^ \^ ^y°i> HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 5591 of 2006 PETITIONER Ram Kumar Soni VERSUS RESPONDENTS The State ofChhattisgarh & Others. •^. Post for order on D.. March, 2008. Sd/- Satish K. Agnihotri Judge vb^ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS WRIT PETITION No. 5591 of 2006 Ram Kumar Soni, aged about 43 years, S/o Shri Mehtaruram Soni, R/o Village Balergondi, Tahsil and Distt. Rajriandgaon (C.G.) VERSUS : 1. The State of Chhattisgarh, Through Secretary, Panchayat and Rural Department, D.K.S. Bhawan, Raipur. 2. Deputy Director, Panchayat and Social Welfare, Rajnandgaon (C.G.) 3. Chief Executive OfScer, Janpad Panchayat, Churiya, Distt. Rajnandgaon. 4. Gram Panchayat, through Sarpanch, Village Balergondi, Tahsil and Distt. Rajnandgaon (C.G.) WRIT PETITON UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA Present: Shri Parag Kotecha, Advocate for the petitioner. Shri Vinay Harit, Deputy Advocate General for the State / respondent No. 1 and2. Smt. Anju Ahuja, Advocate for the respondent No. 3. Shri Abhishek Sharma, Advocate for the respondent No. 4. SB: Hon'ble Shri Satish K. Aenihotri, J. ORDER (Passed on ... .f.'7htlay ofMareh, 2008) The petitioner, by way of this petition challenges the validity of the order dated 30.06.2006 (Annexure P/3) passed by respondent No. 2 whereby the appointment of the petitioner as Panchayat Sachiv for the Gram Panchayat Balergondi, Tahsil and District Rajnandgaon, under Section 69(1) of the Panchayat Raj Adhiniyam, 1993 (hereinafter refen-ed to as 'the Act, 1993) was cancelled. Shri Parag Kotecha, leamed counsel appearing for the petitioner would submit that the appointment of the petitioner as Panchayat Secretary was cancelled without following the procedure prescribed under provisions of Rule 7 of the Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'Rules, 1999'). Shri Kotecha would farther submit that the cancellation of appointment order was passed on the ground that some enquiry at the back was conducted wherein charges were found proved. Admittedly, no show cause notice was issued and no definite charges were framed. Per contra, Shri Vinay Harit, leamed Deputy Advocate General for the State/ respondent No. 1 and 2 would submit that the petitioner was guilty of having committed serious irregularities and misappropriation of Panchayat funds. The villagers were devoid of basic facilities. Thus, on the basis of preliminary enquiry having found the above stated charges as proved, the appointment ofthe petitioner as Secretary was cancelled. On the question of compliance of procedure prescribed under section 7 ofthe Rules, 1999, the counsel is unable to make any submission. Leamed counsel appearing for respondent No. 3 would adopt the submissions made by leamed counsel appearing for the respondent No. 1 and 2. I have heard leamed counsel for the parties, peru'sed the pleadings and documents appended thereto. So far as compliance ofthe provisions ofRule 7 of Rules, 1999 is concemed, admittedly, thesame was not done. Rule 7 ofRules, 1999 prescribes as under: "7. Procedure for imposing major penalties-(l) No order, imposing on a member of the Panchayat Service, any of the penalties specified in clause (iv) to (vii) of the rule 5 shall be passed except after a formal inquiry is held as far as may be, in the manner hereinafter provided. (2) When an order for formal inquiry has been made, the disciplinary authority shall frame Definite charges on the basis of allegations and shall communicate such charges, alongwith the statement of allegations, to the member ofthe Panchayat Service and also require him to submit, within such time as may be specified a written statement ofdefence and also to state whether he desires to be herd in person. (3) The person against whom inquiry is to be held shall, for the purpose of preparing the defence, be permitted to inspect and take exto'acts from such records as he may specify: provided that such permission may be refased if, for reasons to be recorded in writing, in the opinion ofthe Enquiry Officer such records are not relevant for the purpose or it is against the public interest to allow him to access thereto, (4) On receipt of the written statement of defence or if any such statement is not received within the time specified, the disciplinary authority may himself enquire into such of the charges as are not admitted or appoint an Enquiiy Officer to hold the inquiry and forward to him his report and, if advised, his recommendation alongwith all the inquiry papers. (5) The disciplinary authority may nominate any person to present the case in support of the charges before the Enquiry Officer. The member of the Panchayat Service may present his case with the assistance of any other Panchayat Servant of State Govemment Servant approved by the Enqiury Officer but may \"'1 .o? not engage a legal practitioner for the purpose, unless fhe person nominated by the disciplinary authority as aforesaid is a legal practitioner or unless the disciplinary authority having regard to the circumstances ofthe case so pemiits. (6) Ifthe servant ofthe Panchayat Service, desires to be heard in person, he shall be so heard. Ifhe so desires or ifthe disciplinary authority so directs, an oral enquiry shall be held by the Enquiry Officer. At such inquiry evidence shall be heard as to such ofthe allegations as are not admitted and the person charged shall be entitled to cross examine the witness, to give evidence in person, to produce documentary evidence, if any, and to have such witness called as he may wish: Provided that the Enquiry Officer may, for reasons to be recorded in writing, refiise to call a witness. (7) At the conclusion of the inquiry, the Enquiry Officer shall prepare a report ofthe inquiiy, recording his findings on each of the charges together with reasons therefor. (8) The proceedings conducted against the persons charged shall contain a sufficient record of- (i) the charges framed against such person and the statement ofallegations; (ii) the written statement ofdefence ifany; (iii) the oral evidence taken in the coiirse ofthe inquiry; (iv) the documentary evidence considered in the course ofthe inquiry; (v) the orders, ifany, made by the Enquiry Of&cer or the disciplinary authority as the case may be with regard to the inquiry; (vi) a report setting out the findings on each charge and the reasons therefor. (9) The Enquiry Officer, if he is other than the disciplinary authority, shall submit the records ofthe proceedings mentioned in clause (8) above to the disciplinary authority without recommendation relating to the penalty to be imposed. The disciplinary authority shall consider the record ofthe enquiry and its fmdings on each charge, having regard to the findings on the charges and the record ofthe proceedings, ifhe is ofthe opinion that any ofthe penalties specified in clause (iv) to (vii) ofrule 5 should be imposed, it shall fumish to the person charged a copy of the report to the Enquiry Officer, and where the disciplinary authority is not the Enquiry OfBcer a statement of its fmdings together with brief reasons for disagreement, if any, with the findings ofthe Enquiry OfBcer. (10) The disciplinary authority shall consider the representation, if any, made by the person charged in response to the notice and determine fhe penalty, if any, should be imposed and shall pass appropriate order on the case. \^r (11) The orders passed by the disciplinary authority shall be communicated to the member of the Panchayat Service, who shall also be supplied with a copy of the report of the Enquiry Officer and where, disciplinary authority is not the Enquiry OfBcer, a statement ofits findings together with the briefreasons for disagreement, ifany, with the findings ofthe Enquiry Of&cer, unless they have already been supplied to the person charged." The question as to whether provisions of Rule 7 of Rules, 1999 would be applicable in case ofPanchayat Secretary who are appbinted under Section 69(1) ofthe Rules, 1999, the leamed Division Bench, by order dated 25.7.2006 passed in W.P. No. 1656/2004 (Rooplal Nayak Vs. The State of Chhattisgarh & Others) held as under: "It is trite that the impugned action of the Collector, Rajnandgaon tantamounts to reduction in rank and since 'reduction in rank' is a major penalty in term of Rule 5(b)(iv) ofthe Rules, it cannot be imposed on a member of the Panchayat Service without conducting a regular departmental enquiry as envisaged under Rule 7 of the Rules" 7. Admittedly, the respondent No. 2, before passing the impugned cancellation order, has not complied with the provisions ofRule 7 ofthe Rules, 1999. This Court in Dhaluram Kosaria Vs. State ofC.G. & Others , Beegan Ram Vs. State of C.G. & Others2, and Prakash Chand Soni Vs. State of C.G. & Others3, has held that the non compliance ofthe statutory pro^'isions and denial ofprinciples of natural justice tantamounts to mfraction of not only the provisions of Rule 7 ofthe Rules, 1999 but the provisions ofArticle 311(2) ofthe 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. 8. It is thus clear that the respondents have not followed the statutory provisions of law before passing the impugned order. 9. On the question ofback 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 that the termination order has been vitiated not on merit but on account of non-compliance of the statutory ' 2006(2)cou 186 22006LT(CG)41 32005LT(CG)151 provisions before termmating the services of the petitioner, 30% back wages would be sufficient in the interest ofjustice. 10. In view of the foregoing, this petition is allowed. The impugned order dated 30.06.2006 (Annexure P/3) is quashed. No costs. - —— - Sd/- Satish K. Agnihotri Judge Amit