Madhya Pradesh High Court
Darshan Singh Kushwah vs The State Of Madhya Pradesh on 22 May, 2017
1 WP 7893/14(s)
Darshan Singh Kushwah Vs. State of M.P. & others
23/5/17
Shri D.P.Singh, Advocate for the petitioner.
Shri Anil Kumar Shrivastava, Advocate for the State
1.The present petition filed u/Art. 226 of the Constitution assails the order of removal from service as major penalty against the petitioner holding the post of Secretary of Gram Panchayat, solely on the ground that the Chief Executive Officer, Zila Panchayat who has passed the order of penalty is not competent under the provisions of the M.P. Panchayat Service (Discipline & Appeal) Rules, 1999 (for brevity Rules 1999) for inflicting the said penalty.
2. Learned counsel for the rival parties are heard on the question of admission as well as final disposal.
3. Learned counsel for the petitioner referring to the Rules of 1999, in particular the Appendix appended to the said Rules, contends that for post categorized as Class IV, Secretary is the Disciplinary Authority for imposing minor penalty whereas the General Administration Committee Committee of Gram Panchayat is the competent authority to inflict major penalty. On the basis of these provisions it is submitted as a corollary that the Secretary who belongs to class IV category cannot be inflicted with major penalty of removal by the authority other than the General Administration Committee and since major penalty has been inflicted herein by the CEO of Zila Panchayat, the order of penalty is bereft of jurisdiction and deserves to be quashed.
3.1 The entire submission of the learned counsel for the petitioner is based on the assumption that the Appendix appended to the Rules 1999 prescribe Disciplinary Authority for the post of Secretary. This court is unable to countenance the said submission as bare perusal of the Appendix to Rules 1999 shows that it prescribes Disciplinary Authority and Appellate Authority in respect of Class IV employees of 2 WP 7893/14(s) Darshan Singh Kushwah Vs. State of M.P. & others Gram Panchayat. Secretary by no stretch of imagination can be termed as Class IV employee of the Gram Panchayat. The Appendix thus is not relevant to decide the controversy in question about the competence or incompetence of CEO of Zila Panchayat to pass the order of penalty.
3.2 The State Govt. in exercise of powers conferred by Sec. 95(1) read with Sc. 69(1) of the M.P.Panchayat Evam Gram Swaraj Adhiniyam, 1993 has framed the M.P. Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment And Conditions of Service), Rules 2011 (for brevity Rules 2011) for the purpose of governing and regulating services of Secretary of Gram Panchaya, which inter alia in Rule 7 prescribe for disciplinary action to be taken against Gram Panchayat Secretary in accordance with Rules 1999. In the Rules 2011 Schedule I is appended which alongwith Rule 3(1)(b) to Rules 2011 categorically prescribe CEO of the Zila Pancyayat as the appointing authority for the post of Gram Panchayat Secretary.
4. In view of the above, once it is statutorily provided that appointing authority of the Gram Panchayat Secretary is CEO of Zila Panchayat, it is obvious that the order impugned having passed by the CEO is passed by the competent authority.
5. More so, reference to the definition of the appointing authority and Disciplinary Authority in Rule 2(b) and 2(c) of the Rules 1993 is essential for deciding the controversy. The appointing authority as per rule 2(b) is defined thus:-
"2. (b) "Appointing Authority" in relation to a person appointed in the Panchayat Service means :-
(1) Such officer, who in that service in which he hold the post at that time, empowered to make appointments of such officer to whom the powers of appointment is delegated to the service of that class or grade to which he is a member at that time.
3 WP 7893/14(s) Darshan Singh Kushwah Vs. State of M.P. & others (2) Such officer, who at that time, hold the post in substantive or temporary capacity in that service in which he is appointed 5.1 Further Rule 2(c) defines the Disciplinary authority.
"(c) "Disciplinary Authority" in relation to the imposition of penalty on a member of the Panchayat Service means the authority declared to be the disciplinary authority under the Appendix appended to these rules"
6. It is settled principle of law in service jurisprudence that major penalty especially the one imposed herein, i.e. Removal from service cannot be passed by the authority which is subordinate to the Disciplinary Authority. 2011 Rules governing the service condition on the post of Gram Panchayat specifically empowers the CEO as appointing authority.
7. Harmonious reading of 1999 Rules and 2011 Rules together leads to a situation that after coming into effect of the 2011 Rules, the process of recruitment and other conditions of service including defining the appointing and disciplinary authority is exclusively governed by the 2011 Rules qua the post of Secretary Gram Panchayat. However, for taking disciplinary action against the Secretary Gram Panchayat by the authority prescribed under 2011 Rules, the procedure to be adopted for imposing major or minor punishment as per Rules 7 & 8 of the 1999 Rules is required to be borrowed. This becomes necessary since 2011 Rules do not separately prescribe any procedure for taking disciplinary action against the Secretary Gram Panchayat but instead prescribes in Rule 7 that for the purpose of disciplinary action against Secretary Gram Panchayat Rules 1999 would apply. Rule 7 is produced below for ready reference and convenience:-
"7. Discipline and control.- The rules of the Madhya Pradesh Panchayat Service (conduct) Rules, 1998, shall be applicable to the Gram Panchayat Secretary. The Gram Panchayat Secretary shall be under 4 WP 7893/14(s) Darshan Singh Kushwah Vs. State of M.P. & others the administrative control of the Gram Panchayat. The disciplinary action against the Gram Panchayat Secretary shall be taken in accordance with the provisions of the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999."
8. The above said interpretation is necessary since 2011 Rules do not provide for any procedure for conduction of disciplinary proceedings and therefore the procedure laid down in Rules 7 and 8 of the Rules 1999 while taking disciplinary action against the Secretary, deserves to be borrowed.
8.1 In this manner, the Rules 1999 and the Rules 2011 can be harmoniously read and supplement each other instead of creating conflict.
9. In view of the above, it is obvious that the CEO being appointing authority in law, the impugned order was passed by the competent authority and therefore the challenge to the said order on the solitary ground of the CEO Zila Panchayat is not competent to pass the order of removal against the petitioner is untenable.
10. Accordingly, the petition stands dismissed with liberty to the petitioner to assail the order of penalty of removal on other grounds if available. If any such appeal is filed within 30 days from today, the same shall be entertained and decided without being dismissed on limitation alone by the appellate authority.
No cost.
(Sheel Nagu) Vacation Judge (Bu)