Ramesh Lal vs Punjab State and Another

Jawahar Lal Gupta, J.—The plaintiff-appellant''s suit for declaration that the order dated February 1, 1979 termination his services was wrong, illegal and not binding on him having been dismissed by the two Courts below, he has come up in this second appeal to this Court. A few facts may be noticed.

The plaintiff-appellant was appointed as a Panchayat Secretary in the pay scale of Rs. 110-180 vide order dated May 4, 1977. He was required to produce a certificate of fitness from the Civil Surgeon. The appointment was also subject to his character etc. being verified by the police. The necessary medical certificate and the police verification having been received the Panchayat Samiti passed a resolution in its meeting held on June 27, 1977 ratifying the appellant''s appointment. While he was working as such, he was not paid the salary for the period from March 1, 1978 to September 30, 1978. On December 27, 1978, he filed a suit for the recovery of the arrears of salary. While this suit was pending, the Director, Rural Development and Panchayats sent a letter to the Executive Officer of the Panchayat Samiti in which it was inter alia observed that vide letters dated March 25,1977 and May 3,1978, it had been clarified that the vacant posts of Panchayat Secretaries created under the Half a Million Job Scheme, shall not be filled up till the finalisation of the suit. In spite of this, Ramesh Lal had been appointed as a Panchayat Secretary vide order dated May 4, 1977. The Executive Officer was called upon to explain as to why instructions were not carried out. A copy of this letter has been produced on record as Ex. D-3. On receipt of this letter, the Executive Officer addressed a communication dated January 22, 1979 informing the plaintiff-appellant of the observations of the Director and calling upon him to show cause as to why his services be not terminated. The appellant had to submit his reply by January 1, 1977. On this letter, Buta Ram, Peon made an endorsement that the appellant had refused to accept the letter. This endorsement does not bear any date. Copy of the order as also the endorsement thereon is on record as Ex.D-4. Thereafter, vide order dated February 1, 1979 (Ex.P4) the services of the plaintiff-appellant were terminated. This order was challenged by the appellant as being totally illegal, violative of the principles of natural justice and the provisions of the Rules govering his services. The suit was contested by the defendant-respondents. On the pleadings of the parties, the following issues were framed:-

Whether the suit is within time? OPD.

Whether the plaintiff is estopped by his acts and conduct from, filing the suit? OPD.

Whether the suit is bad for non-joinder of necessary parties? OPD.

4.Whether the plaintiff was not employed by a competent authority? OPD.

Whether the order No. 260 dated 1.2.1979 passed by defendant No. 3 is illegal and without jurisdiction ? OPD.

Relief.

Learned trial Court held that the suit was within limitation and that necessary parties had been impleaded. So far as Issue Nos. 2, 4 and 5 are concerned, these were decided together and it was held that the appointment had been "obtained against the rules and instructions of the Government. The plaintiff was not on the list of approved candidates. He had not submitted his application in time. As such, the plaintiff shall be barred by his own act and conduct from filing the suit and order relieving him cannot be said to be illegal or without jurisdiction." The appellate authority also held that "his recruitment on 4.5.77 was obviously made without there having been any basis or jurisdiction therefore, and thus in turn has to have the effect of its being said, that he could not, therefore, claim the protection of either the Punjab Civil Services Rules or of any other law or statute and consequently no fault whatsoever can be found with his having been relieved through the impugned order without giving him any chance to show cause or to explain his position, and it has rightly been so held by the Court below also."

I have heard Mr. R.S. Mittal, learned counsel for the appellant and Mr. Suresh Ambha, learned counsel for the respondents.

The primary issue that is relevant for the decision of the case is Issue No. 4 viz. whether the plaintiff was not employed by a competent authority?

Appointment to the posts of Panchayat Secretaries were originally governed by the provisions of the Rules called the Punjab Panchyat Samiti and Zila Parishad Rules, 1965. Rule 3 of these Rules inter alia provides that the service shall consist of the posts specified in the Appendix. The post of Panchayat Secretary is mentioned at Sr. No. 27. Clause (ii) of Rule 4 provides as under :-

"(A) All appointment to the Service shall be made - x x x x x

(ii) in the case of employees of a Panchayat Samiti, and also in the case of Secretary of a Gram Panchayat, by the Panchayat Samiti concerned.

A perusal of the Sub-clause (ii) as reproduced above shows that the appointing authority for appointment to the post of Secretary of a Gram Panchayat is the a Panchayat Samiti. A perusal of the sequence of events as noticed above shows that the petitioner''s appointment was unanimously approved by the Panchayat Samiti in its meeting held on June 27, 1977. Consequently, it is clear that the appellant had been appointed by the competent authority.

Mr. Suresh Ambha, learned counsel for the respondents, however, contends that this appointment was totally illegal as the power of appointment vested exclusively in the Director and further because the directions given by the Director, Panchayats vide letters dated March 25, 1977 and May 3, 1978 had not been complied with. He relies on the provisions of the Punjab Panchayat Secretaries (Recruitment and Conditions of Service) Rules 1979 in support of the above contention. On the basis of Rule 3 of 1979 Rules, it is contended that the Director, Department of Rural Development and Panchayats was the only competent authority for appointment to the post of Panchayat Secretary.

I am unable to accept this contention of the learned counsel for the respondents. Admittedly, the appellant was appointed on May 4, 1977. This appointment was ratified by the Panchayat Samiti on June 27, 1977. At that time, 1965 Rules were in force. 1979 Rules had not even been promulgated till then. In fact, in Rule 1(2) of the 1979 Rules, it has been specifically provided that "they shall come into force on the date of their publication in the official gazette." Consequently, 1979 Rules were not in force at the time of the appointment of the appellant. That being the position, the appoint had to be made by the authority named under the 1965 Rules. It was actually so made. As such, the view taken by both the Courts below that the appointment of the appellant had not been made by the competent authority or that it was illegal, cannot be sustained.

As for the contention that the appointment had been made by the Panchayat Samiti in violation of the directions of the Director, it may only be mentioned that if the Samiti violaties any direction given by any superior authority, it is open to the authority to take such action against the Samiti as may be permissible under the law. However, the order passed by the Samiti for appointment of the appellant could not be said to be illegal. Even otherwise, if the Samiti felt that the post of Panchayat Secretary should be filled-up and the Director thought that the appointment should await the promulgation of the Rules, the appellant cannot be blamed in any manner whatsoever. It was for the Samiti to either make the appointment or to wait. It chose to make the appointment. The plaintiff-appellant cannot be accused of any impropriety or his appointment cannot be said to have been tainted with any illegality. The appointment having been made by the competent authority, the finding on Issue No. 4 should have been given in favour of the appellant.

It deserves notice that vide letter dated January 20, 1979, the Director, Panchayats had sought the explanation of the Executive Officer of the Panchayat Samiti. He instead of giving his explanation proceeded to issue a show cause notice dated January 22, 1979 to the appellant. This notice is alleged to have been sent to the appellant through the office Peon. The Peon made a report to the effect that the appellant had refused to accept the notice. This report curiously bears no date. Therefore, on February 1, 1979, the impugned order was passed. The Courts below have erred in taking the view that no opportunity was required to be given to the appellant. If it was the case of the respondents that the appointment was not made by the competent authority or that the Panchayat Samiti had violated certain instructions issued by the competent authority, it was incumbent on the respondents to give opportunity to the appellant to explain his position.

The sequence of events casts doubt regarding the authenticity of the report made by Babu Ram with regard to the appellant''s refusal to accept the notice. The appellant was sending in the office. It was nobody''s case that he was the only employee in the office. If it was the case of the respondents that he had actually refused to accept the notice, there would have been some independent evidence besides that of the Peon working in the office of the Panchayat Samiti. I have been taken through the statement of Babu Ram who had appeared as Ex. DW-2. It appears that on receipt of the notice from the Director, the executive officer wanted to get rid of the appellant so as to justify his own position. Accordingly, he issued the issue cause notice on January 22, 1979 and passed the impugned order soon thereafter on February 1, 1979 (Ex.D2). In this order, reference has been made to the notice dated January 22, 1979. However, it has nowhere been mentioned that the appellant had refused to accept the notice. In this situation, the possibility of the endorsement regarding the refusal having been obtained at a later date, cannot be completely ruled out. However, since I have come to the positive conclusion that the appellant had been appointed by the competent authority, it is not necessary for me to go into this matter any further. Still further, the order actually communicated to the appellant has been produced as (Ex.P-4). Further more, the order of termination actually conveyed to the appellant has been produced as (Ex.D4). It does not even refer to the issue of a show cause notice. Taking the totality of the circumstances into consideration, the whole thing does not appear to have been done in a very straight forward manner.

The appellant had been appointed by the competent authority. It was not claimed that his appointment was not in accordance with the Rules. No issue was framed to the effect that the appellant''s appointment was illegal or that the requisite procedure had not been followed. This being the situation, the judgment and decree passed by the Courts below are set aside. It is held that the appellant had been appointed by the competent authority. I am further of the view that since the appellant had been appointed by the competent authority, his services were sought to be terminated only on the ground as mentioned in para 3 of the written statement that "his appointment having been made against the policy has not been approved of by the Director and as such, was relieved form the duties of Panchayat Secretary. "No approval of the Director was required. The very reason for termination was non- existent and untenable in law.

In view of the above, the appeal is allowed. The judgment and decree passed by the Courts below are set aside. The suit of the plaintiff-appellant is decreed. It is declared that the order dated February 1, 1979 Ex. P-4 is illegal and not binding on the appellant. However, it is clarified that the appellant shall not be entitled to full arrears of salary. He will only be paid 25 percent. This is so because it will be grossly unfair to award full wages for a period of 14 years while the appellant had actually served the employer only for a period of two years. Further more, it is difficult to believe that a person can survive without doing any work for 14 years. In the circumstances of the case, there will be no order as to costs.