Rajkumar Kurre v. State of Chhattisgarh

SB:_Hon'bleShri Satish K. Agnihptri, J. Present: Shri Pallav Mishra, Advocate for the petitioner. Shri P.K.Bhaduri, Panel Lawyer for the State. Shri Ravindra Agrawal, Advocate for the respondent No. 4. Shri V.K.Pandey, Advocate for the respondent No. 6 and 7. ORDER (Delivered on .f.Z'.'.day ofJuly, 2012) Challenge in this petition is tp the order dated 18.5.2005 (Aunexure - A/8) whereby the order dated 29.11.2004 (Annexure - A/5) passed by the Director, Panchayat, removing the petitioner from the post of Panchayat Secretary was confirmed and order dated 13.2.2005 (Annexure - A/7) whereunder on the basis of resolution of Gram Panchayat Markadih,Janpad Panchayat, Nawagarh, District Janjgir, services of the petitioner from the post of Panchayat Karmi was terminated. The facts, in brief, as projected by the petitioner are that a complaint was made on 26.06.2004 against the Sarpanch aad the petitioner, the then Panchayat Karmi (Secretary), making various allegations,upon which, the Chief Executive Officer, Janpad Paachayat, Janjgir conducted an enquiry and submitted his report on 09.07.2005 (Annexure P/l). Again an enqmry was made by the Naib Tahsildar who submitted his report on 29.09.2004. On the basis of the said enquiry report, the Deputy Director, Panchayat & Social Welfare issued a show cause notice on 05.11.2004 (Annexure A/3) asto why ^SKi[ .. -s"" .?'-'''2a.\ . ^l^ j '%,,^~«y ''''SjiftK^ his services may not be termmated. The petitioner replied to the said show cause notice on 22.11.2004 (Annexure A/4). Thereafter, the Deputy Director passed the final order caaceling the notification of appointment of the petitioner as Panchayat Secretary and thereby removing him from service by order dated 29.11.2004 (Annexure A/5). Being aggrieved, the petitioner preferred an appeal before the Director, Panchayaf. The Du-ector, Panchayat, granted an order of stay on 21.12.2004 (Annexure A/6). However, the order ofstay was vacated later on. In the meantime, the Gram Panchayat passed a resolution and without affording an opportunity of hearing to the petitioner, remoye the petitioner from the post of Pancahyat Kamii also by order dated 13.02.2005 (Armexure A/7), which is sought to be impugned by amendment of the petition, as ordered on

08.08.2010. The appeal of the petitioner was also dismissed on

18.03.2005. , • / Shri Mishra, learned coimsel appearing for the petitioner submits the order of removal was passed relying upon the report submitted by the Naib Tahsildar, without application of mind, as neither the statements ofthe beneficiaries were recorded nor their signatures were verified. Further, on the same allegations, which were leveled against the Sarpanch, only an order of recovery was made whereas, the petitioner has been tenninated from service. Per contra, Shri Bhadur, leamed Panel Lawyer appearing for the Stat/respondent No. 1, 2, 3 and 5 would submit that on receipt ofthe complaint, an enquiry was conducted by the respondent No. 4 which found that the petitioner did not provide mid day meals to the school children and the respondent No. 5 also, in his enquiry report, found him guilty of the charges. The petitioner was afforded proper opportunity ofhearing by fhe Deputy Director, Panchayat by issuing y". • VS!'^, ^ ^. ^,--',, "•'i-i^,^-'' show cause notice to which the petitioner filed his reply also. After considering the same, the impugned action was taken. Shri Agrawal, leamed counsel appearing for the respondent No. 4 and Shri Pandey, learned counsel appearing for the respondent No. 6 7 and 8, would support the contention of leamed counsel for the State/respondent No. 1, 2, 3 and 5. Shri Pandey would ferther submit that the appointment of the respondent No. 8 cannot be challenged by way of amendment after lapse of about 3 years &om the date of appointment. Thus, this petition may be dismissed. Heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. It appears that a spot inspection was done on 29.05.2004 in presence of persons (Annexure R/l). Thereafter, a show cause notice was issued on 05.11.2004 (Annexure A/3) to submit his response within a period of7 days. The Gram Panchayat, on 13.02.2005 (Annexure A/7) resolved to remove the petitioner from the post ofPanchayat -w.e.f. 13.02.2005 and thereafter, the impugned Kanni (Secretary) order was passed on 13.02.2005 (Annexure A/7). It is not the case of the respondents that an enquiry as contemplated under Rule 7 of the Chhattisgarh Panchayat (Discipline & Appeal) Rules, 1999 (for 'the Rules, 1999') was conducted before the impugned order short, waspassed. A show cause notice in respect of removal from the post of Panchayat Karmi (Secretary) was issued on 05.11.2004 by the Deputy Director, Panchayat and reply to the said show cause notice was submitted on 22.11.2004 and thereafter, the impugned order was passed on 29.11.2004 (Annexure A/5). The authorities below have gone on the facts that since a show cause notice was issued to the petitioner who admitted his guilt, thus, it was not necessary to hold •'y'. ,. ,/' • ^.."^' "i A *., further enquiry as contemplated under Rule 7 of the Rules, 1999. The orders passed by the respondent authorities are faulted as the procedure prescribed in Rule 7 ofthe Rules, 1995, being mandatory, have not been followed.

9. It is evident that the impugned termination order was passed without following the properprocedure oflaw, as prescribed under Rule 7 of the Rules, 1999. The procedure for holdiag an enquiry is prescribed under Rule 7 ofthe Rules, 1999 for imposition of a majorpenalty. Hence, the termination is bad and vitiated on the ground of non- compliance ofthe statutory provisions and denial ofthe principles of natural justice. It amounts to infraction ofnot only the provisions of Rule 7 ofthe Rules, 1999 but also the provisions ofArticle 311(2) of the Constitution of India. The impugned order is in fact penal in nature, having civil consequences and as such compliance of the elaborate provisi&ns, as enshrined in Rule 7 ofthe Rules, 1999 was mandatory in the present case. (See: Dhalwam Kosaria v. State of Chhattisgarh & Others aad Anjordas v. State of Chhattisgarh & Others).

10. A Division Bench ofthis Court,in Rooplal Nayak v. The State of Chhattisgarh & Others , ia a similar facts and circumstances, quashed the order of the Collector, Rajnandgaon, whereby the petitioner, working as Panchayat Secretary, was removed from the post of Panchayat Secretary holding that such .penalty cannot be imposed on a member of Panchayat Service without conducting a regular departmental enquiry as envisaged under Rule 7 ofthe Rules,

1999. '2006(2)CGLJ186 22008(m)MPJR-CG110 3 W.P. No. 1656/2004, i-iecided on 25.07.2006 n, The Priyy Council, in Nazir Ahmed v. King Emperor , observed as under: "The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do acertain thing in a certain way the thing must be done in that way or not at all. Ofher methods necessarily forbidden." perfonnance

12. The Supreme Court,in Hukum Chand Shyam Lal v. Union oflndia cfe Others , observed as under: It "18. is well-settled that where a power is requiredto be exercised by a certain authority m a certainway, it should be exercised in that manner or not at all, and all other amodes ofperformance are necessarily forbidden. the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fimdamental principles ofnaturaljustice." is all It

13. A Constitution Bench ofthe Supreme Court, in Commissioner of Income Tax, Mumbai v. Anjum M.H.Ghaswala & Others , held as under: "27...Jt is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself...."

14. In Captain Sube Singh & Others v. Lt. Governor ofDelhi& Others , the Supreme Court observed as under: "29. In Anjum M.H. Ghaswala a Constitution Bench of this Court reaffinned the general mle that when a statite vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in tbis Comtectwn Dhanajaya Reddy v. State of Kamataka.) The statute in question requires the authority to act. in accordance with the roles for variation ofthe conditions attached to the permit. is not pemiissible to the State In our view, Govemmenf to purport to alter these conditions 4 AIR 1936 Privy Council 253(2) 5 (1976)25cc 128 6(2002)1SCC633 7(2004)6S''- ~ by issuing a notification under Section 67(1 )(d) read with sub-clause (;") thereof."

15. In J (fe KHotising Board & Another v. Kunwar Sanjay Krishan Kaul & Others , the Supreme Court reiterated the settled position, as aforestated and observed as under: "32. It is settled law that when any statutory provision provides a particular mauner for doing a particular act, the said thing or act must be done iu accordance with the .manner prescribed therefor m the 'Act. Merely because the parties acquisition concemed were aware of proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procediires/modes have to be strictly complied with in the manner provided therein."

16. A Constitution 'Bench of the Supreme Court, in Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Others laid down the principle ofnaturaljustice succinctly as under: 14 of in Article prejudicially equality clause the 'audi "202...Jt is npw well'settled that alteram partem' rule which in essence, enforces Constitution is applicable not only to quasi- to administrative orders judicial orders but affecting party-in-question unless the application of the mle has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules the Rule of Law and Regulations. Moreover, which permeates our Constitution demands that it to be observed both substantially and aspects procedurally. Consideriag Regulation 9(6) arbitrary, guidelines for exercise ofthe power. Rule oflaw posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, arbitrary manner leaving room for discrimination. ..." illegal and void as and without disc'riminatory capricious from all

17. The same has been explained further by the Supreme Court Central Inland Water Transport Corpn. v. Brojo Nath Ganguly , 8 (2011) 10 SCC 714 " (1991) Supp 1°°' 10(1986)3 SC v^ 'via.m "t J?^ -^ X.\<^^ Union oflndia v. Tulsiram Patel , D.K.Yadav v. J.M.A. Industries Ltd , Jaswantsingh Mathvrasingh v. Ahmedabad Municipal Corpn. , Sahara India Firm Lucknow v. Commissioner of Income Tax, Central I and another , Devdutt v:. Union of India , Joint Action Committee ofAirlines Pilots Association oflndia & Othersv. Director General ofCivilAviation.

18. Applying thewell settled prmciples oflawtothe facts ofthe case on hand, wherein the petitioner was removed &om the post of ^ Panchayat Secretary withput following the statutory procedure as prescribed under Rule 7 of th&.Rules, 1999, the impugned orders dated 13.05.2005 (Annexure A/7), 29.1.1.2004 (Annexure A/5), confimied by the orderdated 18.02.2005 (Annexure A/8) are quashed. As a sequel, the respondents are directed to reinstate the petitioner in service. However, it is made elear that the petitioner is not entitled to back wages in view ofthe serious allegations made against him aad the same wasalso admitted by the petitioner. It is open to the respondent authorities to take appropriate steps in accordance with law, ifso advised.

19. Accordingly, fhe writ petition is allowed to the extent indicated above. No order asto costs. Sd/- Satish K. Agnihbtri Judge 'imit " 12 13 14 15 16