Rajkumar Kurre vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 18-5-2005 (Annexure-A/8) whereby the order dated 29-11-2004 (Annexure-A15) passed by the Director, Panchayat, removing the petitioner from the post of Panchayat Secretary was confirmed and order dated 13-2-2005 (Annexure-A17) whereunder on the basis of resolution of Gram Panchayat Markadih, Janpad Panchayat, Nawagarh, District Janjgir, services of the petitioner from the post of Panchayat Karmi was terminated. The facts, in brief, as projected by the petitioner are that a complaint was made on 26-6-2004 against the Sarpanch and the petitioner, the then Panchayat Karmi (Secretary), making various allegations, upon which, the Chief Executive Officer, Janpad Panchayat, Janjgir conducted an enquiry and submitted his report on 9-7-2005 (Annexure P/1). Again an enquiry was made by the Naib Tahsildar who submitted his report on 29-9-2004. On the basis of the said enquiry report, the Deputy Director, Panchayat & Social Welfare issued a show cause notice on 5-11-2004 (Annexure A/3) as to why his services may not be terminated. The petitioner replied to the said show cause notice on 22-11-2004 (Annexure A14). Thereafter, the Deputy Director passed the final order canceling the notification of appointment of the petitioner as Panchayat Secretary and thereby removing him from service by order dated 29-11-2004 (Annexure A/5). Being aggrieved, the petitioner preferred an appeal before the Director, Panchayat. The Director, Panchayat, granted an order of stay on 21-12-2004 (Annexure A/6). However, the order of stay was vacated later on. In the meantime, the Gram Panchayat passed a resolution and without affording an opportunity of hearing to the petitioner, removed the petitioner from the post of Panchayat Karmi also by order dated 13-2-2005 (Annexure A/7), which is sought to be impugned by amendment of the petition, as ordered on 8-8-2010. The appeal of the petitioner was also dismissed on 18-3-2005.

Shri Mishra, learned counsel appearing for the petitioner submits that the order of removal was passed relying upon the report submitted by the Naib Tahsildar, without application of mind, as neither the statements of the beneficiaries were recorded nor their signatures were verified. Further, on the same allegations, which were leveled against the Sarpanch, only an order of recovery was made whereas, the petitioner has been terminated from service.

Per contra, Shri Bhaduri, learned Panel Lawyer appearing for the State/respondent No. 1, 2, 3 and 5 would submit that on receipt of the complaint, an enquiry was conducted by the respondent No. 4 which found that the petitioner did not provide mid day meals to the school children and the respondent No. 5 also, in his enquiry report, found him guilty of the charges. The petitioner was afforded proper opportunity of hearing by the Deputy Director, Panchayat by issuing show cause notice to which the petitioner filed his reply also. After considering the same, the impugned action was taken.

Shri Agrawal, learned counsel appearing for the respondent No. 4 and Shri Pandey, learned counsel appearing for the respondent No. 6, 7 and 8, would support the contention of learned counsel for the State/respondent No. 1, 2, 3 and 5. Shri Pandey would further submit that the appointment of the respondent No. 8 cannot be challenged by way of amendment after lapse of about 3 years from the date of appointment. Thus, this petition may be dismissed.

Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

It appears that a spot inspection was done on 29-5-2004 in presence of persons (Annexure R/1). Thereafter, a show cause notice was issued on 5-11-2004 (Annexure A/3) to submit his response within a period of 7 days. The Gram Panchayat, on 13-2-2005 (Annexure A/7) resolved to remove the petitioner from the post of Panchayat Karmi (Secretary) w.e.f. 13-2-2005 and thereafter, the impugned order was passed on 13-2-2005 (Annexure A/7). It is not the case of the respondents that an enquiry as contemplated under Rule 7 of the Chhattisgarh Panchayat (Discipline & Appeal) Rules, 1999 (for short, ''the Rules, 1999'') was conducted before the impugned order was passed.

A show cause notice in respect of removal from the post of Panchayat Karmi (Secretary) was issued on 5-11-2004 by the Deputy Director, Panchayat and reply to the said show cause notice was submitted on 22-11-2004 and thereafter, the impugned order was passed on 29-11-2004 (Annexure A/5). The authorities below have gone on the facts that since a show cause notice was issued to the petitioner who admitted his guilty, thus, it was not necessary to hold further enquiry as contemplated under Rule 7 of the Rules, 1999. The orders passed by the respondent authorities are faulted as the procedure prescribed in Rule 7 of the Rules, 1995, being mandatory, have not been followed.

It is evident that the impugned termination order was passed without following the proper procedure of law, as prescribed under Rule 7 of the Rules, 1999. The procedure for holding an enquiry is prescribed under Rule 7 of the Rules, 1999 for imposition of a major penalty. Hence, the termination is bad and vitiated on the ground of non-compliance of the statutory provisions and denial of the principles of natural justice. It amounts to infraction of not only the provisions of Rule 7 of the Rules, 1999 but also the provisions of Article 311(2) of the Constitution of India. The impugned order is 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, and Anjordas Vs. State of Chhattisgarh and Others,

A Division Bench of this Court, in Rooplal Nayak v. The State of Chhattisgarh and others W.P. No. 1656/2004, decided on 25-7-2006, in a similar facts and circumstances, quashed the order of the Collector, Rajnandgaon, whereby the petitioner, working as Panchayat Secretary, was removed from the post of Panchayat Secretary holding that such penalty cannot be imposed on a member of Panchayat Service without conducting a regular departmental enquiry as envisaged under Rule 7 of the Rules, 1999.

The Privy Council, in AIR 1936 253 (Privy Council) ), observed as under:

The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

The Supreme Court, in Hukam Chand Shyam Lal Vs. Union of India (UOI) and Others, observed as under:

It is well-settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice.

A Constitution Bench of the Supreme Court, in Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and Others, , held as under:

27...It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself....

In Captain Sube Singh and Others Vs. Lt. Governor of Delhi and Others, , the Supreme Court observed as under:

In Anjum M.H. Ghaswala a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka.) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification u/s 67(1)(d) read with sub-clause (i) thereof.

In J and K Housing Board and Another Vs. Kunwar Sanjay Krishan Kaul and Others, , the Supreme Court reiterated the settled position, as aforestated and observed as under:

It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/modes have to be strictly complied with in the manner provided therein.

A Constitution Bench of the Supreme Court, in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, laid down the principle of natural justice succinctly as under:

202...It is now well, settled that the ''audi alteram partem'' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination...

The same has been explained further by the Supreme Court in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, , Union of India and Another Vs. Tulsiram Patel and Others, , D.K. Yadav Vs. J.M.A. Industries Ltd., , Jaswant Singh Mathurasingh and another Vs. Ahmedabad Municipal Corporation and others, , Sahara India (Firm), Lucknow Vs. Commissioner of Income Tax, Central-I and Another, 1, Dev Dutt Vs. Union of India (UOI) and Others, , The Joint Action Committee of Airlines Pilots Associations of India and Others Vs. The Director General of Civil Aviation and Others,

Applying the well settled principles of law to the facts of the case on hand, wherein the petitioner was removed from the post of Panchayat Secretary without following the statutory procedure as prescribed under Rule 7 of the Rules, 1999, the impugned orders dated 13-5-2005 (Annexure A/7), 29-11-2004 (Annexure A/5), confirmed by the order dated 18-2-2005 (Annexure A/8) are quashed. As a sequel, the respondents are directed to reinstate the petitioner in service. However, it is made clear that the petitioner is not entitled to back wages in view of the serious allegations made against him and the same was also admitted by the petitioner. It is open to the respondent authorities to take appropriate steps in accordance with law, if so advised. Accordingly, the writ petition is allowed to the extent indicated above. No order as to costs.