Madhya Pradesh High Court
Ashok Kumar Pathak vs The State Of Madhya Pradesh Judgement ... on 2 April, 2014
Author: A.K. Sharma
Bench: A.K. Sharma
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Appeal No : 1193 of 2008
Ashok Kumar Patkar
- V/s -
State of MP and others
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice A.K. Sharma.
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Shri Vivek Rusia, Counsel for the appellant.
Shri Rahul Jain, Government Advocate, for
Respondents 1 to 4.
Shri P.C. Paliwal, counsel for respondent No.5.
None for respondent No.6.
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Whether approved for reporting: Yes / No.
ORDER
02/04/2014 Calling in question tenability of an order-dated 24.11.2006, passed by the writ court in Writ Petition No. 7972/2004, this writ appeal has been filed under the provisions of section 2 of the M.P. Uchha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. 2- Facts in brief go to show that the appellant herein was appointed as a Panchayat Karmi. Thereafter, by virtue of the powers available to the competent authority under section 69 of the MP Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, he was appointed as a Secretary of the Gram Panchayat in question, namely Jobikala, Block Katni. It is the case of the appellant that he was discharging his duties as a Panchayat Secretary honestly and efficiently. However, the Sarpanch, a lady, and her son were misusing their powers and were 2 Writ Appeal No :: 1193 / 2008 Ashok Kumar Patkar Vs. State of Madhya Pradesh and others.
indulging in various irregular activities by withdrawing funds of the Panchayat and granting lease to their family members and other interested persons under the Indira Awas Scheme. It is stated that as the appellant was objecting to all these illegal activities of the Sarpanch and her son - one Kushal Prasad Sen, they started harassing the appellant and through the Panchayat got a show-cause notice issued to him. It is said that when the appellant was being harassed and as the Panchayat was proposing to remove him from service, he felt mentally upset and under the pressure of the Sarpanch he submitted a communication to the Panchayat Evam Samaj Shikshan Adhikari on 26.11.2002. It is stated that this letter was treated as a resignation and the Panchayat passed a resolution on 26.12.2002, accepting the so called resignation and relieving the appellant from the service. Appellant preferred appeal and revision before the Collector and the Commissioner respectively, when they were dismissed vide orders-dated 26.12.2002 and 4.3.2004, the writ petition was filed. The writ court found that the petitioner had submitted his resignation and thereafter withdrew the resignation on 30.12.2002, after it was accepted on 26.12.2002. The writ court dismissed the writ petition on the ground that the withdrawal of resignation after its acceptance is not permissible.
3- However, Shri Vivek Rusia, learned counsel for the appellant, took us through the documents available on record and tried to emphasize that the appellant had never submitted his resignation, he had only sought for relieving him from the post of Secretary and there was no resignation infact. It is stated that in treating the communication - Annexure P/5 dated 26.11.2002, as the resignation, an error has been committed. That apart, it was argued that even though the appellant has resigned from the post of Panchayat Secretary, he was entitled to continue on the substantive post of Panchayat Karmi, from which post he has not resigned.
4- Placing reliance on a judgment rendered by a Bench of this Court in the case of Hariom Singh Rajput Vs. State of MP and others, 2002 (3) MPLJ 204, learned counsel argued that the substantive post of 3 Writ Appeal No :: 1193 / 2008 Ashok Kumar Patkar Vs. State of Madhya Pradesh and others.
appellant was Panchayat Karmi, even if the communication dated 26.11.2002 is treated to be a resignation, it is from the post of Secretary and not from the post of Panchayat Karmi and, therefore, appellant should have been permitted to work as Panchayat Karmi. That apart, it is contended by the appellant's mental attitude and other conditions were not considered and as the appeal has been dismissed and the orders passed by the Collector and Commissioner has been upheld without taking note of the totality of the circumstances, interference into the matter is sought for.
5- Learned counsel for the respondents refuted the aforesaid and submitted that the appellant submitted the application on 26.11.2002, indicating that he does not want to work in the Panchayat, which meant that he was resigning and once the resignation was accepted, in the absence of any proof with regard to harassment or pressurization by the Sarpanch and her son, the allegations are not correct. It is the case of the respondents that appellant was also responsible for various misappropriation and based on the complaints received, when a show cause notice was issued and when action was proposed to be taken to terminate the appellant from service, to get over from the action, appellant resigned and as an after-thought has come out with the case as indicated hereinabove. It is further stated by learned counsel for state Shri Rahul Jain that the so-called withdrawal of resignation dated 30.12.2002 is not signed by the appellant, it is a communication made by certain residents of the village and, therefore, it cannot be treated as withdrawal of resignation. That apart, it is argued that in the facts and circumstances of the case, the appellant cannot claim any benefit.
6- We have heard learned counsel for the parties at length and perused the records.
7- From the facts that have come on record, it is clear that on 26.11.2002, the appellant submitted a letter to the Panchayat Evam Samaj Shikshan Adhikari under Janpad Panchayat, Katni and the subject of the letter was his inability to discharge duties due to mental problem.
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He thereafter indicates in the letter that he - Ashok Kumar Patkar, Secretary, Gram Panchayat is unable to do the work of the Panchayat and he requests that he be relieved from work of the Panchayat and the work be given to some other individual. Janpad Panchayat, Katni to whom the letter was given forwarded it to the Gram Panchayat, and in the meeting of the Gram Panchayat, which was taken up on 26.12.2002, a resolution was passed accepting the same. After the application was accepted, it seems that a written communication - Annexure P/5 was submitted by various villagers where they only say that the letter submitted by the appellant be not accepted.
8- The first contention of the appellant was that the letter dated 26.11.2002 is not a resignation letter and, therefore, it could not be accepted or treated as his resignation letter. This contention of the appellant is raised for the first time in this appeal. In the writ petition filed i.e.. W.P(S) No.7972/2004, and if the copy of the writ petition is taken note of, it would be seen that in the entire writ petition, the petitioner/appellant has come out with a case that he was an honest and sincere worker, he made complaints against the Sarpanch and the activities of her son, highlighted the illegal activities committed by them and because of the complaints made, he was being mentally tortured and harassed. It is stated that because of this he submitted an application resigning from service. In the writ petition, in paragraphs 5.6, 5.7 and 5.8, the petitioner/appellant has specifically stated that the he was compelled to resign from the post at the instance of the Sarpanch and her son. It is, therefore, clear that the petitioner/appellant himself in the writ petition admits the fact that he was compelled to resign from the post and it is nowhere stated by him that he has not submitted any resignation. That being the stand of the petitioner/appellant in the entire writ petition, now he cannot turn around and say that the letter dated 26.11.2002 is not his resignation letter. On the contrary, appellant's own conduct and the averments made by him in the writ petition clearly shows that he did submit the letter resigning from the post in the Panchayat. Accordingly, we are unable to accept the contention of Shri 5 Writ Appeal No :: 1193 / 2008 Ashok Kumar Patkar Vs. State of Madhya Pradesh and others.
Rusia, learned counsel, that the appellant did not submit any resignation letter.
9- As far as the contention of the appellant that he has only resigned from the post of Panchayat Secretary and has not resigned from the post of Panchayat Karmi is concerned, this was also not the case of the appellant/petitioner before the writ court. The appellant/petitioner has not made any such assertion before the writ court. That apart, if the communication dated 26.11.2002 is taken note of, it would be seen that the appellant does not say that he be relieved of the work of the Panchayat Secretary and permitted to continue as a Panchayat Karmi. On the contrary, in the letter he clearly says that he is unable to do the work of the Panchayat and prays that the work be given to someone else. This clearly shows that the appellant was not interested in working with the Panchayat and it is not a letter by which he seeks for relieving him from the duty of Panchayat Secretary only. Keeping in view the aforesaid, we are unable to accept the contention of the appellant. 10- It is a case where the appellant submitted his resignation and indicated that he cannot work for the Panchayat and once the resignation is accepted, appellant cannot be permitted to withdraw the same. That apart, the so-called withdrawal - Annexure P/5 is not a withdrawal by the appellant in its strict sense. It is only a representation of many villagers requesting the authorities not to accept the resignation. There is nothing on record to show that the appellant has withdrawn the letter dated 26.11.2002. That apart, the contention of the appellant that he has resigned or acted in a manner as indicated only because he was pressurized by the Sarpanch and her son seems to be not established in accordance with law. Except for making a bald allegation in this regard, there is no cogent evident or material available to suggest that the appellant was being harassed or compelled by the Sarpanch and her son to resign from the post.
11- Taking note of all these circumstances, we see no ground to interfere into the matter.
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12- The appeal is, therefore, found to be devoid of merits and is accordingly dismissed.
( RAJENDRA MENON ) ( A.K. SHARMA )
JUDGE JUDGE
Aks/-