HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition (S) No. 4973 of 2006
Anjordas
...Petitioners
Versus
1. The State of Chhattisgarh
2. Deputy Director Panchayat
and Social Welfare
3. Chief Executive Officer
4. Sarpanch
5. The Collector Rajnandgaon
...Respondents
! Shri Parag Kotecha
^ Shri U. N. S. Deo
Hon'ble Shri Satish K. Agnihotri, J
Dated:28/02/2008
: Judgment
O R D E R
(Passed on this 28th day of February, 2008)
1. The present petition filed under Article 226/227 of the
Constitution of India impugns the order dated 2.9.2006
(Annexure P/6) passed by the respondent No.4 – Sarpanch,
Gram Panchayat, Jamri, whereby the petitioner has been
terminated from the post of (Secretary) Panchayat Karmi of
the Gram Panchayat Jamri, Block – Dongargarh, District –
Rajnandgaona.
2. The indisputable facts are that the petitioner was
appointed as Panchayat Karmi (Secretary) by order dated
16.1.1999 (Annexure P/1). The Collector, Rajnandgaon sent a
communication dated 28.10.2005 (Annexure P/4) to the Chief
Executive Officer, Janpad Panchayat, Dongargarh, stating
that in the light of the report dated 13.10.2005 it is
established that the petitioner had collected money for
construction of dry-latrine from 21 families living below
the poverty line and misappropriated the same. It was
directed to lodge F.I.R. against the petitioner and take
necessary action for his removal from the post of Secretary.
3. Thereafter, the petitioner received a show cause notice
dated 24.2.2006 (Annexure P/2), issued by the respondent
No.2, stating therein that in a preliminary enquiry the
allegations of financial irregularities and misbehaviour
with the panchayat office bearers and villagers have been
found proved. The petitioner was called upon to submit his
reply within a period of three days asto why the appointment
of the petitioner under Section 69(1) of the Chhattisgarh
Panchayat Raj Adhiniyam, 1993, on the post of Secretary be
not cancelled.
4. In compliance of the above show cause notice dated
24.2.2006 the petitioner submitted his reply dated 7.3.2006
(Annexure P/3), denying the allegations levelled against
him.
5. In response to the memo dated 14.5.2006 issued by the
Janpad Panchayat, Dongargarh and memo dated 29.4.2006 issued
by the Social Welfare Department, Rajnandgaon, a meeting of
the village Panchayat as well as Gram Sabha was convened on
1.6.2006 and the resolution (Annexure P/5) was passed to
remove the petitioner from the post of Panchayat Karmi and
Panchayat Secretary. Consequent thereupon, the impugned
order dated 2.9.2006 (Annexure P/6) was passed by the
respondent No.4 – Sarpanch, Gram Panchayat, Jamri, removing
the petitioner from the post of (Secretary) Panchayat Karmi.
6. Learned counsel appearing for the petitioner would
submit that the petitioner was not informed about any kind
of complaints received against him, before issuing the show
cause notice dated 24.2.2006 (Annexure P/2) and the alleged
enquiry conducted by the Chief Executive Officer. Likewise,
the petitioner was not aware about the allegation of
collection and misappropriation of money from 21 families
and the alleged enquiry report dated 13.10.2005, as is
mentioned in the communication dated 28.10.2005 (Annexure
P/4). The serious allegations were found proved in an
enquiry, in absence of the petitioner. The petitioner was
not afforded any opportunity of hearing to put forward his
case before report was submitted and thereafter before
action was taken on the report. Granting three days time,
when it was decided to remove the petitioner from the post
of Secretary, was not sufficient and reasonable to put
forward his case on each and every allegation, which had
already been fond proved before notice dated 24.2.2006
(Annexure P/2) was issued by the respondent No.2.
7. Learned counsel appearing for the petitioner would
further submit that Rule 7 of the Chhattisgarh Panchayat
Service (Discipline and Appeal) Rules, 1999 (for short
`the Rules, 1999′) provides for procedure before terminating
service of a member of the Panchayat. In the instant case,
the said provisions were not followed, no definite charges
were framed and the petitioner was not served with the
articles of charges before holding an enquiry leading to
termination of the petitioner from his services.
8. Learned counsel would further submit that the
termination order was passed on the basis of the allegation
that the petitioner had committed irregularities and
misbehaviour in performance of his duties. The order is
stigmatic and removal from service comes within the purview
of major penalty, the same could not have been passed
without following the procedure as laid down in the
provisions of law, as prescribed in Rule 7 of the Rules
1999.
9. Despite service of notice, the respondent No. 3 Chief
Executive Officer, Janpad Panchayat, Dongargarh and the
respondent No.4 Sarpanch, Gram Panchayat Jamri, Block
Dongargarh, have chosen not to appear in the proceeding.
10. Shri U. N. S. Deo, learned counsel appearing for the
respondents No. 1, 2 and 5 would categorically submit that
on perusal of the papers it is evident that the procedure
prescribed in Rule 7 of the Rules, 1999 have not been
followed. The petitioner was appointed on 16.1.1999 and
without following the due process of law, the petitioner has
been removed on 2.9.2006 on the basis of the resolution
passed by the concerned Gram Panchayat and Gram Sabha, which
is not sustainable in law.
11. Admittedly, the Gram Panchayat, before passing the
impugned termination order has not complied with the
provisions of Rule 7 of the Rules, 1999. This Court in
Dhaluram Kosaria Vs. State of C.G. & others1, Beegan Ram Vs.
State of C.G. & others2 and Prakash Chand Soni Vs. State of
C.G. & othrs3 has held that the non compliance of the
statutory provisions and denial of principles of natural
justice tantamounts to infraction of not only the provisions
of Rule 7 of the Rules, 1999 but the provisions of Article
311 (2) of the Constitution of India also. The order of
removal being penal in nature, visiting with civil (evil)
consequences, cannot be passed without holding the enquiry
in accordance with the elaborate provisions, as prescribed
in Rule 7 of the Rules,1999.
12. It is thus clear that the respondents have not followed
the statutory provisions of law before passing the impugned
order.
13. On the question of back wages, no foundation has been
laid to establish the fact that whether the petitioner was
gainfully employed elsewhere or not during this period. Even
otherwise, keeping in view that the termination order has
been vitiated not on merit but on account of non-compliance
of the statutory provisions before terminating the services
of the petitioner, 30% back wages would be sufficient in the
interest of justice.
14. In view of the foregoing, the petition is allowed. The
impugned order dated 2.9.2006 (Annexure P/6) is quashed. No
costs.
JUDGE