Panpapathi vs The Appellate Authority and The Chief Executive Officer, Zilla Panchayath, Bellary and Others

B.S. Patil, J.—Though this matter is listed for preliminary hearing, with the consent of learned counsel for both parties, the matter is taken up for final hearing.

Writ petition filed by the appellant challenging his termination from service as affirmed by the appellate authority has been dismissed. Aggrieved by the said order passed by the learned Single Judge, the appellant has filed this intra-court appeal.

Facts necessary for the disposal of this appeal, stated in brief, are that petitioner was appointed as a Bill Collector of Kurugodu Gram Panchayat on 29.04.1991; that certain allegations were made against him regarding non-submission of accounts of the amount of tax recovered and omission to deposit the said amount to the treasury and non-recording the various projects undertaken apart from other illegal activities. It appears he was placed under suspension in the year 1997 and subsequently upon an apology given by him in the form of undertaking that he will not repeat such mistakes, the order of suspension was revoked. Thereafter, on 24.06.2011, the Panchayat Development Officer, Gram Panchayat, Kurugodu, issued a notice to the appellant stating that he was not discharging his duties as Bill Collector and was not remitting the amount collected to the Bank properly and was misusing the same. It was also alleged that the previous Secretary had stated that for the year 2010-2011 all account books were in the custody of the appellant; though the appellant was called upon to return those books, he had failed to comply with the same. That, he was trying to mislead the members of the Gram Panchayat and the Panchayat Development Officer by not furnishing the details of the work done under the Mahatma Gandhi National Rural Employment Guarantee Act (for short ''MNREGA''). It was also alleged that he was instigating the people to use filthy language against the officials and those indulging in illegal activities. He was called upon to return the work register pertaining to MNREGA and submit all information failing which further action would be taken. The appellant did not furnish any reply to this notice. Therefore, a resolution was passed on 27.08.2011 by the Gram Panchayat whereunder in terms of the direction issued by the Deputy Commissioner, it was resolved that appellant had to be dismissed from his service and hence it was resolved to dismiss him. The resolution is produced at Annexure-C. Based on this resolution dated 27.08.2011, intimation was given to the writ petitioner on 03.10.2011 intimating him that he has been dismissed from his services. This intimation is produced as Annexure-D to the writ petition.

A perusal of the resolution passed by the Gram Panchayat would reveal that the Executive Officer of the Taluka Panchayat, Bellary, had written to the Gram Panchayat asking the panchayat to file a complaint against the Bill Collector before the Police and to remove him from his post and therefore a meeting was convened to take action in the matter. In that meeting, it was noticed that the Bill Collector had not furnished the details of the various projects undertaken and not submitted any reply and the matter had gone to the notice of the Deputy Commissioner and the Deputy Commissioner had personally visited and examined the various irregularities committed by him and therefore in the light of the serious allegations made against him, the Gram Panchayat, had unanimously decided to dismiss him from service.

Aggrieved by the resolution passed and the communication issued to him by the Panchayat Development Officer, appellant preferred an appeal before the Chief Executive Officer, Zilla Panchayat, Bellary. By Annexure-F order dated 13.08.2012, the Chief Executive Officer dismissed the appeal recording a finding that it was not in the interest of the development of the Panchayat to continue such an employee in service and that the action taken by the Panchayat in that regard was not illegal.

The main grievance of the petitioner in the writ petition was that without holding any enquiry and without providing a fair and reasonable opportunity of being heard, extreme penalty of dismissal from service was ordered by the Panchayat which was in violation of the principles of natural justice. The learned Single Judge has dismissed the writ petition holding that the delinquent employee had failed to submit any reply and that in view of the judgment in the case of H.RAJAPPA VS. HARONAHALLI GRAM PANCHAYAT (2005 (1) KLJ 373), there was no need to hold a detailed enquiry, inasmuch as, issue of show cause notice calling for reply was sufficient for the purpose of punishing an employee.

We have carefully examined the provisions contained under Section 113 of the Karnataka Panchayatraj Act, 1993 and the judgment rendered in H. Rajappa''s case cited supra. In the said case, the principal question raised was regarding the maintainability of the writ petition bypassing the alternative remedy of statutory appeal provided to the Bill Collector to challenge the order of punishment imposed, before the Chief Executive Officer while holding that without exhausting the alternative remedy, the delinquent employee could not have approached the High Court directly invoking the writ jurisdiction. In the background of the said facts, the learned Single Judge of this Court has found that the delinquent employee was indeed issued with a show cause notice providing an opportunity to submit his reply and that after consideration of the reply, action had been taken and therefore it was not a case of total denial of opportunity of being heard so that the delinquent could directly invoke the writ jurisdiction without resorting to the alternative remedy. The said judgment does not lay down any proposition of law that an employee of Gram Panchayat can be dismissed from service by merely receiving his explanation for the allegations made against him.

Rules of natural justice mandatorily provide for a fair and reasonable opportunity to be given to the delinquent. There may be different facets of principles of natural justice to be adhered to in different circumstances. But, the fact remains that in a case where serious allegation of misappropriation are made and several illegalities are alleged, the delinquent must be informed of all those charges. He must be provided with an opportunity to answer the charges unless the employee admits the charges. An enquiry needs to be held into the charges to find out the guilt. The employee should have an opportunity of denying the allegations made against him.

In the facts of the present case, the notice issued as per Annexure-R5, the resolution passed as per Annexure-C and the communication issued as per Annexure-D when perused together would show that the employee is punished not only for the allegations made for the first time in the notice but also for several other allegations which have been taken up for consideration and discussed by the members of the Panchayat in the course of the meeting held culminating in the resolution passed to remove him from service. Thus, this is not a case where even a show cause notice was issued clearly mentioning the allegations and imputing the charges against the delinquent. Unless, such allegations are made in the show cause notice, opportunity provided to him to submit his reply is of no consequence. Hence, the order passed dismissing him from service cannot be termed as one passed by following the principles of natural justice and by affording a fair and reasonable opportunity to defend himself. The appellate authority has also not examined this aspect of the matter. Hence, both the action initiated by the original authority and the order passed by the appellate authority are vitiated.

Accordingly, this appeal is allowed. The order passed by the learned Single Judge as also the orders passed by the original authority and the appellate authority are set aside.

Having regard to the nature of the allegations made against the appellant/Bill Collector and keeping in mind the fact that we are remitting the matter for fresh enquiry by providing an opportunity of hearing to the delinquent, we do not propose to order for reinstatement of the employee into service. He has to be treated as placed under suspension, till the enquiry is completed. He shall be paid the subsistence allowance with effect from today i.e., 31.03.2015. The enquiry shall be completed within a period of six months from the date of receipt of a copy of this order. Question of payment of backwages and other benefits will depend upon the result of the enquiry and the orders to be passed by the disciplinary authority. The appellant is directed to co-operate in the expeditious completion of the enquiry.