Madhya Pradesh High Court
Hariom Singh Rajput vs State Of M.P. And Ors. on 19 April, 2002
Equivalent citations: 2002(3)MPHT541
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. The petitioner who is a Panchayat Karmi challenges the order Annexure P-5, dated 24-1-2001 passed by the respondent No. 3 by which the powers of Secretary have been withdrawn from the petitioner.
2. In pursuance to the provisions of Panchayat Raj Adhiniyam, 1993 scheme known as Panchayat Karmi Yojana for regulating Appointment of Panchayat Karmi was issued by the State Govt. vide Annexure P-1. Accordingly, the petitioner was appointed as Panchayat Karmi in Gram Panchayat, Gwalior vide order Annexure P-2. Subsequently in exercise of the powers contained in Section 69 (1) of the Panchayat Raj Adhiniyam, 1993 the Collector, Shivpuri issued orders on 6-11-95 declaring the petitioner to be a Panchayat Secretary. The petitioner was thereafter discharging the duties of Panchayat Secretary.
3. It is the case of the petitioner that all of sudden the petitioner was restrained from performing the duties of Panchayat Secretary without giving any order in writing and without giving opportunity of hearing. It is contended by the petitioner that on enquiry Sarpanch informed, respondent No. 3 has directed that petitioner should not work as a Panchayat Secretary. Subsequently an application was filed by the petitioner and the order impugned Annexure P-5, dated 24-1-2001 was received by him wherein it has been indicated that the powers of the Panchayat Secretary are being withdrawn.
4. Shri Arvind Dudawat, appearing for the petitioner submitted that the impugned order cannot be sustained as the same has been issued by the Dy. Director and the Dy. Director is not competent to issue such an order under the provisions of Section 69 (1). According to him under the provisions it is only the Collector who can exercise the powers of suspension under Section 69 (1). It is further submitted by the petitioner that no notice or opportunity of hearing was extended to him before impugned order was passed. Case of the petitioner further is that in the return it has been stated that powers of Secretary were withdrawn from the petitioner because certain criminal cases have been registered against him. It is submitted by Shri Dudawat for the petitioner that notice to show cause in the present case was issued on 21-6-2001 and the criminal case has been registered sometime in October, 2001. It is submitted that the case has been instituted only for the purpose of defending the present petition. Placing reliance on an order passed by this Court in W.P. No. 404/2001, Raj Kumar Yadav v. State of M.P. and others, it is submitted by the petitioner that the impugned order cannot be sustained, reliance is also placed by him on a judgment of Supreme Court reported in the case of Shrawan Kumar Jha and Ors. v. State of Bihar and Ors., (1991) Supplementary (1) SCC 330.
5. Per contra the respondents have submitted that the petitioner has a right of appeal to the Competent Authority under the M.P. Panchayat Karmi (Appeal and Revision) Rules, 1995 and therefore, writ petition directly filed is not maintainable. It is further submitted that the order impugned has been passed by the Collector and Annexure P-5 is only communication of the order of the Collector. It is stated that a perusal of the order Annexure P-5 would indicate that it is clearly mentioned that the orders have been passed as per directions of the Collector. Apart from this certain note-sheet and complaints contained in Annexures P-1 and P-2 have been brought on record which according to the respondents indicate that the orders have been issued by the Collector. It is submitted by the respondents that the petitioner had committed various financial irregularities for which report was lodged with the police and certain criminal cases have been registered against him. Reliance is also placed on letter Annexure R-1, dated 17-10-2001 issued by the competent authority of Police Station, Sehore, District Shivpuri, wherein it is indicated that Crime No. 10/2001 under Sections 420/409/34, IPC have been registered against the petitioner. It is the case of the respondents that in view of this no case for grant of relief is made out. It is further submitted by the respondents that the petitioner is a Panchayat Karmi and he is still working as Panchayat Karmi additional charge of Panchayat Secretary was given to him as per the provisions of Section 69 (1) and because of allegations of misappropriation etc., the charge of Secretary has been withdrawn. For this no opportunity of hearing or show-cause notice was issued.
6. I have heard the learned Counsel for the parties.
7. Appointment of Panchayat Secretaries are governed by Section 69 of the Panchayat Raj Adhiniyam, 1993. The provisions of Section 69 provides for appointment of Secretary and Chief Executive Officer. Section 69 reads as under:--
"69. Appointment of Secretary and Chief Executive Officer.--
(1) The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more :
Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this Section:
Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such person happens to be relative of any office bearer of the concerned Gram Panchayat.
(2) The State Government shall appoint for every Janpad Panchayat a Chief Executive Officer and may also appoint one or more Additional Chief Executive Officer, who shall discharge such function and perform such duties as may be assigned to them by the Chief Executive Officer.
(3) The State Government shall appoint for every Zila Panchayat a Chief Executive Officer and may also appoint one or more Additional Chief Executive Officers, Deputy Chief Executive Officers and Executive Officers who shall discharge such functions and perform such duties as may be assigned to them by the Chief Executive Officer.
(4) During the absence of a Secretary of Gram Panchayat or Chief Executive Officer of Janpad Paochayat or Zila Panchayat due to leave, retirement, death, resignation or otherwise, the prescribed authority shall, as soon as possible, make such arrangements as he deems fit, for carrying on the office of Secretary of Gram Panchayat or (Chief Executive Officer of Janpad Panchayat or Zila Panchayat) as the case may be. A person while carrying on such office shall exercise all powers conferred by this Act or rules made thereunder on the Secretary of Gram Panchayat or (Chief Executive Officer of Janpad Panchayat or Zila Panchayat) as the case may be.
(5) The Secretary of the Gram Panchayat the (Chief Executive Officer of the Janpad Panchayat and Zila Panchayat) shall be responsible for keeping and maintaining the records of the Gram Panchayat, Janpad Panchayat or Zila Panchayat as the case may be."
It is an admitted position that the Collector is a person who can appoint Secretary. The case of the petitioner is that Dy. Director had no authority to withdraw the order appointing the petitioner as Panchayat Secretary. Placing reliance in the case of Raj Kumar Yadav (supra) it is stated that in that case also it was ordered that Dy. Director cannot withdraw the powers of Secretary and after considering the note sheet in that case also it was held by this Hon'ble Court that the Collector has passed the order without application of mind and without calling the report from Gram Panchayat. I have perused the order passed by this Court in the case of Raj Kumar Yadav (supra) the said case is clearly distinguishable. In that case allegations on which Secretary was removed pertained to certain complaints and the allegations against the employee in that case were not attending the Panchayat meeting on a number of occasions. The allegations in that case are entirely different from this case. There was also no report from the Gram Panchayat in the case of Raj Kumar Yadav, however a perusal of Annexure R-2 the note sheet in the instant case indicates that the Up-Sarpanch on 9-1-2001 submitted a detailed note with regard to misappropriation committed by the petitioner in the note sheet. It was stated that while discharging the duties of Secretary the petitioner had committed certain irregularities and misappropriation of Government money accordingly, it was proposed to be taken action against him under Section 69. It is therefore clear that the proposal was initiated by the Gram Panchayat and the allegations were with regard to misappropriation and fraud, the note-sheet also indicates that an observation was made for handing over the matter to the police for further enquiry. It is on the basis of this note-sheet that the Collector directed that withdrawing powers on 24-1-2001 and the impugned order was passed on the basis of the orders of the Collector. A perusal of this note-sheet indicates that detailed allegations against the petitioner were contained in the note-sheet and the Collector after having gone through the same and having considered seriousness of the allegations had signed the note-sheet. Considering the allegations and process made in this note-sheet it seems that the case is clearly distinguishable from that of Raj Kumar Yadav, that was a case where this Court was inclined to interfere in the matter because the note-sheet was with regard to allegations of non-attending of meeting by the Secretary it was prepared by the Chief Executive Officer and the Dy. Director recommended for withdrawal of powers. In the instant case the note-sheet has been initiated and the Up-Sarpanch and Dy. Director have only placed it for consideration. In the aforesaid facts and circumstances of the present case I am not inclined to accept the submissions of the petitioner that the Collector had acted mechanically without application of mind. On the contrary the presumption has to be that the Collector after having considered the entire note-sheet has ordered for withdrawal. Accordingly the arguments that the orders have been issued by the Dy. Director cannot be accepted as the record indicates that the order of suspension was issued by the Collector. The case of the petitioner further is that registration of criminal case after notice issued by this Court cannot be a ground for suspending him. I am afraid of the aforesaid submission which is without any basis. A perusal of the Annexure R-2 indicates that as far back on 9-1-2001 proposal was made not only from withdrawing the powers but also to file a complaint to the police against the petitioner. Accordingly after the petitioner was suspended on 24-1-2001 steps have been taken and merely because the letter was issued to the police station on 17-10-2001 as mentioned in Annexure P-1 that cannot be a ground for disbelieving the submissions of the respondents, moreover the petitioner is holding a substantive post of Panchayat Karmi the powers of Secretary were given to him as an additional charge. Withdrawal of additional charge in the back drop and the serious allegations cannot be said to have been arbitrary or illegal. Section 69 of the Panchayat Raj Adhiniyam empowers the Collector to appoint a Secretary to discharge the functions provided for in the Adhiniyam and if it is found that said person has committed irregularities of serious nature like misappropriation of funds, no error can be found out under the powers of the Collector.
8. The case of the petitioner that he has not been issued any show-cause notice or opportunities of hearing have not been granted to him, will not be applicable in the facts and circumstances of the present case because the petitioners' substantive appointment as Panchayat Karmi is still protected and it is only the additional charge of Secretary which was given to him.
9. It is therefore considered view of this Court that under these circumstances pending clear exoneration from the charges the petitioner cannot be permitted to hold the charge of the Secretary.
10. Considering the aforesaid there is no merit in the petition, the same is therefore dismissed without any order as to costs.