Durganath Singh vs State of Madhya Pradesh and Others

P.K. Jaiswal, J.

In this writ petition under Article 226/227 of the Constitution of India, the Petitioner is assailing the order dated 16-1-2004 passed by Respondent No. 2, order dated 18-4-2005 passed by the Prescribed Authority and order dated 26-12-2005 passed by Respondent No. 3. He also prayed for issuance of writ of mandamus directing the Respondents to continue his service as Panchayat Karmi, Gram Panchayat, Phool Harchandra Singh, Tehsil Hanumana, Distt. Rewa.

It is not in dispute that the Petitioner was appointed as Panchayat Karmi by the Gram Panchayat, Phool Harchandra Singh, in 1996. On 20-3-1996 he has been notified as Panchayat Secretary for performing the secretarial duties of Gram Panchayat by the Collector, Rewa u/s 69(1) of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (in short ''the Adhiniyam of 1993''). The services of the Petitioner has been terminated by Respondent No. 4 vide order dated 16-1-2004 in pursuance to the resolution dated 16-1-2004 passed by the Gram Panchayat. Against the said order the Petitioner preferred an appeal to the Prescribed Authority (Sub Divisional Officer, Rewa) which was dismissed vide order dated 18-4-2005. Against the dismissal of the appeal the Petitioner filed a revision under Rule 5 of M.P. Panchayat (Appeal and Revision) Rules, 1995 before Respondent No. 3. Learned Revisional Authority after appreciating the facts of the case came to the conclusion that the services of the Petitioner have been terminated after issuing show-cause notice to him and upheld the order of the Appellant authority.

The Petitioner''s case is that he was in service of Gram Panchayat since 1996 and his services have been terminated vide order dated 16-1-2004 without issuing any show-cause notice to him. It is submitted that principles of natural justice have also been violated and the services of the Petitioner have been terminated without any valid reason.

Learned Govt. Advocate as well as learned Counsel for Respondent Nos. 2 and 5 have stated that prior to passing of the resolution dated 16-1-2004, notice dated 22-12-2003 was issued against unauthorized absence of the Petitioner and his non-performance of the work of Gram Panchayat. It is submitted that by the said notice the Petitioner was directed to remain present and file reply within seven days. The Petitioner refused to accept the notice. Gram Panchayat after expiry of seven days, again issued another notice dated 1-1-2004 and on that date the Petitioner was absent. In absence of the Petitioner, meeting dated 1-1-2004 was adjourned for 8-1-2004. On 8-1-2004 the Petitioner was absent and failed to appear in the Gram Panchayat and, therefore, he was directed to remain present on 16-1-2004. On 16-1-2004 the Petitioner was remained absent, the Gram Panchayat had no other option except to pass a resolution terminating the services of the Petitioner. Accordingly, resolution was passed on 16-1-2004. The resolution was also brought to the notice of the Chief Executive Officer, Janpad Panchayat, Hanumana and prayed for alternative arrangement. The Chief Executive Officer, vide order dated 14-7-2004 had given the additional charge of Secretary of Gram Panchayat one Phool Singh, Gram Sahayak. He further submitted that these facts were considered by the Sub Divisional Officer as well as by learned Revisional Authority and the learned Sub Divisional Officer after requisitioned the original record of Gram Panchayat, considered these facts and passed a detailed order vide Annexure P-5. The Sub Divisional Officer in internal Page No. 4 of his order gave a finding that prior to passing of resolution dated 16-1-2004, three notices were issued to the Petitioner, but, in spite of three notices the Petitioner had failed to appear before the Gram Panchayat.

Learned Commissioner also considered this question in Paras 3.1 and 3.2 of its order dated 26-12-2005. On perusal of orders dated 18-4-2005 and 26-12-2005 it cannot be said that the principles of natural justice have not been followed or services of the Petitioner have been terminated without following the due process of law. Thus, the said contention of the Petitioner cannot be accepted nor all these question can be examined in this petition.

The next contention of learned Counsel for the Petitioner was that the State Govt. has framed rules known as "M.P. Panchayat Services (Discipline and Appeal) Rules, 1999". These rules superseded the provisions of the Panchayat Karmi Scheme dated 12-1-1995. Panchayat Karmis are the Panchayat Servant and as per Rule 2 (j) they are also included in Panchayat Service, they enjoy protection of Rules of 1999. Rule 7 of the Rules of 1999 provides procedure for imposing major penalty and this procedure was not followed in this case. No charge was framed nor any witness was examined nor any opportunity was given to the Petitioner to cross-examine the witnesses. There is no enquiry report. These are the essential requisite of the procedure of enquiry contained in Rule 7 of 1999 Rules and, therefore, the order terminating the service of the Petitioner is illegal. In support of the said contention, a decision of this Court in the case of Kunjan Singh Vs. State of M.P. and Others, , has been cited by the Petitioner.

On the other hand, learned Govt. Advocate drew my attention to the Single Bench decision of this Court in the case of Mool Chanel Soni v. State of M.P. and Ors. 2007 (2) M.P.H.T. 133 : 2007 (1) MPLJ 343, wherein it has been held that M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 are not applicable to Panchayat Secretary. In the case of Mool Chand Soni (supra), the order under challenge was of denotification of the Petitioner from the post of Panchayat Secretary passed u/s 69 of the Adhiniyam of 1993 and, therefore, it has been held that these rules are framed in regard to other officers and servants of the Panchayat as per Section 70 of the Adhiniyam of 1993 and the provisions contained in the Rules of 1999 will not be applicable to the Panchayat Secretary.

In Lalla Prasad Burman Vs. State of M.P. and Others, a Division Bench of this Court was considering the question in respect of denotifying Panchayat Karmi as Panchayat Secretary u/s 69 and held that it constitutes a major penalty under Rule 5-B of M.P. Panchayat Services (Discipline and Appeal) Rules, 1999 and an enquiry must be held under Rule 7 of the Rules. The order of major penalty cannot be passed unless an inquiry is held. The Secretary of Gram Panchayat cannot be removed or reverted without following procedure.

In the present case, vide resolution dated 16-1-2004 the services of the Petitioner have been dispensed with without holding any enquiry against him. Prior to passing of the said resolution, a show-cause notice was issued to the Petitioner on 21-12-2003, 1-1-2004 and 8-1-2004. In spite of the said notice, no reply was filed by the Petitioner, and, therefore, due to his unauthorised absence, in the interest of justice, Gram Panchayat removed the Petitioner from the post of Panchayat Karmi. The Petitioner was a Panchayat Karmi and his Appointing Authority was Gram Panchayat. In the case of Gram Panchayat, the Gram Panchayat was competent to take action against the Petitioner but in case it wants to take any disciplinary action against the Petitioner, the same shall be taken under the provisions of M.P. Panchayat Services (Discipline and Appeal) Rules, 1999 and an enquiry must be held under Rule 7 of the Rules. The order of major penalty cannot be passed unless an enquiry is held. The services of the Panchayat Karmi cannot be dispensed with without following the procedure as laid down in the 1999 Rules. This Court in the case of Kunjan Singh (supra), held that the services of the Panchayat Karmi cannot be terminated without following the provisions of Rule 7 of the Rules of 1999. It has been held that the Panchayat Karmis are also included in Panchayat Service and they are Panchayat Servant within the meaning of Rule 2 (f) of Rules of 1999. They enjoy the protection of Rules of 1999. This question was again considered by this Court in the case of Kailash Babu Rai v. State of M.P. and Ors. 2008 (3) MPIJ 648, wherein it has been held that the Panchayat Karmis who have been notified as Panchayat Secretary falls within the ambit of members of Panchayat Service or Panchayat Servant is defined in Clause (f) of Section 2 of Rules of 1999 and, therefore, removal from service falls in sub-clause (6) of Clause (b) of Rule 5, which is a major penalty. The procedure for imposing major penalty is provided in Rule 7. This procedure was not followed in the case of the Petitioner, inasmuch as the charge-sheet required under Sub-section (2) of Section 7 is not issued at all. Thus, the impugned order being contravention of these rules are also not otherwise sustainable in law.

In the result, this writ petition is hereby allowed. Impugned orders dated 16-1-2004, order dated 18-4-2005 and order dated 26-12-2005 are hereby quashed. Respondents are directed to reinstate the Petitioner in service and pay his full back wages. No order as to costs.