ii3 3l IN THE HIGH COURT OF JUDICATURE AT BILAPSUR fC.G. ) WRLT£ETITIQNJW_,L°.43^20Q_5 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PETITIONER: \^^? 'Cy^ Smt. Chandrawali, w/o T.R. Diwakar, aged about 32 years, r/o village Singhari, Tahsil and District Bilaspur '<- (Chhattisgarh) -^ifcs'-"- ..-^^^ ^>^^ ^^5^' VERSUS i'^>"' \v RESPONDENTS: /\. State of Chhattisgarh, through, Director Panchayat, D.K.S. , Bhawan Raipur(C.G.) /2. Sub Division Officer, Tahsil and District Bilaspur (C.G.) ^ 3. Sarpanch, Gram Panchayat Singhari,i y Tahsil and District Bilaspur (C.G.) 4. Chief Executive Officer, Director Panchayat, D.K.S. , Bhawan Raipur (C.G.) PARTICULARS OF THE PETITIONE&. /'.. y^ ^y €c^ .fl B^B!^^^^ ^^ ?*Bg?ffi3"EBSi!S®; i- a~ ^" A l^g^- ["^'1 ^ ,^ '^\^ •am Pgnehayt Stnghefi, Bistrlet Bilaspui-Cc.C-.) through It's Sarpanch, i.t A^ /-,^•c^ HIGH COURT QPCHHATTISGARHj^ILASPUR Writ Petition No. 1043 of 2005 Petitioner . Smt. Chandrawali Versus Respondents State of Chhattisgarh 85 others WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION QEINDIA (SB: Hontile Shri Satish K. Agnihotri J.) Shri Vikram Dbsit, Advocate for the petitiorifer. Shri P. K. Bhaduri, Panel Lawyer for the respondents No. 1, 2 and 4. Shri A. S. Kachwaha, Advocate for the respondents No. 3 6s 5. O^R D^E RJOraI) (Passed on this 17th day ofMarch, 2010) Heard. The present petition, filed under Article 226 of the Constitution of India impugns the order dated 22.2.2005 (Annexure P/3), passed by the Director, Panchayat, Chhattisgarh, Raipur in Revision Case No. 299/A-89/03-04 (Appeal Case No. 63/A- 89/01-02). Brief facts, in nutshell, are that by order dated 27.11.1995 the petitioner was appointed as Panchayat Karmi in Village Panchayat - Singhari, Tahsil 8s District - Bilaspur. In the meeting of the Gram Panchayat held on 10.5.2000 a proposal was made to remove the petitioner froin the post of Panchayat Karmi/Secretary and subsequently, in the meeting of the Gram Sabha held on 30.5.2000 a resolution was passed to reinove the petitioner from the post of Panchayat Karmi/Secretaiy on the - allegations that the petitioner was negligent in performance of her duties. Further, she was involved in concealment of official coramunications and embezzlement of funds. Admittedly, no b6 5. order pursuant to the resolution of the Gram Sabha dated 30.5.2000 was passed. Being aggrieved, the petitioner filed an appeal before the Sub Divisional Officer (Revenue), Bilaspur, which was dismissed by order dated 12.12.2000 (Annexure P/l). Thereafter, the petitioner filed an appeal before the Collector, Bilaspur, which was also dismissed by order dated 8.10.2001 (Annexure P/2). The petitioner filed a subsequent appeal before the Coinmissioner Bilaspur. After abolition of the office of the Commissioner, the same was transferred to the Director Panchayat, Chhattisgarh, Raipur, where the appeal was dismissed by the impugned order dated 22.2.2005 (Annexure P/5). Learned counsel appearing for the petitioner would submit that since the mandatory, statutory provisions of Rule 7 of the Rules, 1999 were not followed before removing the petitioner from th6 post of Panchayat Karmi, the resoludon of the Gram Sabha dated 30.5.2000 and the impugned order dated 22.2.2005 were illegal and bad on the ground that the petidoner was not afforded any opportunity of hearing. In support of his submissions learned counsel appearing for the petitioner placed reliance on a decision of this Court in Dhaluram Kosaria Vs. State of C.G. & others1 and Anjordas Vs. State of Chhattisgarh 8s others2. On the other hand learned counsel appearing for the respondents submit that the Gram Sabha has power to remove Panchayat Karmi/Secretaiy by its resolution and in the present ' {2006(2) C.G.L.J. 186} 2 {2008 (III) MPJR-CG 1 10} case on the proposal of the Gram Panchayat the raeedng of the Gram Sabha was convened and by resolution dated 30.5.2000 the resolution was passed to remove the petitioner from the post of Panchayat Karmi/Secretary. He further submits that Clause - 7 of the Panchayat Karmi Yojna, issued by the Panchayat and Rural Development Department vide notification dated 12th September, 1995, provides for disciplinaiy action against a Panchayat Karnii which reads as under : " 7. Sll^llRl* qirf^T^t : TEIpra ^iff TR TI?TT{ra^ Pl^"! T}1JfcT: ^fer ^rm qiii'yd w ^hr i *rfoti ^t ^STT. cb(f&4 q>T smcR, aiPi^Pidtii anf^ ^ ^?TT 4 ^s^ f^ss sf^fvww^ <t>i4<ii^1 ^i^ w srfSr^R TTPT Tr^recT ^' PTf^H ?T'^ i ^fiTpra ^fl ^it *1<"1 ^cTTSlt 'q^RT f^ uTT^ tTa(T ^Tf^ ^l^ ^nT? <3^ gTCT feTT ?t tft 'SW TR f^R ^R^ c^ <34-<|'i1 ^m if^l^tl ^5t •Hlll-^ WTT 'g'^ i? ^ ?er ^r^ft i " 6. The Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'the Rules, 19991 have been framed in exercise of powers conferred by the sub-section (1) of Section 95 read with sub-section (2) of Section 70 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 to govern the service conditions of members of Panchayat Services. There is no dispute that Panchayat Karmi is a member of the Panchayat Service. 7. Rule 5 of the Rules 1999 prescribes for nature of penalties to be imposed on a member of the Panchayat Service for good and sufficient reason. Rule 7 of the Rules, 1999 lays down the procedure imposing major penalties. There is no further dispute that the removal from service not disqualifying for future employment and dismissal from service which shall ordinarily be a disqualification for future employment, come within the 'l / definition of"major penalties". Rule 7 ofthe Rules, 1999 does not contemplate removal or dismissal of a Panchayayt Karmi by way of resolution or by any other method, except as prescribed in Rule 7 ofthe Rules, 1999. 8. A resolution of a Gram Panchayat/Gram Sabha cannot be termed as final order of removal as it is well settled principle of law that the resolution is a mere guidelines. Even, sub-rule (10) of Rule 7 of the Rules, 1999 prescribes for passing an order by the disciplinary authority on the basis of the report after considering his representation if any, made by the person charged in response to the notice. In the case on hand, since no formal order was passed, therefore, keeping the petitioner away from service on the basis of the resolution is vitiated for want of proper statutory order. Thus the petitioner continues on the same post as if he was never removed from the post of Panchayat Karmi. 9. The resolution is defined in Black's Law Dictionary (Eight Edition), as under : ° Resolution. 1. Parliamentary law. A main .'motion that formally expresses the sense, will, or action of a deliberative assembly. A resolution is a highly formal kind of main motion, often containing a preamble, and one or more resolving clauses in the form, "Resolved, That. Concurrent resolution. A resolution passed by one house and agreed to by the other. It expresses the legislature's opinion on a subject but does not have the force of law. A document containing such an expression or authorization. As per the Chambers 21st Centuiy Dictionaiy , resolution means °a formal decision, expression of opinion, etc by a group of SS>?%y?'???>i) I people, eg at a public meeting". The Shorter Oxford English Dictionary (Eleventh Edition) defines 'resolution' "a formal decision or expression of opinion by a legislative assembly, committee, public meting etc: a formulation of this". 10. Prom bare perusal of the above definition, it is clear that a 'resolution' is an expression of the opinion of the members who have come to a unanimous conclusion but the 'resolution' by itself does not have fhe force of law. In the matter of Gram Panchayat, the resolution may be, at the niost, authorization to take action against the Panchayat Karmi but, thereafter, the removal order has to be passed after following the procedure laid down in Rule 7 ofthe Rules, 1999. 11. In New India Assurance Co. Ltd. Vs. Nusli NeviIIe Wadia 8s Anr.3 while considering a resolution passed by the Governruent of India for eviction of the unauthorized occupants from the occupancy of the premises on the basis of the resolution passed by the Government, the Supreme Court obseryed that the resolution are mere guidelines and not controlled by the statutory provisions. 12. Rule 7 of the Rules, 1999 provides procedure before terminating service of a member of Panchayat. In the instant case, it is clear that the said provisions were not followed, no definite charges were framed and the petitioner was not serv-ed with the statements of charges before holding an enquiry, leading to termination of the petitioner from her services and in fact neither the show cause notice was issued nor the enquiry was held. The 3 2008 AIR SCW 208 ^-f^'^vsf •^ar^^Sji ^ .(? & " "&i ""•^kiiS^^M ''? =^~». i6V! termination was passed on the basis of certain allegations of negligent in performance of duties, involvement of the petitioner in concealment of official communication and misappropriation of funds. The impugned resolution of renioval is unsustainable. 13. It is evident that the impugned resolution for removal was passed without following the statutory and mandatory procedure of law, as prescribed under Rule 7 ofthe Rules, 1999. The procedure for holding an enquiry is enshrined in Rule 7 of the Rules, 1999 for imposition of major penalty. Hence, the removal is bad and vitiated on the ground of non-compliance of the statutory provisions and denial of the principles of natural justice. It amounts to infraction of not only the provisions of Rule 7 of the Rules, 1999 but also the provisions of Article 311(2) of the Constitution of India. The order was in fact penal in nature, having civil consequences and as such compliance of the elaborate provisions, as enshrined in Rule 7 of the Rules 1999 was mandatory in the present case. (See the case of Dhaluram Kosaria and Anjordas (supra)}. 14. Clause 7 of the Panchayat Karmi Yojna, which confers the power on Gram Panchayat in respect of Panchayat Karmi, cannot over ride the provisions of statutory rules as in Senior Superintendent of Post OfBces, Allahabad and others Vs. Izhar Hussain4 the Supreme Court observed that the memorandum is in the nature of executive instructions and the same cannot supercede the statutory rules. In State of Madhya 4 (1989)48cc 318 // ^""^, %te. •.&» Pradesh and another Vs. M/s G. S. Dall and Flour MUls5 the Supreme Court observed that "Executive instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot n-in contrary to statutory provisions or whittle down their effect." 15. For the reasons nientioned hereinabove, removal of the petitioner e?' from the post of Panchayat Karmi/Secretary by a resolution of the Gram Sabha dated 30.5.2000 has no force of law and unsustainable. Thus, the petition is allowed with all consequential benefits, as if the petitioner was never removed from the post of Panchayat Karmi/Secretary. The impugned order dated 22.2.2005 (Annexure P/3) is set aside. No order asto costs. __- ——- SatishK. Agnihotri Judge Thakur