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Madhya Pradesh High Court · body

2017 DIGILAW 506 (MP)

Nanuram s/o Virbhan Dhangar v. State of M. P.

2017-04-13

VIVEK RUSIA

body2017
ORDER : The petitioner has filed the present petition being aggrieved by the order dated 8-8-2016 passed by the Respondent No. 3 by which he has been attached from the post of “Panchayat Secretary”, Gram Panchayat, Budi to Janpad Panchayat Pati, District Badwani. 2. Facts of the case are as under:— The petitioner was initially appointed as “Panchayat Karmi” in Gram Panchayat, Walan. Thereafter vide order dated 3-10-2006, he was notified as “Panchayat Secretary” by the Collector, Badwani. Under section 69(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. The work of the petitioner as a Secretary was duly recognized and appreciated by the Higher Authorities and the petitioner was issued the Certificate under the Mukhyamantri Kanyadan Yojana, 2007 and 2008. Under the Swachchta Abhiyan because of the efforts made by the petitioner, Gram Panchayat also given the award. Vide order dated 16-1-2013, the petitioner was transferred from Gram Panchayat, Walan to Gram Panchayat, Budi. That by the impugned order (Annexure P/1) dated 8-8-2016 issued by Chief Executive Officer, Jila Panchayat, Badwani, the petitioner has been attached to the Janpad Panchayat, Pati, District Badwani. In the said order it is alleged that the Sarpanch and all the Panch of the Gram Panchayat has made a complaint against him which was got enquired by Block Panchayat Officer who has also recommended for removing the petitioner from Gram Panchayat Budi. Therefore, on the basis of the report and complaint, the petitioner has been attached to the Janpad Panchayat Pati, District Badwani. Hence, the petitioner has filed the present petition. 3. The petitioner has challenged the impugned order (Annexure P/1) on the ground that the Chief Executive Officer, Jila Panchayat is not competent to pass the order of attachment under Panchayat Act and Rules made thereunder. There is no provision of attachment. The Panchayat Secretary can be de-notified, suspended and terminated but he cannot be attached by way of punishment. In the impugned order the allegations of negligence and dereliction of duties were levelled. Therefore, the impugned order is causing stigma. The violation of principle of natural justice has also been raised that without issuing show-cause notice and without affording an opportunity of hearing, the impugned order was passed. 4. While issuing notices to the Respondents, vide order dated 30-8-2016 the effect of order dated 8-8-2016 was stayed. 5. Therefore, the impugned order is causing stigma. The violation of principle of natural justice has also been raised that without issuing show-cause notice and without affording an opportunity of hearing, the impugned order was passed. 4. While issuing notices to the Respondents, vide order dated 30-8-2016 the effect of order dated 8-8-2016 was stayed. 5. The Respondents filed the return along with an application [I.A. No. 376/2017] for vacating the stay order. It is submitted that the services of the petitioner has been absorbed under the Madhya Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011 [in brief “the Rules, 2011”] and the appointing authority of Panchayat Karmi is Chief Executive Officer, Jila Panchayat. It is submitted that the various complaints were received against the working of the petitioner and because of those complaints, a show-cause notice was issued on 9-12-2015 and 8-3-2016 but the petitioner did not appear to submit the reply. The Block Panchayat Officer has recorded the statements of Sarpanch, Gram Panchayat Budi who has alleged that the petitioner is not performing his duties. On 7-6-2016 the report was submitted by the Chief Executive Officer, Janpad Panchayat Pati to the Respondent No. 3. In pursuant to the said report, the impugned order was passed in accordance with law. The attachment with the Janpad Panchayat is not a punishment. Therefore, there is no need to conduct a detailed enquiry. Hence, the petition is devoid of merit and substance. The Division Bench of this Court in the case of Manoj Kumar Tiwari v. Collector, reported in 2012 MPLJ Online 21 : 2012 SCC Online MP 2358 has held that the Chief Executive Officer is having administrative and supervisory control over the Secretary. Therefore, he can place him under suspension. 6. The petitioner filed the rejoinder to the return in which it is submitted that he has never received the show-cause notice dated 9-12-2015 and 8-3-2016. The petitioner is under the administrative control of Gram Panchayat, therefore, Gram Panchayat is competent to take disciplinary action. It is further submitted that the complaint was made by husband of Sarpanch who has no authority to interfere in the working of Panchayat and make complaint. The ex - Sarpanch and other villagers have given affidavits in support of the petitioner that he is doing the work in the interest of Panchayat. It is further submitted that the complaint was made by husband of Sarpanch who has no authority to interfere in the working of Panchayat and make complaint. The ex - Sarpanch and other villagers have given affidavits in support of the petitioner that he is doing the work in the interest of Panchayat. The petitioner has filed the copy of Circular of State Government dated 20-1-2006 by which direction has been given to constitute a Committee headed by Sub Divisional Officer to conduct the enquiry in respect of development work under the Gramin Rojgar Scheme. The Block Panchayat Officer is not competent to conduct the enquiry. Various photographs have been filed to establish that the development work was appreciated by the Panchayat by the News Channels. 7. I have heard Shri Jitendra Verma, learned counsel on behalf of the petitioner and Shri Rohit Mangal, learned Govt. Advocate on behalf of the Respondents/State. 8. The petitioner was initially appointed as Panchayatkarmi. Thereafter he was notified under section 69 of Panchayat Act as Secretary. By virtue of Rule 5 of Rules, 2011 cadre has been made for Gram Panchayat Secretary in each district and all the previously appointed Gram Panchayat Secretary who are holding the office before amendment of this rules have been absorbed in the cadre of Panchayat Secretary. The other service conditions of the Panchayatkarmi has been prescribed in Rule 6 of Rules, 2011 and under sub-rule (7) of Rule 6 of Rules, 2011 services of Gram Panchayat Secretary are transferred on administrative ground under the policy of the State Government. The Gram Panchayat Secretary may be transferred, if necessary, after proper enquiry of the complaints on the recommendation of the Chief Executive Officer, Janpad Panchayat. Sub-rule (7) of Rule 6 of Rules, 2011 is reproduced below:— “(7) The Gram Panchayat Secretary may be transferred on administrative ground or on the basis of his application within the district in accordance with the transfer policy issued by the Commissioner Panchayat Raj. The Gram Panchayat Secretary may be transferred, if necessary, after proper enquiry of the complaints on the recommendation of the Chief Executive Officer, Janpad Panchayat.” 9. Rule 7 of Rules, 2011 provides for discipline and control under the Madhya Pradesh Panchayat Service (Conduct) Rules, 1998 which has been made applicable to the Gram Panchayat Secretary who shall be under the administrative control of the Gram Panchayat. Rule 7 of Rules, 2011 provides for discipline and control under the Madhya Pradesh Panchayat Service (Conduct) Rules, 1998 which has been made applicable to the Gram Panchayat Secretary who shall be under the administrative control of the Gram Panchayat. Rule 7 of Rules, 2011 is reproduced below:— “7. Discipline and Control.— The rules of the Madhya Pradesh Panchayat Service (Conduct) Rules, 1998 shall be applicable to the Gram Panchayat Secretary. The Gram Panchayat Secretary shall be under the administrative control of the Gram Panchayat. Disciplinary action against the Gram Panchayat Secretary shall be taken in accordance with the prescribed procedure within specified time period.” 10. The Full Bench of this Court in the case of Chandrapal Yadav v. State of M.P., 2016 (1) M.P.L.J. 685 has held that no prior notice or opportunity of hearing before suspension of the Gram Panchayat Secretary or withdrawal of charge of Secretary (de-notified) is required to be given by the Competent Authority to the concerned employee who is facing serious criminal charges. Therefore, the Panchayat Secretary can be suspended on registration of criminal charges or against whom Departmental Enquiry is instituted. But in the present case the petitioner has not been placed under suspension on account of criminal case and no charge-sheet has been issued. 11. The husband of Sarpanch has made a complaint to the Collector against the petitioner alleging that the construction work is not in progress, therefore, he be transferred to some other Panchayat. According to the Respondents the notice dated 9-12-2015 and 8-3-2016 were issued to the petitioner but he did not submit any reply. By way of rejoinder, the petitioner submitted that he has never received those notices. He has denied his signatures over these notice. No additional return has been filed to controvert this fact. The Block Panchayat Officer has conducted the enquiry and submitted its report. He recorded joint statements of Sarpanch and other local villagers on 18-5-2016. All these materials have been used against the petitioner for passing the impugned order of attachment. The petitioner has not been supplied the enquiry report as well as the statements recorded by the Block Panchayat Officer. The Respondents has submitted that the order of attachment is not by way of punishment. In the Rules, 2011 there is a provision of transfer even on complaint. The petitioner has not been supplied the enquiry report as well as the statements recorded by the Block Panchayat Officer. The Respondents has submitted that the order of attachment is not by way of punishment. In the Rules, 2011 there is a provision of transfer even on complaint. But there is a provision of suspension under the Conduct Rules but there is no such provision of attachment of Secretary to the Janpad Panchayat because the Panchayat Secretary is the employee of Gram Panchayat. The Chief Executive Officer may be Competent Authority but the Panchayat Secretary are under the disciplinary control of Gram Panchayat. Therefore, on any allegation if any action is required to be taken against the petitioner, the Gram Panchayat is competent to take action under Rule 7 of Rules, 2011 and that order is appealable under Rule 8 of Rules, 2011. If on the charges the petitioner is required to be removed from the Gram Panchayat, that would be under sub-rule (7) of Rule 6 of Rules, 2011. He could have been transferred to other Gram Panchayat as Panchayat Secretary. 12. Even otherwise in the impugned order dated 8-8-2016 charges of negligence and dereliction of duties have been levelled against the petitioner. It is settled law in service jurisprudence that if the order is stigmatic, then the same cannot be passed without affording opportunity of hearing to the petitioner. If any material is being used against the employee, then the employer is required to supply copies thereof and all these are subject to the cross-examination. The apex Court in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465 has considered the scope of providing reasonable opportunity. The Apex Court has held that opportunity of cross-examination is an integral part and parcel of the principles of natural justice. Para 28, 29 and 30 is reproduced below :— “28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination. 29. In Rajiv Arora v. Union of India, (2008) 15 SCC 306 this Court held : (SCC p. 310, paras 13-14) “13…. Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation…. 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review.” 30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice.” 13. In view of the above, the impugned order cannot be sustained on violation of principles of natural justice. 14. Learned Govt. Advocate has placed reliance on the judgment in the case of Manoj Kumar Tiwari (supra) in which order of attachment issued by the Chief Executive Officer was not interfered by the High Court as he is competent under Rules 3 and 4 of Madhya Pradesh Panchayat Service (Discipline & Appeal) Rules, 1999. 14. Learned Govt. Advocate has placed reliance on the judgment in the case of Manoj Kumar Tiwari (supra) in which order of attachment issued by the Chief Executive Officer was not interfered by the High Court as he is competent under Rules 3 and 4 of Madhya Pradesh Panchayat Service (Discipline & Appeal) Rules, 1999. The aforesaid order was passed placing reliance over the Madhya Pradesh Panchayat (Power and Functions of Chief Executive Officer) Rules, 1995 and Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999. Under Rule 7 of Rules, 2011, the Panchayat Secretary are under the disciplinary control of Gran Panchayat. Even otherwise the order passed in the case of Manoj Kumar Tiwari (supra) was challenged by the petitioner in Writ Appeal No. 529 of 2012 and vide order dated 18-2-2012 the writ appeal was disposed of directing the Collector to look into the matter and decide the same expeditiously and in accordance with law. The operative portion is reproduced below:— “In view of the limited prayer made by the learned senior counsel appearing for the appellant the order passed by the learned single judge is modified to the limited extent of permitting the appellant to take up proceedings before the Collector, Satna, by filing a fresh representation in respect of his grievance. It goes without saying that in case the appellant does so along with a copy of the order passed today and a copy of the petition within four weeks of obtaining the same, the concerned Collector shall look into the matter and decide the same expeditiously in accordance with law.” 15. Since while issuing the notice, the operation of the impugned order was stayed by this Court. Therefore, the said interim protection shall continue for the period of further 60 days (sixty days) and the Collector, Badwani is directed to look into the matter and decide the same expeditiously in accordance with law. The petitioner is directed to file a detailed representation along with all the documents before the Collector, Badwani within a period of four weeks from today who shall decide the same in accordance with Panchayat Act and the Adhiniyam 1993, Rules 1999 and Rules 2011 within a period of 60 days (sixty days) and thereafter any action required to be taken against the petitioner, then he shall give a direction to the Competent Authority to take action against the petitioner if required. The impugned order dated 8-8-2016 is hereby set-aside. 16. The petition stands allowed with above direction. No order as to costs. Cc as per rules.