Dharmendra Chokase vs State of M.P. and Others

Sujoy Paul, J.—In this petition filed under Article 226 of the Constitution, the petitioner has assailed the order dated 08/11/2002 (Annexure P-8), whereby he is restrained from exercising secretarial powers. This order is affirmed in Appeal on 09/09/2003 (Annexure P-1) which is also under challenge. In addition, the petitioner was terminated by Gram Panchayat by order dated 27/01/2003 (Annexure P-12). This order was not interfered with on technical ground by SDO by Annexure P/2 dated 27/06/2003. Accordingly, the order of Gram Panchayat dated 27/01/2003 (Annexure P-12) and appellate order dated 27/06/2003 (Annexure P-2) are also under challenge. The short and pointed submissions of Shri Raghuvanshi, learned counsel for the petitioner are as under:-

(I) The secretarial powers of the petitioner could not be taken away without following the mandatory provisions of Madhya Pradesh Panchayat Service (Discipline & Appeal) Rules, 1999 [herein-after referred to as "the Rules of 1999"]. By placing reliance on Lalla Prasad Burman Vs. State of M.P. and Others, , it is stated that the impugned order Annexure P/8 amounts to imposition of penalty which could not have been done without following the mandate of the rules.

(II) Assailing the order of Gram Panchayat Annexure P-12, it is stated that as per Rules of 1999, the Panchayat Karmi can be terminated only after following "due process", which has not been followed admittedly.

Shri Praveen Niwaskar, learned Deputy Government Advocate supported the orders impugned herein. He relied on an enquiry report Annexure R-II to submit that enquiry is conducted before withdrawing the secretarial powers from the petitioner.

Shri Ravindra Dixit, learned counsel for the Gram Panchayat submits that he is only concerned with the order of Gram Panchayat. Placing reliance on paragraphs 2 and 3 of the return, he submits that earlier Sarpanch with a view to accommodate one Shri Umesh Singh Dhakad as Secretary in place of petitioner, took aforesaid action against the petitioner. On the basis of Annexure P-12, a recovery of Rs. 40,000/- was ordered by the-then Sarpanch which was challenged by the petitioner before the Additional Collector. The said authority by order dated 11/08/2005 (Annexure R-I) gave a finding in favour of the petitioner and found that there is no misappropriation of money by the petitioner. Accordingly, in paragraph 2 of the reply, it is stated that present Gram Panchayat is ready to take the work of Secretary from the petitioner. Shri Dixit, fairly submits that the impugned order Annexure P-12 passed by the-then Sarpanch, is also bad in law.

I have head learned counsel for the parties and perused the record.

The judgment of Lalla Prasad Burman (supra) was followed almost in similar case Writ Petition No. 3032/2010(S) [Harvendra Singh Bhadoriya Vs. The State of M.P. & Others]. In the present case, although the respondents have filed an enquiry report Annexure R-II, but are unable to show that enquiry was conducted as mandated in Rule 7 of the Rules of 1999. No formal enquiry has been made in the presence of the petitioner. The enquiry which is conducted behind the back of the petitioner without affording any opportunity to him, will not fulfill the requirement of Rule 7 of the aforesaid. Accordingly, in my opinion, the judgment of Lalla Prasad Burman (supra) is squarely applicable in the present case. Consequently, the orders Annexure P-8 and Annexure P-1 whereby secretarial powers were restrained from the petitioner without following the rules, cannot be permitted to stand. Consequently, those orders are hereby set aside. However, liberty is reserved to the respondents to proceed against the petitioner in accordance with rules.

So far orders dated 27/01/2003 (Annexure P-12) and 27/06/2003 (Annexure P-2) are concerned, learned counsel for the Gram Panchayat has taken a specific stand that the earlier Sarpanch erroneously terminated the services of the petitioner. In the opinion of this Court, in any case, even for terminating the services of Panchayat Karmi which is a major punishment, Rule 7 of the said Rules was required to be followed. The petitioner has not been afforded any opportunity in consonance with Rule 7 aforesaid. Accordingly, in view of the aforesaid stand of Gram Panchayat and because of not following the rules, the order Annexure P-12 cannot be permitted to stand. In Annexure P-12, the respondents have taken a hyper technical stand that the certified copy has not been filed. Since this Court has dealt with the validity of Annexure P-12 on merits, nothing else is required to be seen. Consequently, Annexure P-12 and Annexure P-2 are hereby set aside. The petitioner be reinstated. However, in the event of misconduct, liberty is reserved to the respondents to proceed in accordance with rules. The petition is allowed to the extent indicated herein-above. No costs.