ORDER
A.K. Gohil, J.
1. Petitioner, who was working on the post of Panchayat Karmi in Gram Panchayat Kota, Tehsil and District Shivpuri, has filed this writ petition under Articles 226 and 227 of the Constitution of India for the relief that by the impugned order dated 17-4-2007 (Annexure P-9), the Collector has withdrawn the power of Panchayat Secretary under Section 69 (1) of the M.P. Panchayat Raj Adhiniyam, 1993 and has further directed the Sarpanch Gram Panchayat to remove him from the post of Panchayat Karmi within one month, which is per se illegal and contrary to the principle of natural justice and beyond the powers of the Collector.
2. The case of the petitioner is that he was appointed as Panchayat Karmi vide order dated 27-10-1995 and on the recommendation of the Sarpanch, the then Collector vide order dated 6-11-1995 declared him as Panchayat Secretary and since then he is working on the aforesaid post. There was no complaint against him. The Collector Shivpuri on 16-4-2007 visited the Village Kota and because he could not make the proper arrangement for the visit of the Collector, therefore, the Collector became annoyed with the petitioner and after returning to Shivpuri issued an order dated 17-4-2007 (Annexure P-9) by which the Collector withdrawn the powers of the post of Panchayat Secretary of the petitioner without issuing any show-cause notice or giving any opportunity of hearing to him.
3. The sole submission of the learned Counsel for the petitioner is that the order has been passed without providing any opportunity of hearing. He has filed the copy of the order issued by Commissioner Panchayat and Social Welfare Department on 12-3-2003 (Annexure P-6) to all Collectors in which it has been mentioned that whenever the Collector will denotify the powers of the post of Panchayat Secretary, before issuing orders of the denotifying, an opportunity of hearing shall be provided to him. The similar directions have been issued by the State of M.P. Department of Panchayat and Social Welfare vide letter dated 22-9-2003 (Annexure P-7) to all the Collectors that whenever a person working on the post of Panchayat Secretary is denotified, the opportunity of hearing shall be provided to him before passing the order of de-notification. By another circular dated 2-4-2006, the State Government Department of Panchayat and Rural Development (Annexure P-8) has issued instructions to all the Collectors that before taking any action under Clause 7 of the Panchayat Karmi Yojna for removing him from his post, an inquiry shall be held by the Sub-Divisional Officer (Revenue) and after providing opportunity of hearing in that inquiry by SDO (Revenue) and after its finding, the action shall be taken against the Panchayat Karmi by the Panchayat.
4. Though there is no provision under Section 69 of M.P. Panchayat Raj Adhiniyam, 1993 about the following of the aforesaid procedure before denotifying a person from the post of Panchayat Secretary but certainly the instructions have been issued by the Commissioner Panchayat and Social Welfare Department as well as by the State Government; Department of Panchayat and Rural Development and Panchayat and Social Welfare which are binding on the Collectors. More so, under the hierarchy of administrative law and actions, an opportunity of hearing should be provided to an employee, before effecting the orders having civil consequences. Withdrawal of powers of Panchayat Secretary is a serious kind of action with civil consequences, therefore, in such matters action cannot be taken and powers cannot be withdrawn without hearing him.
5. In this case, admittedly, the Collector has not provided any opportunity of hearing to the petitioner before withdrawing his powers to work as a Panchayat Secretary or before denotifying and has not provided any opportunity of hearing. The directions issued by the Commissioner as well as the State Government have some logic that if a person is denotified from a particular post, an opportunity of hearing should be provided to him so that he may have say in the matter. If the order has been passed either on same complaint or on some other ground, the Secretary has right to know that for what reason action has been taken against him. Therefore, it was necessary for the Collector to follow the principle of natural justice and to issue show-cause notice and should have provided an opportunity of hearing before taking such an action.
6. It was also argued that the directions issued by the Collector to the Sarpanch Gram Panchayat that within a period of one month he be removed from the post of Panchayat Karmi and to inform him is also per se illegal. He should have only ordered for the inquiry and the Collector should not have given any direction affirmatively that to remove him within one month and to inform him. This appears to be an arbitrary exercise of powers by the Collector. Certainly as per the spirit behind the constitution of the Panchayats, under Chapter IX of the Constitution of India, Article 243G provides powers, authority and responsibilities to the Panchayat, according to which/the Panchayat is an institution of self Government for the rural areas in India and are independent bodies. Powers have been delegated to the Panchayat to appoint Panchayat Karmi/Panchayat Secretary and to have control over them. If some complaint of misconduct is found against the Panchayat Karmi/Panchayat Secretary, Collector may direct the Gram Panchayat to take suitable action against him but certainly this kind of direction that he be removed and intimation be given to him within one month should not have been passed, as it will affect the independent working of the Panchayat in taking decision independently about an employee. According to me, such directions are not only against the principles of natural justice but also contrary to instruction issued by the Department of Panchayat and Rural Development. Clause 7 of the Panchayat Karmi Yojna, which have been framed by the State Government exercising powers under Sections 69 and 70 of the Panchayat Raj Adhiniyam in the name of Governor and the same may not be having any force of law but the fair procedure laid down in the Yojna is binding on Collectors and other subordinate authorities. According to Clause 7 a Panchayat Karmi or Panchayat Secretary can only be removed after issuing show-cause notice and providing an opportunity of hearing. Now as per the Yojna Clause, the inquiry against him is required to be held by the Sub-Divisional Officer (Revenue) and it has been provided that the inquiry report shall be furnished to the Gram Panchayat and thereafter the Gram Panchayat shall take an appropriate action against him. It means that the Final Authority vest in the Panchayat in the matter of taking action against the Panchayat Karmi/Panchayat Secretary and not in the Collector. Though Section 69 of the M.P. Panchayat Raj Adhiniyam, 1993 provides that the State Government or the Prescribed Authority may appoint a Secretary for a Gram Panchayat. Therefore, the Collector being the Prescribed Authority of the Gram Panchayat may give a direction for an inquiry and for taking appropriate action against the Panchayat Karmi but such direction that he be removed within 30 days is arbitrary and should not have been passed.
7. Thus, considering the submissions and looking to the factual aspect of the matter and the legal position under the law, the order dated 17-4-2007 (Annexure P-9) is set aside and it is directed that Competent Authority/ Collector is free to take action after a show-cause notice and providing opportunity of hearing and only thereafter the order about the withdrawal or denotifying the powers of the Secretary shall be passed. So far as the other action is concerned, the Gram Panchayat may hold an enquiry on any misconduct through Sub Divisional Officer (Revenue) and after enquiry and opportunity of hearing the Gram Panchayat may take appropriate action against the petitioner.
8. With the aforesaid direction, this writ petition is finally disposed of.