The petitioner shall be entitled for all consequential benefits flowing out of this order. 8. With the aforesaid, the writ petition stands allowed. C.C. as per rules.