rv JB"W; .:J;^\ _ ^F/? HICtti COURT OP CHHATTISCyURH AT BILAOTUR W. P. (81 No. 4973 of 2W6 Pcti.tiDD.er Respondents Aujonlas Versus The State of Chliattisgarh & othcrs Post for order os.2.8^'ebruaiy, 2008. Sd/- Satish KAgnihotri Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No. 4973 of 2006 Petitioner Versus Respondents 1. 2. 3. 4. 5. Anjordas, aged about 35 years, S/o Shri Premlal Sirmor, by Caste Satnami, R/o Village Jamri, Tahsil Dongargarh, Distt. Rajnandgaon (C.G.) The State of ChhatBsgarh, Through Secretary, Panchayat and Rurat Department, D.K.S. Bhawan, Raipur. Depuly Director Panchayat and Social Welfare, Rajnandgaon (C.G.) Chief Executive Officer, Janpad Panchayat, Dongargarh Distt. Rajnandgaon Sarpanch, Gram Panchayat Jamri, Btock Dongargarh Distt. Rajnandgaon. The Collector Rajnandgaon WRIT PETITON UNDER ARTICLE 226 AND 227 OF THE CONSTITUTiON OF INDtA SB: Hon'bte Shri Satish K. Agnihofri, J Shri Parag Kotecha, Advocate for the peSitioner. Shri U. N. S. Deo, Govt. Advocate for the respondente No.1,2 and 5. None for the respondente No. 3 and 4. ORDER (Passed on this^iS'day of February, 2008) The present petition filed uncter Articte 226/227 of the Constitution of India impugns the order dated 2.9.2006 (Annexure P/6) passed by fte respondent No.4 - Sarpanch, Gram Panchayat, Jamri, whereby the peStioner has been terminated from the post of (Sscretary) Panchayat Karmi of the Gram Panchayat Jamri, Btock - Dongargarh, District-Rajnandgaona. The indisputable facte are that ttie petitioner was appointed as Panchayat Karmi (Secretary) by order dated 16.1.1999 (Annexure P/1). The Collector, Rajnandgaon sent a communication dated 28.10.2005 (Annexure P/4) to the Chjef Executive Officer, Janpad Panchayat, Dongargarh, stating that in the iight of the report dated 13.10.20(»it is established that the petitioner had collected money for construction of dry-latrine from 21 families living below ths poverty fine and misappropriated the same. !t was directed to iodge F.I.R. against the petitioner and take necessary action for his removat from the post ofSecretary. 3. Thereafter, the petitioner rsceived a show cause notice dated 24.2.2006 (Annexure P/2), issued by the respondent No.2, stating therein that in a preliminary enquiry the atlegatjons of financial irregularities and misbehaviour wth the panchayat office bearers and villagers have been found proved. The petitionsr was calied upon to submit his reply within a period of three days asto why the appointment of the petitioner under Secfion ^(1) of the Chhattisgarh Panchayat Raj Adhiniyam, 19^, on the post of Secretary be not cancelied. 4. In compiiance of the a&ove show cause notice dated 24.2.2<X)6 the petitioner submitted his reply dated 7.3.2(N6 (Annexure P/3), denying the allegations tevelled against him. 5. In response to the memo dated 14.5.2006 issued by the Janpad Panchayat, Dongargarti and memo dated 29.4.2(X)6 issued by the Social Welfare Department, Rajnandgaon, a meeting of ttie village Panchayat as wetl as Gram Sabha was convened on 1.6.2CK36 and the resolution (Annexure P/5) was passed to remove the petetioner from the post of Panchayat Karmi and Panchayat Secretary. Consequent thereupon, the impugned order dated 2.9.2006 (Annexure P/6) was passed by the respondent No.4 - Sarpanch, Gram Panchayat, Jamri, removing the petitioner from the post of (Sscretary) Panchayat Karmi. 6. Leamed counse! appearing fcr the petitioner would submit that the petitioner v/as not informed about any kind of complaints received against him, before issuing the show cause notice dated 24.2.2QW (Annexure P/2) and the alleged enquiry conducted by the Chief Executive Officer. Likev/iss, the peStioner was not aware about the attegation of collection and 7. 8. 9. 10. misappropriatiw of money from 21 iamiliss and the alleged enquiry report dated 13.10.20)5, as is mentioned in the communication dated 28.10.2CK35 (Annexure P/4). The serious atlegations were found proved in an enquiry, in absence of the petitioner. The pstitioner was not afforded any opportunity of hearing to put forward his case before report wss submitted and thersafter before acfion was taken on the report. Granting three dsys time.Vifhen it was decided to remove the petitioner from the post of Secretary, was not sufficient and reasonabte to put forward his case on each and every allegation, which had already been fond proved before notice dated 24.2.2(X)6 (Annexure P/2) was issued bythe respondent No.2. Lsamed counsel appearing for the petitioner would further submit that Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, (for short 'tfie Rutes, 1999') prowdes for procedure before terminating senncs^ of a msmber of the Panchayat. In the instant case, the said provisions were not followed, no definite charges were framed and the petitioner was not served witt the artictes of charges before holding an enquiiy ieading to terminafion ofthe petitionerfrom his services. Learned counsel would (urther submtt that the termination order was passed on the basis of the allegaSon that the petitioner had committed irregularities and misbehaviour in performance of his duties. The order is stigmatic and remova! from service comes within the pur/iew of major penalty, the same could not have been passed without following the procedure as laid down in the provisions of faw, as prescribed in Rule 7 ofthe Rules 1999. Despite service of notice, the respondent No. 3 Chief Executive Officer, Janpad Panchayat, Dongargarh and the respondent No.4 Sarpanch, Gram Panchayat Jamri, Block Dongargarh. have chosen not to appear in the proceeding. Shri U. N. S. Deo, leamed counsel appearing for ttie respondents No. 1,2 and 5 would categorically submit that on perusat of the papers it is evident 11 12. 13. 14. that the procedure prescribed in Rule 7 of the Ruies, 1999 have not been foilowed. The petitioner was appointed on 16.1.1999 and without followlng the due process of law, the petitioner has been removed on 2.9.2<X^ on the basis of the resolution passed by the concerned Gram Panchayat and Gram Sabha, which is not sustainable in law. Admittedly, the Gram Panchayat, before passing the impugned termination order has not complied with the provislons of Rute 7 of the Rules, 1S89. This Court in Dhaluram Kosaria Vs. Staie of C.G. & ofhers , Beegan Ram Vs. State of C.G. & others2 and Prakash Chand Soni Vs. State of C.G. & othrs has heid that the non compliance of the statutory provisions and deniai of principles of natural justice tentamounte to inftaction 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 pena! in nature, wsiting with civit (evit) consequences, cannot be passed without holding the enquiry in accordance with the elaborate prowsions, as prsscribed in Rule 7 oftheRules.1999. It is thus clear that the respondents have not foltowed the statutory provisions of iaw before passing the impugned order. On the question of back wages, no foundafion has been laid to establish the fact that whether the petitioner was gainfulty employed etsewhere 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 provisions before terminating the senrices of the petitioner, %)% back wages would be sufficient in the interest of justice. In view of the foregoing, the petition is allowed. The impugned order dated 2.9.2006 (Annexure P/6) is quashed. No costs. Sd/- Satish K.Agnihotti 1. 2. 3. Thakur 2006 (2) C.G.L.J. 1861 2006 L.T. (C.G.). 412 20CBLT.(C.G.)1513 Judge