IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.02.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.Nos.21717 and 26077 of 2004 R.Palanivel ... Petitioner in both W.Ps. vs. 1. The Commissioner, Gingee Panchayat Union, Gingee, Villupuram District. 2. N.Anjalai, President, Kengavaram Panchayat, Kanakankuppam Post, Gingee Taluk, Villupuram District. ... Respondents in both WPs. Prayer in W.P.No.21717 of 2004: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus directing the respondents to regularise the services of the petitioner with all monetary benefits. Prayer in W.P.No.26077 of 2004: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records relating to the proceedings in Na.Ka.No.1/2004, dated 24.08.2004, passed by the second respondent to reinstate the petitioner in service with full backwages, continuity of service and all other consequential benefits. For Petitioner : Mr.K.Vasudevan For Respondents : Mr.V.Subbarayan O R D E R In W.P.No.21717 of 2004, the petitioner has sought for a Writ of Mandamus directing the respondents to regularise his services with all monetary benefits and for further orders. 2. In W.P.No.26077 of 2004, the petitioner has sought for a Writ of Certiorari to quash the order, dated 24.08.2004 of the second respondent and direct the second respondent to reinstate him in the service with full backwages, continuity of service and all other consequential benefits. 3. As both the Writ Petitions relate to the same parties and the pleadings are almost similar, they are taken up together and disposed of by a common order. 4. In W.P.No.21717 of 2004, it is the case of the petitioner that though he had served in the second respondent's Village Panchayat for more than 240 days, his services were not regularised. Therefore, he made representation on 28.06.2003, requesting the respondents to regularise his services. Since the respondents have not taken any action on the representation for regularisation, the petitioner has come forward with this Writ petition, contending inter alia that he was doing identical work with that of a permanent employee and therefore, he is entitled for regularisation from the date of his entry into service. The petitioner has further contended that there is a need for the post of Panchayat clerk as full-time employee and that the respondents have failed to consider that he has been serving in the department for more than three years without any adverse remarks. 5. During the pendency of this Writ Petition, the petitioner was served with a show cause notice dated 12.08.2004, alleging certain irregularities. The petitioner has submitted his explanation on 16.08.2004 rebutting the allegations made in the notice. After receiving the explanation, the second respondent has straight away passed an order of termination without conducting an enquiry. The said order is challenged in W.P.No.20677 of 2004. 6. The second respondent in his counter affidavit has submitted that she was elected as a President in October 2001 and the petitioner was an Assistant working in her Panchayat to carry out the directions issued by her in the administration of Kangavaram Panchyat, Gingee Taluk, Villupuram District. The second respondent has further submitted that the petitioner was not appointed as a part-time clerk on 10.02.2001 in her Panchayat, as per the procedure contemplated under the Tamil Nadu Panchyat Act and the Rules framed thereunder. He was not sponsored by the Employment Exchange and no committee was constituted by the predecessor of the second respondent to select the petitioner to the said post and therefore, the appointment of the petitioner as part-time Panchayat Assistant on 10.02.2001 itself is not valid. 7. It is the further case of the second respondent that when a servant is appointed in the Panchayat, there will be a service registrar maintained for the purpose. The petitioner has failed to maintain the records properly and therefore, a show cause notice, dated 12.08.2004 was issued to the petitioner for certain irregularities, such as, collection of professional tax and house tax, non-maintaining of the service records of the "Village Panchayat servants, attendance register, important Register Nos.17,18,21 and Stock Register etc. The petitioner has failed to pay the subscription towards Group Insurance Scheme, attend the Weekly Meeting conducted on every Tuesday and also failed to submit the monthly reports to the Block Development Officer. That apart, the petitioner has withdrawn a sum of Rs.9,250/- by way of Cheque No.445124 and out of which, he has misappropriated a sum of Rs.5,750/-. Though the petitioner has collected professional tax of Rs.1000/- on 28.08.2000, he had remitted the same only on 11.10.2000. As per the procedure, any amount collected by the Village Panchayat Assistant must be deposited with the bank on the very next day in the Panchyat account. Failure to pay the professional tax in time lead to an imposition of fine of Rs.100/- by the Deputy Block Development Officer and the same was also paid by the petitioner. 8. The second respondent has further submitted that the explanation of the petitioner was thoroughly considered and as per Section 106 of the Tamil Nadu Panchayat Act, 1992, as the council is empowered to take appropriate decision in respect of appointment and removal of person from the Panchayat, the show cause notice, explanation, audit objection and other records in respect of the irregularities committed by the petitioner and the details of misappropriation of the Panchayat amount of Rs.5,750/- along with the second respondent's remarks were submitted before the Council for its decision. The Council has also passed a resolution No.98, on 23.08.2004, terminating the services of the petitioner. The impugned order of termination is based on the resolution of the Council and it is valid in law. 9. The respondent has further submitted that the petitioner has been given due and proper opportunity to rebut the allegations levelled in the show cause notice and therefore, there is no need to conduct any detailed enquiry. As the appointment of the petitioner is not in accordance with the Rules, the ultimate decision taken by the Council and carried out by the President is in conformity with the statutory provision. It is also the case of the second respondent that as the petitioner has not been properly appointed through the Panchayat, he is not entitled for regularisation. Hence the respondent has prayed for dismissal of both the Writ petitions. 10. Placing reliance on the decision of this Court in B.Adhikesavelu v. The District Collector, Thiruvallur reported in 2004 (2) LW 577, Mr.Vasudevan, learned counsel for the petitioner submitted that before terminating the petitioner, the respondents have not conducted any enquiry into the charges and therefore, there is a violation of principles of natural justice. He further submitted that had the petitioner been given an opportunity, he would have satisfied that the authorities that the charges levelled against him are false and not based on acceptable evidence. 11. Per contra, Mr.P.Subburayan, learned counsel appearing for the second respondent, referring to the explanation offered by the petitioner, submitted that the petitioner has already admitted certain charges of not maintaining the records in the Panchayat and therefore, there is no need to conduct a regular departmental enquiry. He further submitted that the petitioner was found to have misappropriated a sum of Rs.5,750/- from out of Panchayat fund, drawn by way of cheque and also temporarily misappropriated a sum of Rs.1,000/- collected on 28.08.2000, towards professional tax. He further submitted that the said amount was belatedly paid on 11.10.2000 and for the failure to pay the provisional tax in time, the petitioner was imposed a fine of Rs.100/- by the Deputy Block Development Officer, which was paid by the petitioner. 12. Learned counsel for the respondents further submitted that as per Section 106 of the Tamil Nadu Panchayat Act, 1992, the council is empowered to take appropriate decision in respect of appointment and removal of any person and since the petitioner was not appointed in accordance with the Rules, the show cause notice, explanation and other records were submitted before the Council and after discussion, a resolution was passed to terminate the service of the petitioner. He further submitted that a person who has indulged in the acts of misappropriation, is not entitled to be retained in service. He further submitted that the petitioner has not maintained the registers properly and that he was not regular to the Office. 13. As regards the submissions of the petitioner on the judgment in 2004 (2) LW 577, learned counsel for the respondents submitted that in the above reported case, the service of the part-time clerk was terminated, by passing a resolution without providing any show cause notice, whereas, in the case on hand, on the basis of the resolution passed by the Panchayat, a show cause notice was issued containing the charges and only after considering his explanation, a resolution was passed by the Council to terminate the service of the petitioner. Therefore, he submitted that the above reported decision relied on the learned counsel for the petitioner is not applicable to the facts of this case. Heard the counsel appearing for the parties and perused the materials available on record. 14. Before adverting to the facts of the case, it is relevant to extract Sections 83 and 84 of the Tamil Nadu Panchayats Act, 1994. "83. Executive authority of village panchayat:- The Government may, by notification, appoint any person, who shall, subject to such rules as may be prescribed, exercise the powers and perform the functions of the executive authority of a village panchayat. 84. Functions of executive authority:- The executive authority shall,- (a) carry into effect the resolutions of the village panchayat: Provided that where the executive authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that, if carried out, it is likely to endager human life or health or the public safety, the executive authority shall refer the matter to the Government for orders and their decision shall be final; (b) control all the officers and servants of the village panchayat; (c) discharge all the duties specifically imposed and exercise all the powers conferred on the executive authority and subject to all restrictions and conditions imposed, by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due filfilment of the purposes thereof." 15. Admittedly, the petitioner is a part-time employee of the panchayat and no detailed enquiry has been conducted in respect of charges levelled against the petitioner. In a recent decision in G.Rangarasu v. President, Vaithur Panchayat, Pudukottai, reported in 2007 (7) MLJ 450 (Mad.), a learned Single Judge of this Court considered a case of termination of a part time writer working in a Panchyat. In the reported case, mishandling of public funds by the President was reported to the higher officials by the said part-time writer and therefore, a show cause notice was issued to the said part-time writer by the President for certain irregularities. On receipt of the explanation, the employee was terminated from service. While testing the correctness of the order, this Court, at Paragraph 7 of the judgment, held as follows: "Therefore, in the absence of any material to show that the procedure contemplated under the Tamil Nadu Panchayats Act or any other rule has been followed before terminating the petitioner from service, there is no other option except to set aside the order of the respondent." 16. The impugned order does not indicate the basis on which the allegations were said to have been proved. Whereas, it proceeds on the basis that the explanations offered by the petitioner, are false and without any basis. Though the respondent in their counter affidavit has contended that the appointment of the petitioner is not in accordance with the procedure and that he was not sponsored by the employment exchange, it is not the ground for termination and therefore, it is not open to the respondents to gain support from the counter affidavit. It is settled law that the impugned order has to stand or fall, for the reasons contained therein and that the respondents cannot improve their case by the averments in the counter affidavit. The petitioner was a part-time employee. Serious charges of misappropriation has been levelled against the petitioner and that he cannot be simply be terminated without holding a regular departmental enquiry. Termination on the grounds of misappropriation certainly casts a stigma. When an employee has denied the charges by way of explanation, the authorities have no other alternative, except to conduct a detailed enquiry and give sufficient opportunity to the employee. When statute contemplates a procedure for termination of an employee, part-time employees are also entitled to the protection under Article 311(2) of the Constitution of India and that the procedure contemplated under the Tamil Nadu Panchayat Act or any other Rule has to be followed. Therefore, I am of the view that the impugned order passed in violation of the principles of natural justice, warrants interference. Accordingly the impugned order of termination is set aside and the matter is remitted back to the second S. MANIKUMAR, J. skm respondent to conduct an enquiry into the charges, after giving sufficient opportunity to the petitioner. However, in respect of regularisation is concerned, it depends upon the decision in the disciplinary proceedings. 17. In the result, W.P.No.21717 of 2004 filed for regularisation is dismissed. W.P.No.20677 of 2004 filed against the termination order is allowed to the limited extent as indicated above. No costs. 22.02.2008 skm To The Commissioner, Gingee Panchayat Union, Gingee, Villupuram District. W.P.No.21717 and 26077 of 2004 The Constitution Bench of the Supreme Court in State of Assam v. Kanak Chandra Dutta reported in AIR 1967 SC 884, has observed as follows: "9. The question is whether a Mauzadar is a person holding a civil post under the State within Article 311 of the Constitution. There is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art.310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State, seen marginal note to Article 311. In Art. 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State - see the marginal notes to Arts.309, 310 and 311. The heading and the sub-heading of Part XIV and Chapter I emphasize the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. 10. In the context of Arts. 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds "Office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution - see Art.310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. 11. Judge in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue Officers and ex officio Assistant Settlement Officers." 16. Following the judgment of the Supreme Court, the Kerala High Court in K.Ramachandran v. State of Kerala reported in 1982 (3) SLR 643, at Paragraph No.6, held as follows: "Articles 310 and 311 of the Constitution refer to civil service of the Union and civil service of a State and cases have laid down the nature of the service that would constitute civil service. The State of Assam v. Kanak Chandra Dutta, AIR 1967 SC 884, was concerned with the nature of the post held by a revenue functionary designated Mauzadar in Assam Valley. After examining the nature of his service and functions, the Supreme Court held, agreeing with the High Court that the respondent filled a civil post and was entitled to the protection of Article 311(2). The Supreme Court held that this was so notwithstanding that the post was remunerated by way of commission on collections of Government dues or (what is more relevant) that he was not a wholetime employee, observing that a post outside the regularly constituted service may be a part-time employment or that the conditions of service of a Mausadar enable him to engage in other activities. This is sufficient authority for the view expressed earlier that the petitioner's part-time service was also civil service." 17. In State of U.P., v. Chandra Prakash Pandey reported in AIR 2001 SC 1298, the Supreme Court considered a case as to whether Kurk Amins appointed on commission basis by different District Magistrates/Collectors within the State of Uttar Pradesh for realisation of outstanding dues of the various co-operative societies, as arrears of land revenue can be treated to be employees of the State Government holding civil post under State of Uttar Pradesh, within the meaning of Article 311 of the Constitution of India. Before the Supreme Court, the State contended that Kurk Amins appointed for realisation of outstanding dues of Co-operative Societies could not have been treated to be Government Servants and the High Court was not justified in holding that they held civil posts under the State of Uttar Pradesh as the Kurk Amins were appointed under the scheme framed by the Registrar of Co-operative Societies for recovery of outstanding dues of the Co-operative Societies. At Paragraph 10 and 11, the Supreme Court held as follows: "10. The question as to when a person can be said to be holder of civil post has been subject matter of consideration before this Court on numerous occasions. In the case of State of Assam v. Shri Kanak Chandra Dutta, (1967) 1 SCR 679:(AIR 1967 SC 884), a Constitution Bench of this Court was considering a case where a Mauzadar as appointed for collection of land revenue under the Mauzadari System prevailing in the Assam Valley whose primary duty was to collect land revenue and other Government revenues. He was working as Revenue officer and ex-officio Assistant Settlement Officer exercising delegated powers of the Government and the State had the power and right to select and appoint him inasmuch as power to suspend and dismiss. The Mauzadar was drawing not a regular salary but commission by way of a remuneration. The Court observed that there must be existence of relationship of master and servant between the State and its employees and such a relationship can be established by presence of all or some of the ingredients. After due consideration of the entire matter, the Court laid down the law as follows (Paras 11, 12.8, 13 of AIR):- "Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue Officers and ex officio Assistant Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a Civil Post under the State. Counsel for the State stressed the fact normally a Mauzadar does not draw a salary. But a post outside the regularly constituted services need not necessarily carry "a definite rate of pay". The post of a Mauzadar carries with it a remuneration by way of a commission on collections of Government dues. Counsel stressed the fact that a Mauzadar is not a whole-time employee. But a post outside the regularly constituted services may be a part-time employment. The conditions of service of a Mauzadar enable him to engage in other activities. In Venkata Swamy v. Superintendent of Post Offices, AIR 1957 Orissa 112, the Orissa High Court held, on a consideration of the relevant conditions of employment, that a temporary extra- departmental post-master was not a person holding a Civil post, but the observation in that case that a part-time employee cannot be the holder of a Civil post outside the regularly constituted services is too wide and cannot be supported." 11. In the case of Superintendent of Post Offices etc., etc., v. P.K.Rajamma etc., etc.,(1977) 3 SCR 678 : (AIR 1977 SC 1677: 1977 Lab.IC 908), this Court was considering the case whether extra departmental agent held a civil post and for his dismissal or removal the provision of Article 311(2) of the Constitution was applicable. The Court laid down that an extra-departmental agent held a civil post and his dismissal or removal would be invalid if there