Madhya Pradesh High Court
Omprakash Gurjar vs Panchayat And Rural Development ... on 25 April, 2022
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 25th OF APRIL, 2022
WRIT PETITION No. 23267 of 2019
Between:-
OMPRAKASH GURJAR S/O GOVIND SINGH
GURJAR OCCUPATION: ROJGAR SAHAYAK
VILLAGE PANGARI TEHSIL SATWAS, DISTRICT
DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI JITENDRA VERMA-ADVOCATE)
AND
1. PANCHAYAT AND RURAL DEVELOPMENT
DEPARTMENT PRINCIPAL SECRETARY VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. COMMISSIONER UJJAIN (MADHYA PRADESH)
3. PROGRAMME OFFICER / CHIEF EXECUTIVE
OFFICER JANPAD PANCHAYAT KANNAUD JANPAD
PANCHAYAT KANNAUD DIST. DEWAS (MADHYA
PRADESH)
4. COLLECTOR / DISTRICT MAGISTRATE DEWAS
(MADHYA PRADESH)
5. GRAM PANCHAYAT PANGARI THROUGH
SARPANCH GRAM PANCHAYAT PANGARI GRAM
PANCHAYAT PANGARI TEH. SATWAS DIST. DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ADITYA GARG-GOVT. ADVOCATE)
This petition coming on for orders this day, the court passed the following:
ORDER
The present petition under Article 226 of the Constitution of India has been filed being aggrieved by the order dated 15.10.2019 passed by respondent No.2 whereby the appeal filed by the petitioner has been dismissed affirming the order passed by Chief Executive Officer, Jila Panchayat, Dewas. By order dated 8.8.2017 the services of the petitioner have been terminated.
Facts of the case are that an advertisement was issued for the post of Signature Not VerifiedDigitally signed by Rozgar Sahayak in Gram Panchayat, Pangiri, Tahsil Satwas, district Dewas. The SAN MUKTA CHANDRASHEKHA R KOUSHAL Date: 2022.04.26 17:05:25 IST petitioner being an eligible candidate applied for the said post. He was appointed 2 on the aforesaid post by order dated 22.08.2012. In clause 15 of the appointment order it was mentioned that if the petitioner is involved in any misconduct then he shall not be terminated from service without giving any reasonable opportunity of hearing and enquiry. It is stated that a show cause notice dated 24.07.2017 was served upon the petitioner making certain allegations regarding his performance. The petitioner replied to the aforesaid show-cause notice on 4.08.2017 stating that the allegations made in the showcause notice are false. It was alleged that he failed to perform his duties in respect of construction of CC Road. The petitioner submitted a detail reply stating that Secretary of the aforesaid Gram Panchayat was suspended and because of that he was given additional charge of the said Gram Panchayat. Thereafter, during that period, the Road was already constructed and that was done under the supervision of Sub Engineer, in which the petitioner had no role. So far as other allegation regarding construction of toilet of Sukharam S/o Bondar is concerned, the same was completed and the relevant document was produced with the reply. Sukharam also gave an affidavit before the Chief Executive Officer of Jila Panchayat regarding completion of his toilet but the same was not considered. So far as issue no. 3 is concerned, the concerned persons Aslam S/o Rashid and Akbar S/o Rashid who were eligible to get benefit of construction of toilets, had submitted applications twice and the same was approved by the competent authority in which the petitioner had no role because he was not working as a Rozgar Sahayak in the aforesaid Gram Panchayat at the relevant point of time. The allegation No.4 is also incorrect and he had submitted reply to the said allegation also.
Counsel for the petitioner submits that respondent No.3 found that the allegation Nos.1 and 2 were not proved against the petitioner but still his services have been terminated vide order dated 8.08.2017 without making any enquiry on the ground of allegation Nos. 3 and 4. The appeal filed against the said order has also been dismissed by a mechanical order without appreciating the aforesaid submission.
Signature Not VerifiedDigitally signed byCounsel for the petitioner further submits that petitioner was appointed as SAN MUKTA CHANDRASHEKHA R KOUSHAL Date: 2022.04.26 17:05:25 IST Rozgar Sahayak and thereafter he was notified as Assistant Panchayat Secretary, therefore the action against petitioner could have been taken by the respondents 3 only in accordance with M.P. Panchayat Service (Discipline and Appeal) Rules, 1999 which shall be referred hereinafter as the 'Rules, 1999'. It is submitted that under Rule 5, the minor penalties and major penalties have been specified. Under clause(b), major penalties can be imposed on a member of a Panchayat service only after holding an enqiry in the manner provided thereunder. It is submitted that unless the procedure laid down in Rule 7 of Rules, 1999 is followed, the services of the petitioner could not have been removed. Thus, the impugned order has been passed without following any enquiry and giving opportunity of hearing to the petitioner. In support of his submission, he has placed reliance on the judgment passed by co-ordinate Bench in the matter of Nanuram Vs. State of M.P. and others, 2018 (1) MPLJ 63 wherein it is held that order of transfer of an employee of Panchayat Secretary if stigmatic, then same cannot be passed without affording opportunity of hearing to the petitioner. In the case of Premchand Yadav Vs. M.P. Poorva Kshetra Vidyut Vitran Company Ltd., 2013(2) MPLJ 323, the co-ordinate Bench of this Court held that in the matter of termination of contractual appointment, the order of termination cannot be passed without affording opportunity of hearing to the petitioner. He has also placed reliance on the order passed by co-ordinate Bench in Writ Petition NO. 7223 of 2020 (Devendra Vishwakarma Vs. State of Madhya Pradesh and others) and also the order dated 17.09.2021 passed in Writ Petition NO. 23408 of 2018 (Hukum Vs. State of M.P.). He has also placed reliance on a recent order passed by the co- ordinate Bench of this Court on 4.04.2022 in Writ Petition NO. 21881 of 2019 (Vikram Singh Vs. Panchayat and Social Justice Department). In this case it has been held that even in the case of termination of service of contractual employee, the order of termination which is stigmatic in nature, cannot be regarded as a termination simpliciter.
Counsel for the State submitted that services of the petitioner have been terminated as per clause 16 of the instructions relating to appointment of Gram Rozgar Sahayak issued by M.P. Rajya Rozgar Guarantee Parishad. It is submitted that where the gross negligence in discharge of the duty is proved in furtherance of Signature Not VerifiedDigitally signed by SAN MUKTA CHANDRASHEKHA R KOUSHAL Date: 2022.04.26 17:05:25 IST the order passed by CEO, Jila Panchayat, the services of the said employee is 4 liable to be terminated. He has placed reliance on an internal communication sent by the Office of Program Officer, Janpad Panchayat, Kannod to the CEO, Jila Panchayat Dewas. He supports the order of termination and submits that since the petitioner was contractual employee, therefore no enquiry was necessary to be conducted before passing the order of termination.
I have heard learned counsel for the parties.
After hearing learned counsel for both parties, I am of the considered opinion that the impugned order cannot be sustained in the eye of law. Admittedly the petitioner was working as Gram Rozgar Sahayak and was notified as Assistant Panchayat Secretary. His services were governed by the Rules of 1999, and therefore, his services could not have been terminated without following the procedure laid down in Rule 7 of the Rules, 1999. Even if accepting the submission of learned counsel for respondents that petitioner was working as Rozgar Sahayak and his services were governed by the instructions relating to appointment of Gram Rozgar Sahayak, still as per clause 15 of the appointment order wherein it is clearly mentioned that if the employee is involved in any misconduct, then he shall not be terminated from service without giving opportunity of hearing and enquiry.
Upon bare perusal of the order of termination, there is no doubt that the order of termination of petitioner is stigmatic in nature and cannot be regarded as termination simpliciter. The order clearly reveals that a stigma has been casted upon the petitioner which shall have a direct impact upon his future prospects. As the impugned order amounts to a stigma, the services of the petitioner could not have been terminated without holding an enquiry as has been laid down in the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal and others, 2001 (3) MPLJ 616 and Jitendra Vs. State of M.P. and others, 2008(4) MPLJ 670. Therein it has been categorically held that even the service of contractual employee cannot be terminated without conducting regular enqiry if the order amounts to a stigma. In the case of Hukum (supra), this Court has set aside Signature Not VerifiedDigitally signed by the impugned order and directed the respondents to reinstate the petitioner in SAN MUKTA CHANDRASHEKHA R KOUSHAL Date: 2022.04.26 17:05:25 IST service with 50% backwages.
In view of aforesaid, the impugned order is hereby set aside. The 5 respondents are directed to reinstate the petitioner in service with 50% backwages within a period of 2 months from the date of communication of the order. However, liberty is granted to the respondents to proceed against the petitioner afresh in accordance with law, if so advised.
Accordingly, writ petition is allowed to the extent indicated above. C.c. as per rules.
(VIJAY KUMAR SHUKLA)
JUDGE
MK
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN MUKTA
CHANDRASHEKHA
R KOUSHAL
Date: 2022.04.26
17:05:25 IST