IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 2772 of 2009. Reserved on 18.06.2011. Decided on: 05.07.2011. _____________________________________________________ Geeta Ram. …Petitioner. -Versus- State of Himachal Pradesh and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Ms. Jyotsna Rewal Dua, Advocate. For the respondents. : Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was appointed as Panchayat Sahayak in Gram Panchayat Mapur Devra on 3rd September, 2004. He joined his duties on 10th September, 2004. Thereafter, he was transferred to Gram Panchayat Dobri Salwala on 6th November, 2008. He was issued show-cause notice vide Annexure P-5 by respondent No. 3, i.e., District Panchayat Officer, District Sirmaur at Nahan on 3rd July, 2009. He was granted merely three days’ time to file reply to the same. He submitted reply on 13th July, 2009. He was terminated on 29th July, 2009 vide Annexure P-7. A corrigendum was issued on 7th August, 2009, whereby the petitioner instead of being terminated, was put under ‘suspension’ vide Annexure R-III. Thereafter, he was served with a memorandum on 17th August, 2009 and was 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - permitted to file reply within 10 days. It is in these circumstances that the petitioner has approached this Court. 2. Ms. Jyotsna Rewal Dua, learned counsel for the petitioner has vehemently argued that initiation of the proceedings against the petitioner by issuing him a show-cause notice dated 3rd July, 2009 and termination/suspension vide orders 29th July, 2009 and 7th August, 2009 is in gross violation of the rules called ‘the H.P. Panchayati Raj (Appointment and Conditions of service of Panchayat Sahayaks) Rules, 2008 (hereinafter to be referred as ‘the Rules’ in short). 3. Mr. R.P. Singh, learned Assistant Advocate General has vehemently argued that it was open to the respondent-State to take action against the petitioner for not obeying the office order dated 26.03.2009, whereby he was directed to take into his custody the stamps and stationery etc. from Shri Balbir Singh, Up-Pradhan, Gram Panchayat Dobri Salwal. He then contended that the order of termination was issued to the petitioner on 29th July, 2009, however, the same has been converted into suspension vide corrigendum dated 7th August, 2009. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The conditions of service of the petitioner are regulated under the 2008 Rules. The appointing authority of the petitioner is Panchayat Samiti as per Sub-rule (1) of Rule-8. The Executive Officer of the Panchayat Samiti is required to sign the contract agreement with the person to be appointed as - 3 - Panchayat Sahayak in Form-2. It will be apt at this stage to reproduce Sub-rule (3) of Rule-8, which reads as under:- “8.(3) The Panchayat Samiti, if it deems proper, may initiate proceedings for disengagement/removal of the Panchayat Sahayak by giving him a show cause notice of one month, if the Panchayat Samiti is not satisfied with the services of the appointee or in case the appointee is not maintaining proper discipline or has indulged in corruption, misutilization of funds or has committed a criminal offence or fails to perform the duties assigned to him or he has been guilty of misconduct in the discharge of his duties, as the case may be. 6. A plain reading of this rule makes it abundantly clear that it is for the Panchayat Samiti, being the appointing authority, to initiate proceedings for disengagement/removal of the Panchayat Sahayak by giving him a show-cause notice of one month, if the Panchayat Samiti is not satisfied with the services of the appointee or in case the appointee is not maintaining proper discipline or has indulged in corruption, mis-utilization of funds or has committed a criminal offence or fails to perform the duties assigned to him or he has been guilty of misconduct in the discharge of his duties, as the case may be. Thereafter, the matter for disengagement/removal is to be placed before the Panchayat Samiti alongwith reply, if any, of the show cause notice for consideration and decision of the Panchayat Samiti. Thereafter, the services of the Panchayat Sahayak can be terminated if the Panchayat Samiti passes a - 4 - resolution in this behalf by a majority of two-third of its total elected members. The Panchayat Sahayak can also be removed by the Executive Officer of Panchayat Samiti after giving him opportunity of being heard, if Gram Panchayat allotted to him passes a resolution with two-third majority for his removal on the grounds that he is not performing his duties properly in such Gram Panchayat. This power has been vested in the Panchayat Samiti to strengthen the democracy at the grass root level. The rules also visualizes a third situation under which the Panchayat Sahayak can be removed as per Sub-rule (5) of Rule- 8, which reads thus: “8.(5) Notwithstanding anything contained in these rules, if it comes to the notice of the Rural Development or Panchayati Raj Department that there has been gross misutilization or embezzlement of funds by the Panchayat Sahayak or he has been guilty of misconduct in the discharge of his duties or has failed to perform the duties assigned to him by the Panchayat Samiti or any authority of the above departments and in pursuance thereof, his continuance in the office of the Gram Panchayat is undesirable and the Panchayat Samiti fails to disengage his services by terminating his contract, in that event the Director of Panchayati Raj may direct the District Panchayat Officer concerned or any other officer to conduct an inquiry against such Panchayat Sahayak and the District Panchayat Officer on the basis of inquiry report, after scrutinizing the material on record and satisfying himself may issue the order for termination of contract of the Panchayat Sahayak concerned: - 5 - Provided that during the course of enquiry, the delinquent Panchayat Sahayak shall hand over all records, articles and money of the Gram Panchayat to another Panchayat Sahayak or the Secretary of Gram Panchayat, as directed by the Executive Officer Panchayat Samiti till the order of the Executive Officer Panchayat Samiti or District Panchayat Officer under sub-rule (3) or sub-rule(4), as the case may be.” 7. It is a non-obstante clause. What is stipulated in sub-rule (5) of Rule-8, is that if it comes to the notice of the Rural Development or Panchayati Raj Department that there has been gross mis-utilization or embezzlement of funds by the Panchayat Sahayak or he has been guilty of misconduct in the discharge of his duties or has failed to perform the duties assigned to him by the Panchayat Samiti or any authority of the above departments and in pursuant thereof, his continuance in the office of the Gram Panchayat is undesirable and the Pnanchayat Samiti fails to disengage his services by terminating his contract, in that event, the Director of Panchayati Raj may direct the District Panchayat Officer concerned or any other officer to conduct any inquiry against such Panchayat Sahayak and the District Panchayat Officer, on the basis of inquiry report, after scrutinizing the material on record and satisfying himself may issue the order for termination of contract of the Panchayat Sahayak. In the instant case, a show-cause notice has been issued to the petitioner by respondent No. 3 on 3rd July, 2009. He submitted the reply to the same on 13th July, 2009. Respondent No. 3 has issued the order of termination on - 6 - 29th July, 2009. The order dated 29th July, 2009 was illegal. Respondents were bound to proceed with the matter strictly as per the Rules. Initially, it is for the Panchayat Samiti to take action against the Panchayat Sahayak after issuing him a show- cause notice of one month. Thereafter, the matter is required to be placed before the Panchayat Samiti alongwith reply of the show cause notice for consideration and decision of the Panchayat Samiti and the services of Panchayat Sahayak can be terminated if the Panchayat Samiti passes a resolution by a majority of two-third of its total elected members. Similarly, under sub-rule(4) of Rule-8, an incumbent can be removed by the Executive Officer of Panchayat Samiti after giving him opportunity of being heard, if Gram Panchayat allotted to him passes a resolution with two-third majority for his removal. Sub- rule (5) of Rule-8 can only be invoked if no action is taken by the Panchayat Samiti under sub-rule(3) or sub-rule(4). Straightaway, sub-rule(5) could not be invoked in this case. Even if the action was to be taken against the petitioner for non- compliance of the order dated 26th March, 2009, it was to be taken by the Panchayat Samiti under sub-rule(3) or by the Executive Officer under sub-rule(4), failing which, the action was to be taken by the State under sub-rule(5). In the instant case, the petitioner has been terminated on 29th July, 2009, but in Annexure P-7, dated 29th July, 2009, it is stated that respondent No. 3 was authorized by the Director of Panchayati Raj on 27th July, 2009. This will not cure the initial illegality committed by the respondents. As noticed above, the notice was issued to the petitioner on 3rd July, 2009 by the District Panchayat Officer, on - 7 - which the proceedings were commenced and authorization could not be made mid way. The Court is of the considered view that the petitioner could not be terminated vide order dated 29th July, 2009. 8. Now, to over-come the difficulty faced by the respondents for non-compliance with the mandatory provisions of the rules, a new method was adopted to substitute the word “termination” by word “suspension” on 7th August, 2009. The Court is of the considered view that it will not cure the illegality committed by the respondents. The same mistake has been repeated by the District Panchayat Officer by issuing a show- cause notice to the petitioner on 17th August, 2009, whereby he was granted 10 days’ time to file reply. This exercise could also not be followed by the respondent No. 3 for the simple reason that sub-rule(5) could only be invoked if sub-rule(3) and sub- rule(4) had already been invoked and no action has been taken by the Panchayat Samiti. Sub-rule(5) of Rule-8 can only be invoked if the Panchayat Samiti fails to disengage the services of Panchayat Sahayak by terminating his contract. In that event, the Director of Panchayati Raj may direct the District Panchayat Officer concerned or any other officer to conduct an inquiry against such Panchayat Sahayak. Thereafter, on receipt of the inquiry report, the District Panchayat Officer can take action. The initiation of the proceedings against the petitioner on 3rd July, 2009 was fraught with legal malafides. Petitioner has been granted only three days’ time to file reply to the show-cause notice. Respondent-State has not led any tangible evidence on record to establish that the petitioner has ever received a copy of - 8 - the letter dated 26.03.2009. It has also come on the record that the Inspector has only verbally told the petitioner, as per his statement dated 24.06.2009 to take into his custody the stamps and stationery etc. alongwith Panchayat record from Shri Balbir Singh, Up-Pradhan, Gram Panchayat Dobri Salwal. The authorization dated 27th July, 2009 also looses its significance in view of the observations and discussions made hereinabove. The authorization could only be if the Panchayat Samiti has failed to take action under sub-rule(3) or sub-rule(4) of Rule-8. 9. Mr. R.P. Singh, learned Assistant Advocate General has also argued that there is a provision to file an appeal under Rule-9. The Court is of the considered view that since the proceedings initiated against the petitioner are without jurisdiction and there is violation of the principles of natural justice, the present petition is maintainable and the objection raised by Mr. R.P. Singh, learned Assistant Advocate General is liable to be rejected. 10. Their Lordships of the Hon’ble Supreme Court in Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai and others (1998) 8 Supreme Court Cases-1 have held that the writ petition is maintainable in the following events, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. Their Lordships have held as under: - 9 - “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” 11. In the instant case also, the proceedings initiated against the petitioner are wholly without jurisdiction. Thus, the petition is maintainable. 12. Consequently, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure P-7, dated 29.07.2009, corrigendum dated 07.08.2009 and - 10 - memorandum dated 17.08.2009 are quashed and set aside. The petitioner is held entitled to costs, which are quantified at `10,000/-. (Rajiv Sharma) Judge July 05, 2011. (bhupender) - 11 - `