Madhya Pradesh High Court
Sheikh Kareem Khan vs The State Of Madhya Pradesh on 6 September, 2010
Writ Petition No.17013/2007
6.9.2010
Shri Ajay Sen, learned counsel for the petitioner.
Smt. Jailakshmi Aiyer, learnd counsel for respondent
Nos. 1, 2 and 3.
Shri Paritosh Trivedi, learned counsel for respondent No. 4.
Though the matter was posted for consideration of I.A. No. 8312/2010 an application for urgent hearing; however, keeping in view the issue involved in the matter and with the consent of learned counsel for the parties, the petition is heard finally.
The petitioner while he was working as Panchayat Karmi (Secretary) Gram Panchayat Raja Kachhar, tahsil Gotegaon district Narsinghpur was removed from the said post w.e.f. 22.9.2004 vide order passed by Sarpanch, Gram Panchayat, Raja Kachhar (Annexure P-3). The said order of removal was on the basis of the resolution passed by Gram Panchayat on 14.9.2004. An appeal preferred by the petitioner against the said order before Sub Divisional Officer /Prescribed Authority Gotegaon was dismissed vide order dated 8.2.2006; whereagainst in an appeal preferred before Collector, these orders dated 8.2.2006, 22.9.2004 and the resolution dated 14.9.2004 were set aside. Against the said order, Surpanch Gram Panchayat Rajakachhar preferred a revision before the Additional Commissioner, Jabalpur division, Jabalpur; who vide his order dated 1.12.2007 set aside the order dated 4.10.2006 passed by Additional Collector, Narsinghpur. It is against these orders that the petitioner has preferred this petition.
2The sole ground on which the petitioner seeks quashment of the order of removal is that the same has been passed without affording any opportunity of hearing.
In the reply filed by respondents, it is not disputed that no regular D.E. was held before the services of the petitioner as Panchayat Karmi (Secretary) were dispensed with.
In view whereof, the issue, as to whether a Panchayat Secretary could be removed from the post without holding any inquiry into the charges on the basis whereof the removal is effected is no more res integra and has been settled at rest by judgment rendered by Division Bench of this Court in Lalla Prasad V. State of M.P: 2008 (3) MPLJ 394 wherein their Lordships were pleased to observe:
5. After hearing learned Counsel for the parties, we find that the Collector, Shahdol has lost sight of the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'the Rules, 1999') while passing the order dated 29-6-2007 denotifying the appellant as Panchayat Secretary under Section 69 (1) of the Act. Sub-rule (3) of Rule 1 of the Rules, 1999 states that except otherwise provided by or under these rules, they apply to all persons employed in connection with the affairs of inter alia the Gram Panchayat and discharging the functions of Gram Panchayat. Secretary of Gram Panchayat is employed in connection with the affairs of Gram Panchayat and discharging the functions of Gram Panchayat.
Hence, the Rules, 1999 are applicable to him. It is not disputed that the appellant was notified as Panchayat Secretary as far back as on 12-10-1999 and is working as such Panchayat Secretary for about eight years. Hence any action against the appellant for 3 misconduct could only be taken in accordance with the Rules, 1999 and not otherwise.
6. Part III of the Rules, 1999 provides for penalties. Rule 5 categorised the minor penalties and the major penalties which can be imposed on a member of the Panchayat Service. Under Clause (b) major penalties which can be imposed on a member of a Panchayat Service have been enumerated and reduction in rank and removal from service have been categorised as major penalties. When a Secretary of a Gram Panchayat is either reverted to the rank of Panchayat Karmi or removed from the post of Secretary, he suffers a major penalty mentioned under Clause (b) of Rule 5 of the Rules, 1999.
7. Rule 7 of the Rules, 1999 provides that no order imposing on a member of the Panchayat Service any of the major penalties shall be passed except after a formal inquiry is held as far as may be in the manner provided therein. Hence, unless the procedure laid down in the Rule 7 of the Rules, 1999 is followed, the Secretary of the Gram Panchayat cannot be removed or reverted from the post of Secretary, Gram Panchayat. Therefore, the stand taken by the appellant that he could not have been removed from the post of Secretary, Gram Panchayat or could not have been reverted to a lower post of Panchayat Karmi without an inquiry appears to be correct.
8. Nonetheless Rule 4 of the Rules, 1999 provides that the Appointing Authority or any authority to which it is subordinate or Disciplinary Authority may place a member of Panchayat Service under suspension where a disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial. In the present case, since; an inquiry into the charges of misconduct against the appellant has been 4 ordered by the Collector, Shahdol, a disciplinary case is pending against him. That apart a criminal case for violation of the provisions of the Essential Commodities Act is also pending against the appellant. Hence, the Appointing Authority or the Disciplinary Authority or any authority to which the Appointing Authority is subordinate have the power to place the appellant under suspension. But instead of placing the appellant under suspension pending disciplinary proceedings and pending the criminal trial, the Collector, Shahdol has reverted the appellant to the rank of Panchayat Karmi or has removed him from the post of Panchayat Secretary contrary to the provisions of the Rules, 1999 as discussed above.
As apparent, in the case at hand, no inquiry as is contemplated under Rule 7 of Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 has been conducted.
In view of above, as also the law laid down by Division Bench, this Court is of the considered opinion that the impugned order dated 29.10.2001 and the appellate order dated 28.11.2006 deserve to be and is hereby quashed.
The respondents; however, would be at liberty to initiate action against petitioner in accordance with the provisions contained under Rule 7 of the Rules of 1999 in respect of the interregnum period. The respondents are at liberty to pass an order in accordance with the Rules of 1999.
(SANJAY YADAV) J U D G E Vivek Tripathi