Madhya Pradesh High Court
Hanumat Singh Raghuvanshi vs The State Of M.P. And Ors on 2 February, 2012
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 77 of 2003
Hanumat Singh Raghuvanshi
- V/s -
State of MP and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Ashish Pathak with Shri S.K. Raghuvanshi,
Counsel for the petitioner.
Shri Sanjeev Kumar Singh, Panel Lawyer, for
Respondent Nos. 1 to 5.
Shri Ramesh Soni, counsel for respondent Nos.6 & 7.
None for respondent No.8. Office report indicates that
Respondent No.8 has refused to accept notice sent to
him. Accordingly, he is deemed to have been served.
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Whether approved for reporting: Yes / No.
ORDER
02/02/2012 Challenge in this writ petition is made to the action of the Gram Panchayat in question in terminating the services of the petitioner from the post of Panchayat Karmi and consequently terminating his appointment as Panchayat Secretary. Challenge is also made to the orders passed by the appellate authority and the revisional authority rejecting the appeal and revision preferred by the petitioner. The orders in question are dated 25.2.2003 passed by the Gram Panchayat - respondent No.6; the resolution dated 21.2.2002 passed by the Gram Panchayat; the order-dated 6.1.2005 passed by the Deputy Director, Raisen, approving the action of the Gram Panchayat; and, the consequential orders passed by the Collector and the Commissioner, the appellate authority and the revisional authority rejecting the appeal and revision of the petitioner.
2- Facts that have come on record, indicate that vide resolution dated 12.9.1995, the Gram Panchayat in question resolved to appoint the 2 petitioner as a Panchayat Karmi and subsequently the powers of Panchayat Secretary was also conferred upon him after approval of respondent No.5, on 13.10.1995. In pursuance to the same, the petitioner joined duty and was working. It seems that in the year 2002 on various allegations a show-cause notice dated 7.2.2002 - Annexure P/9 was issued to the petitioner. In the said show-cause notice more than nine imputations were made against the petitioner. The petitioner submitted his reply to the same vide Annexure P/10 and denied the allegations. The matter was thereafter placed before the Gram Panchayat and by a majority resolution passed, the impugned action is taken. The challenge before the appellate authority and the revisional authority having failed, petitioner is before this Court.
3- Shri Ashish Pathak, learned counsel for the petitioner, taking me through the documents available on record, particularly the show-cause notice on the basis of which the services of the petitioner not only as a Panchayat Secretary, but also as a Panchayat Karmi have been brought to an end, emphasized that the termination in question is effected on the basis of certain allegations levelled against the petitioner, which amounts to misconduct and it is an act amounting to punishment of the petitioner for the misconduct committed. It is submitted that petitioner being a Panchayat Karmi and a Panchayat Secretary, the M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 (hereinafter referred to as 'Rules of 1999') are applicable and in the said rules action for misconduct can be taken by imposing major or minor penalties as contemplated under Rule 5 and the procedure for imposing the penalty - major in nature, is contemplated under Rule 7. As dismissal or removal from service is a major penalty, it is emphasized by learned counsel that the detailed procedure contemplated under Rule 7 has to be followed and in this case, the aforesaid statutory requirement has not been complied with. It is submitted by Shri Ashish Pathak, learned counsel that merely by issuing a show-cause notice, receiving a reply to the same and thereafter placing the matter before the Gram Panchayat for taking action is not the procedure to be followed for imposing a major penalty 3 of removal or dismissal from service. It is emphasized by him that under the Rules of 1999, both for imposing major and minor penalties specific rules have been framed and when specific rules have been framed, anything done in contravention to the same is illegal and in the present case as the statutory requirement of the Rules of 1999 have not been followed, it is submitted by him that the entire action stands vitiated. 4- In support of his contention that for taking action the procedure contemplated under Rule 7 has to be followed, Shri Ashish Pathak invites my attention to a Division Bench judgment of this Court in the case of Lalla Prasad Burman Vs. State of MP and others, 2008(3) MPHT 26 = ILR 2008 MP 1050. Accordingly, it is the case of the petitioner that as the action impugned is contrary to the statutory provisions, the same is unsustainable and is liable to be quashed. 5- Shri Sanjeev Kumar Singh, learned Panel Lawyer, and learned counsel representing the other respondents, argued that in this case as a show cause notice was issued to the petitioner and the petitioner was granted an opportunity to give his say to the show-cause notice, the requirement of law has been complied with and, therefore, there is no illegality in the matter.
6- I have heard learned counsel for the parties and perused the record.
7- The factual assertion as is made by the parties and as is indicated hereinabove is not in dispute. It is not in dispute that before taking action against the petitioner only a show cause notice - Annexure P/9 was issued and the detailed procedure contemplated under Rule 7 of the Rules of 1999 have not been complied with. The question is as to whether the action undertaken in the manner indicated can be upheld. 8- M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 have been framed by the Government in exercise of the powers conferred on it under section 95 read with section 73 of the MP Panchayat Raj Adhiniyam, 1993 and it pertains to laying down rules for taking disciplinary action against the employees, who are in the Panchayat service. Admittedly, the services of a Panchayat Secretary and 4 Panchayat Karmi are governed by these rules. In the said rules, definition of appointing authority, disciplinary authority, meaning of the words minor penalty, major penalty have been indicated, a detailed procedure for suspension is contemplated under Rule 4; the various minor and major penalties are contemplated under Rule 5 and the authority to impose these punishment are contemplated under Rule 6. The procedure for imposing major penalty is contemplated under Rule 7 and the procedure for imposing minor penalty is contemplated under Rule 8. Thereafter, various other provisions, which may not be relevant for the present case, are also indicated.
9- As far as Rule 7 is concerned, the sub-rule (1) of the said Rule contemplates that no order imposing on a member of a Panchayat Service, any penalty specified in Rule 5 from Clause (iv) to Clause (vi-a) shall be passed without conducting a formal inquiry in accordance to the manner contemplated therein. Thereafter, from sub-rule (2) onwards upto sub-rule (11), a detailed procedure for conducting an inquiry is contemplated, which includes issuance of a charge-sheet; opportunity to give reply to the charge-sheet; appointment of an inquiry officer; conducting an inquiry by the inquiry officer; the manner in which the inquiry is to be conducted, including the right of an employee to take assistance of a defence counsel to defend him in the inquiry; the procedure to be followed by the inquiry officer; the manner of recording evidence; production of documents; the findings to be given by the inquiry officer and thereafter action to be taken on the findings so submitted. It is, therefore, clear that a detailed procedure for imposing major penalty is contemplated under Rule 7 and removal from service or dismissal from service are two of the major penalties under Rule 5. 10- In the present case, petitioner is removed from service, he has been in employment since 1995, the action is taken after a period of seven years and the show-cause notice - Annexure P/9 indicates that the action is taken because of the allegations levelled in the show-cause notice. It is, therefore, a case where a punishment, that is a major punishment of removal from service is imposed upon the petitioner and 5 while doing so, the requirement of the statute i.e... Rule 7 of the Rules of 1999 has not been followed. In the case of Lalla Prasad Burman (supra), it has been held that any action taken for removal or dismissal of a Panchayat Karmi or a Panchayat Secretary in contravention to Rule 7 is illegal. In the present case, the respondents have not conducted the proceedings in accordance to the requirement of Rule 7, in as much as no charge-sheet was issued to the petitioner; no inquiry officer was appointed; no inquiry was conducted; and, there is no finding of guilt recorded against the petitioner in a properly conducted departmental inquiry after following the procedure contemplated under Rule 7. Merely by issuing a show-cause notice and by seeking reply to the same the Panchayat or the authorities concerned could not terminate the services of the petitioner, as the same amounts to imposing a punishment of dismissal or removal from service, which is a major penalty and can be imposed only after following the statutory requirement of Rule 7 of the Rules of 1999.
11- Accordingly, finding the respondents to have taken action for bringing to an end the services of the petitioner, illegally, contrary to the requirement of the statutory provisions, this petition is allowed. Orders impugned in this petition, which include resolution of the Gram Panchayat; the order passed by the Gram Panchayat for terminating the services of the petitioner from the post of Panchayat Karmi or removing the petitioner from the post of Panchayat Karmi/Secretary are quashed. The consequential orders passed by the appellate authority and the revisional authority are also quashed. The respondents are directed to reinstate the petitioner in service, grant him all consequential benefits and thereafter liberty is granted to the respondents to proceed in the matter in accordance with law, if they so desire.
12- With the aforesaid, the petition stands allowed and disposed of.
( RAJENDRA MENON ) JUDGE Aks/-