ORDER
Rajendra Menon, J.
1. The petitioner by this petition has challenged the order (Annexure P-l), dated 6-11-2000 passed by the Chief Executive Officer, Janpad Panchayat, Kolaras, District Shivpuri, whereby services of the petitioner have been terminated.
2. It is the case of the petitioner that he was appointed as a Panchayat Karmi on 5th October, 1995 on the basis of proper selection in accordance with the statutory rules and regulations. He was thereafter designated as Panchayat Secretary and at the relevant time had been working as Panchayat Secretary. It is the case of the petitioner that in accordance with the provisions of statute conditions of services of a Panchayat Karmi have been prescribed in the scheme and Clause 7 of the aforesaid scheme contemplates the provisions with regard to administrative control of the Gram Panchayat. Departmental action in accordance with the aforesaid provision can be taken against the Panchayat Karmi only by the Gram Panchayat. No other Officer can take action against the Panchayat Karmi or Secretary in view of the aforesaid provision. It is the case of the petitioner that at the instance of Chief Executive Officer without affording any opportunity of hearing, a resolution (Annexure P-2) was passed on 14-10-2000 by which based on a letter dated 12-10-2000 issued by the Chief Executive Officer, a decision was taken to remove the petitioner from services. According to the petitioner he was not afforded any opportunity of hearing before terminating his services. The termination is contrary to the provisions of Clause 7 of the Scheme. The show-cause notice said to have been issued to him by the respondent vide Annexure R-2 dated 27-9-2000 was never served on the petitioner in accordance with the rules and action has been taken only on the basis of the letter dated 12-10-2000 which letter in spite of the direction of this Court is not being produced. It is, therefore, the case of the petitioner that the order of termination being contrary to the provisions of law, passed in violation of principles of natural justice and as action against the petitioner is taken without giving him due and proper opportunity of hearing is unsustainable.
2. Respondents have filed a reply and according to the reply it was found that the petitioner was not discharging his duties properly because of which show cause notice (Annexure R-2) was issued to him, he refused to accept the same and therefore Annexure R-2/A report of service of notice was received and on due consideration of the same, a resolution was passed to remove the petitioner from service. It is the case of the Gram Panchayat that in the present case action for removal has been taken after issuing proper show-cause notice, therefore, no interference in the matter is called for.
3. I have heard learned Counsel for the parties and perused the records.
4. Under the Scheme (Annexure P-4) provisions for taking disciplinary action is contemplated in Clause 7, the aforesaid clause provides that the entire administrative control over the Panchayat Karmi shall be with all the Gram Panchayat. In cases of dereliction of duty, misconduct or other irregularity, disciplinary action can be taken by the Panchayat. The clause further provides that a show-cause notice shall be issued to the employee concerned and after receiving his reply to the same, the Panchayat shall consider the reply and after resolution of the General Assembly of the Panchayat, the Panchayat Karmi can be removed from service. The question requiring determination in the present case is as to whether proper procedure was followed in the matter of issuing show-cause notice to the petitioner and passing of the resolution of removing him from service.
5. Respondents have filed the show-cause notice (Annexure R-2), dated 27-9-2000 and from the aforesaid it is seen that the various allegations have been levelled against the petitioner. The petitioner was therefore, entitled to have an opportunity of hearing with regard to allegations made against him in the aforesaid show-cause notice. According to the petitioner the notice was never served upon him. The respondents in the return have filed a report (Annexure R-2/A) which is signed by Kotwar and it mentions that on 2-10-2000 the petitioner refused to accept the notice. This document except for saying that the petitioner refused to receive notice is silent in so far as it relates to particulars of the notice, number, date and other particulars of show-cause notice are not mentioned in the said report. That apart, the report also does not indicate as to when, how and in whose presence the notice was tried to be served. Refusal of the same is not witnessed by any witness and even the date and time is not mentioned after signature of the person concerned.
6. Under the Panchayat Raj Adhiniyam, 1993, a statutory provisions is made for the purpose of serving notice and documents. The statutory rules are known as the Madhya Pradesh Panchayat (Method of Service of Notice and Document) Rules. Rule 3 of the aforesaid case elaborates procedure for services of notice to any person. In the present case when action was taken against the petitioner under the provisions of the Panchayat Raj Adhiniyam it was incumbent upon the respondents to serve the notice in accordance with the aforesaid statutory rules. From the records it is clear that a notice in accordance with the Rules is not served. When specific rule is provided for services of notice, notice has to be served in accordance with the aforesaid statutory provision. Service of notice in any manner contrary to the statutory rules is not permissible. That being so it has to be held that in the present case notice in accordance with the rule have not been served on the petitioner and therefore the action taken against him is without giving him due opportunity of hearing.
7. Apart from the fact that notice in accordance with the rules have not been served, a perusal of the Annexure R-2/A indicates that it can not be relied upon for the simple reasons that it lacks any material particulars for example it is not signed by any witness, time and place were not mentioned, the notice was proposed to be served and refusal was made by the petitioner is not indicated in the aforesaid notice. Accordingly, considering the notice as stated hereinabove it has to be held that in the present case action has been taken against the petitioner without serving notice on him without hearing him and therefore the action is unsustainable.
8. Apart from the above, a perusal of the resolution on the basis of which action has been taken against the petitioner goes to indicate that when the meeting was called for on 14-10-2000 it was in pursuance to letter dated 12-10-2000 issued by the Chief Executive Officer. The change was with regard to removal of petitioner from service and the resolution only indicates that it was resolved to remove the petitioner from the service. This is not in conformity with the requirement of provisions of Clause 7 of the Scheme. According to the aforesaid Clause the particulars of the show-cause notice and the reply if any submitted by the Panchayat Karmi have to be considered by the Gram Sabha and then a decision can be taken. In the present case there is nothing on record to indicate that the resolution and decision has been taken on the basis of the show-cause notice or that the same was considered in the meeting, in fact there is no reference to or mention of the show-cause notice and its refusal by the petitioner and decision being taken in view of the allegations made in the show-cause notice. On the contrary the resolution simply indicates that the decision has been taken in view of the some letter dated 12-10-2000 which was passed on the basis of which the meeting was called. This letter has not been produced for perusal of this Court even though vide order dated 6-2-2003 and 13-3-2003 respondents were directed to produce the same. Respondents have filed affidavit on 28-4-2003 signed by the Chief Executive Officer of the Janpad Panchayat and in the said affidavit it is stated that the said letter dated 12-10-2000 could not be traced and is not available in the office of the Chief Executive Officer, Janpad Panchayat, Kolaras. That being so this is a case in which action in against the petitioner has been taken by totally ignoring the provisions of law and in gross violation to the principles of natural justice, accordingly the action is unsustainable.
9. In view of the above, the petition succeed and is hereby allowed. The impugned order dated 6-11-2000 terminating the services of the petitioner on the basis of the resolution is hereby quashed. Even though this Court while issuing notice on 6-12-2000 has ordered that petitioner shall be allowed to continue if he is in services but during the course of hearing it has been indicated that the petitioner is not performing duties since 6-11-2000. That being so it is directed that the petitioner be reinstated in service. As the action of the respondents in the impugned notice is being quashed on the ground of not affording opportunity of hearing and in view of the fact that the petitioner had not discharged his duties during the aforesaid period, the period when the petitioner remained out of employment shall be treated on the basis of ‘No work no wages’ and petitioner shall be entitled to wages from the date of passing of this order.
10. Accordingly, petition is allowed to the extent indicated hereinabove.