Hem Ram Patel vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—The present petition, filed under Article 226 of the constitution of India impugns the order dated 2.9.2002 (Annexure P/2), passed by the Collector, Raipur and the order dated 3.9.2007 (Annexure P/1), passed by the Director, Panchayat, Chhattisgarh, whereby the appeal preferred by the petitioner against the order of removal from service, has been dismissed. Brief facts, in nutshell, are that by order dated 1.11.1995 (Annexure P/3) the petitioner was appointed as Panchayat Karmi in village Panchayat -Konari, Tahsil-Palari, District-Raipur. Thereafter, by order dated 15.6.1999 the petitioner was declared as Secretary. On a complaint made by the then Sarpanch Smt. Ganga Bai Baghel against the petitioner in regard to misbehavior and assault in the meeting of the village Panchayat, a criminal case was registered against the petitioner for the offence under Sections 354, 290, 323 of the Indian Penal Code and under Sections 3(1) (x) and 3(1)(xi) of the Scheduled Caste and scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short "the Act, 1989") in the Police Station, Balod Bazar. As a result of the registration of the criminal case against the petitioner, by impugned order dated 2.9.2002 (Annexure P/2), passed by the Collector, Raipur, the earlier order dated 15.6.1999, whereby the petitioner was declared Secretary, was cancelled with immediate effect.

Being aggrieved by the order dated 2.9.2002 (Annexure P/2) the petitioner had preferred an appeal (Case No. 248/B-121/2001-2002) before the commissioner, Raipur Division on 19.92002. After abolition of the office of the Commissioner, the matter was transferred to the Director, Panchayat, Chhattisgarh, wherein the matter was registered as Appeal Case No. 494/B -121/03-04.

It is evident that the criminal case, being Special Sessions Trial No. 226/2002 (State of Chhattisgarh Vs. Hemram Patel) was tried against the petitioner, which resulted into acquittal of the petitioner from the charges for commission of offence under Sections 354, 290, 323 of the Indian Penal code and under Sections 3 (1) (x) and 3 (1) (xi) of the Act, 1989, vide judgment and order dated 7.12.2004 (Annexure - P/22) passed by the Special judge (Atrocities), Raipur and thereafter no appeal was preferred there against and, as such, the same attained finality.

The Director Panchayat by the impugned order dated 3.9.2007 (Annexure P/1), dismissed the appeal, holding that looking to the allegation of criminal act against the petitioner, it would not be justifiable in law to reinstate the petitioner on the post of Secretary and accordingly, directed for initiation of procedure for appointment of a new Secretary in the Village Panchayat Konari. Thus, the petitioner has filed this petition.

Learned counsel appearing for the petitioner would submit that the petitioner was removed from the post of Secretary by the impugned order dated 2.9.2002 (Annexure P/2) only for the reason that the criminal case was registered against him on the complaint made by the then Sarpanch. The original post of the petitioner is Panchayat Karmi on which he was appointed by order dated 1.11.1995 (Annexure P/3) The mandatory, statutory provisions of Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short "the Rules, 1999") were not followed before removing the petitioner from the post of Secretary/Panchayat Karmi, as such the impugned order of removal was illegal and bad on the ground that the petitioner was not afforded any opportunity of hearing.

On the other hand learned counsel appearing for the respondents/ State supports the impugned orders.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

The Hon''ble Supreme Court in State of M.P. and Others Vs. Hazarilal, wherein a peon was convicted u/s 323 read with 34 of the I.P.C. by the Magistrate and on appeal his sentence was reduced to a fine of Rs. 500/-, it was held that removal of the respondent/employee was wholly unreasonable. The respondent/employee had not committed any misconduct within the meaning of the provisions of the Service rules. He was involved in a matter for causing simple injury to another person. He was not even sent to prison. Only a sum of Rs. 500/- was imposed upon him as fine. Accordingly, the appeal of the employer/State of Madhya Pradesh was dismissed with cost of Rs. 25,000/- and the respondent/employee was directed to be reinstated in service.

In the present case, the petitioner was acquitted of the charges and no departmental enquiry was initiated against him, as provided under Rule 7 of the Rules, 1999.

The Rules, 1999 were framed in exercise of the powers conferred by sub-section (1) of the Section 95 read with sub-section (2) of Section 70 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 governing the service conditions of members of Panchayat Karmi/Panchayat Secretary is a member of Panchayat service.

Rule 5 of the rules, 1999 provides for imposition of penalties,. Rule 7 prescribes the procedure for imposing major penalties, as specified in Rule 5 (b) of the Rules, 1999. Rule 8 deals with the procedure for imposing minor penalties.

Rule 10, which is a non-obstante clause, provides for certain exceptions dispensing with compliance of the requirement in Rules 7, 8 and 9 in a case wherein the penalty has been imposed on a Panchayat servant on the ground of conduct which has led to his conviction on a criminal charge; or for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules.

Rule 10 of the Rules, 1999 reads as under:

10 Special procedure in certain cases.-(1) Notwithstanding anything contained in rule 7, 8 and 9.-

(i) Where a penalty is imposed on a Panchayat Servant on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the Disciplinary Authority is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules,

The Disciplinary Authority may consider the circumstances of the case of pass such orders thereon a it deems fir.

Bare perusal of the above stated provisions of law, it is apparent that no procedure as specified in Rule 7 of the Rules, 1999 can be dispensed with in case of major penalties i.e. removal from service. There is no dispute that the petitioner was acquitted in the criminal trial from the alleged offence under Sections 354, 290, 323 of the Indian Penal Code and under Sections 3(1) (x) and 3(1) (xi) of the Act, 1989. Therefore, it was necessary to take recourse to the procedure specified in Rule 7 of the Rules, 1999 before passing the order of removal, but nothing has been done in this case. The Appellate Authority has completely ignored the legal provisions before upholding the order of removal as proper order.

Non- obstante clause as provided under Rule 10 has over riding effect on other parts of the provision, but in the case on hand non-obstante clause could not have been invoked, as the petitioner was firstly; not convicted in a criminal charge; and secondly; no reasons were recorded were dispense with compliance of the procedure prescribed in rule 7 of the Rules, 1999.

It is evident that the impugned removal order was passed without following the statutory and mandatory procedure of law, as prescribed under Rule 7 of the Rules, 1999. The procedure for holding an enquiry is enshrined in Rule 7 of the Rules, 1999 for imposition of major penalty. Hence, after acquittal of the petitioner in Criminal case, the petitioner could not be removed from the post of Secretary/panchayat Karmi without following statutory provisions of law and, as such, the removal is bad and vitiated. It amounts to infraction of not only the provisions of Rules, 1999 but also the provisions of Article 311(2) of the Constitution of India. The order was in fact penal in nature, having civil consequences and as such compliance of the elaborate provisions, as enshrined in Rule 7 of the Rules 1999 was mandatory in the present case, (See Dhaluram Kosaria Vs. State of C.G. and Others, which was referred approvingly in Anjordas v. State of Chhattisgarh & others, 2008 (III) MPJR-CG110.

For the reasons mentioned herein above, the impugned order dated 2-9-2002(Annexure-P/2) and the impugned order dated 3-9-2007(Annexure-P/1) are quashed.

On the question of back wages, no foundation has been laid to established the fact that whether the petitioner was gainfully employed elsewhere or not during this period. However, having regard to the fact that the petitioner was removed from the post of Panchayat Secretary on 2-9-2002 without following statutory provisions of law, 30% back wages would be sufficient in the interest of justice.

In the result, the writ petition is allowed to the extent indicated above. There shall be no order as to costs.