AF* H!GH CQURT QP CHHATnSGARH AT BILASPim Writ Petition Ko. 86 of 2002 Petitioner Respondents Vimal Kumar Dwivedi Versu; State of Chhattisgarh & othcrs •K Post for order on // April, 2008 J2_ Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 86 of 2002 Petitioner Vimal Kumar Dwivedi, son of Rajendra Prasad Dwivedi, aged about 32 years, By occupation Panchayat Sachiv (Dismissed), Gram Panchayat Aader, Abujhmad (Orchha), Bastar (C.G.) Versus Respondents 1. The State of Chhattisgarh, Through: Chief Secretary, State of Chhattisgarh. 2. The Collector, Bastar, Jagdalpur 3. Gram Panchayat, Aader, Through : its Sarpanch Abujhmad (Orchha) Distt. Bastar (C.G.) 4. Sub-Divisional Officer (Revenue) Narayanpur, Distt. Bastar (C.G.) WRIT PETITON UNDER ARTICLE 2261 227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J Shri Manoj Mishra, Advocate for the petitioner. Smt. Smitha Ghai, Panel Lawyer for the respondents No. 1 , 2 and 4. None for the respondent No.3. : ORDER (Passed on this J/'&ay ofApril, 2008) 1. The present petition, filed under Article 226/227 of the Constitution of India, impugns the following orders :- (i) The order dated 12.4.1999 (Annexure P/8), passed by the Gram Panchayat, Aader, Block - Abujhmad (Orcha), District - Baster, whereby the petitioner has been removed from the post of Panchayat Karmi, Village Panchayat - Aader for having committed irregularities in the development work of the village panchayat, pursuant to the decision taken in the proceeding of the Gram Sabha; •^~s-^^\ ^7^ (ii) The order dated 29.11.2000 (Annexure P/16), passed by the Sub Divisional Officer (Revenue), Narayanpur in Revenue Case No. 1/A-99(4)/89-2000, wherebythe appeal preferred by the petitioner against the order dated 12.4.1999 was dismissed; and (iii) The order dated 17.7.2001 (Annexure P/17), passed by the Collector, Baster, District Jagdalpur in Appeal Case No. 9/A-89-A(4)/2000-2001, whereby the appeal preferred by the petitioner against the order dated 29.11.2000 wasdismissed. The grounds of challenge, raised by the petitioner in this petition are that the alleged decisionwas been taken in the meeting of the Gram Sabha behind the back of the petitioner, the petitioner was not afforded an opportunity of hearing and the services of the petitioner has been terminated from the post of Panchayat Karmi, without following the provisions ofjaw enshrined in Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short "the Rules, 1999") and the impugned order is stigmatic. The indisputable facts, in nutshell, are that the petitioner. was appointed as Panchayat Karmi in Gram Panchayat Aader vide order dated 30.7.1997 (Annexure P/1). Subsequently, the petitioner was sent for training of Panchayat Secretary from 13 to 17h October, 1997 (Annexure P/2). From 28.3.1999 to 4.4.1999 the petitioner had taken leavefor attending marriage of his sister. The petitioner left the . head 'quarter for attending the marriage but could not reach to the destination, as on the way, he was arrested by the police of Police Station Civil Lines, Bilaspur for having possessed huge amount of money. After arrest, the case diary was transferred to the Police .f''!:ss'iSa-: ^^ ' i •••:pfc;-!t "77 Station Orchha, District - Baster for further investigation, where the offence was registered at Crime No. 6/99. After getting bail in the criminal case the petitioner reported on duty on 14.4.1999. On 1.6.1999 the petitioner was orally informed that his services have been terminated. As the petitioner did not receive copy of the termination order, he made a representation to the Chief Executive Officer, Janpad Panchayat Abujhmad, District Baster, wherein a note was put-up that the petitioner may receive the order of termination from the office. After receiving the order dated 12.4.1999 (Annexure P/8), passed by the Gram Panchayat, Aader, Block - Abujhmad (Orcha), District - Baster, whereby the petitioner has been removed from the post of Panchayat Karmi, Village Panchayat - Aader for having committed irregularities in the development work of fhe village panchayat, pursuant to the decision taken in the proceeding of the Gram Sabha, the petitioner made representations dated 2.6.1999 (Annexurep/9) and 13.6.1999 (Annexure P/10). Since no decision was taken on the representations of the petitioner, he filed an appeal before the Sub Divisional Officer (Revenue), Narayanpur, which was dismissed vide order dated order dated 29.11.2000 (Annexure P/16). Being aggrieved, the petitioner preferred an appeal before the Collector, Baster, District Jagdalpur which was also dismissed by the impugned order dated 17.7.2001 (Annexure P/17). Hence, the petitioner has filed this petition. Learned counsel appearing for the petitioner would submit that the petitioner was not afforded an opportunity of hearing before passing of the order of removal of the petitioner from the post of Panchayat Karmi and no enquiry was conducted as prescribed in Rule 7 of the Rules, 1999, which provides for following substantive procedure, =• .y' s ^ '%*&—. "•^?.'5>> ^^ 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. 7. Learned counsel appearing for the petitioner would further submit that the termination order was passed on the basis of the allegation that the petitioner had committed certain irregularities in the development work of the village panchayat. Thus, 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 Rule7 of the Rules 1999. 8. Smt. Smitha Ghai, learned Panel Lawyer appearing for the respondents No. 1, 2 and 4 would categorically submit that the appointment of the petitioner was purely on temporary basis, as honourary employee (•Ml'rl'(-lql 's^f^). In lieu of services rendered by the petitioner he was only getting honourarium of Rs. 500/- p.m. Thus, the petitioner has no right to the post and therefore, the departmentalenquiry, as prescribed in Rule 7 of the Rules, 1999, was not necessary. 9. None appeared nor any representation was made on behalf of the respondent No.3 Gram Panchayat, when the matter was called for hearing. The respondent No.3 has filed preliminary objection dated 15.10.2007, supported by the affidavit of Smt. Mungli Bai, Sarpanch, Gram Panchayat, Aader, where in the resolution of the Gram Sabha dated 12.4.1999 (Annexure R-4/1) has been filed. It is apparent from the resolution that that the Gram Sabha had taken the decision to •Tin" remove the petitioner from the post of Panchayat Karmi on the basis of some news items flashed out in newspapers that the petitioner was arrested by the police with huge amount of money and that money was meant for the development work of the panchayat. 10. The petitioner was appointed on the post of Panchayat Karmi vide order dated 30.7.1997 and without following the due process of law, the petitioner has been removed on 12.4.1999, which is not sustainable in law. 11. Be that as it may, even in case of a temporary employee or honourary employees, if the order is stigmatic, as is in the present case, the proper enquiry is mandatory. This Court in Dhaluram Kosaria Vs. State of C.G. & others has held that if the termination order is stigmatic and it has been passed on the basis of certain allegations, the elaborate provisions of Rule 7 ofthe Rules, 1999 are applicable beforetermination.order is passed. 12. Admittedly, before passirig the impugned termination order the concerned authority has not complied with the provisions of Rule 7 of the Rules, 1999. This Court in the case of Dhaluram Kosaria (supra), Beegan Ram Vs. State of C.G. & others and Prakash Chand Soni Vs. State of C.G. & othrs 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 ofthe Rules.1999. 13. 14. 15. In view of the foregoing, it is clear that the order of termination of the petitioner was not a termination simpliciter but on the basis of alleged irregularities in development work of the village panchayat and the respondents have not followed the statutory provisions of law before passing the impugned order. Resultantly, the petition is allowed. The impugned orders dated 12.4.1999 (Annexure P/8), 29.11.2000 (Annexure P/16) and 17.7.2001 (Annexure P/17) are quashed. No costs. 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 the fact that the termination order was 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 ofjustice. Sd/- Satish K. Agnihotri Judge Thakur 1. 2006(2)C.G.L.J. 1861 2. 2006L.T.(C.G.).412 3. 2005 LT. (C.G.) 1513