~T •y ^<\^ \<^\s5 HIGH COURT OF CHHATTiSGARH : BILASPUR AF^ r . , WRiT PETiTION N0. 36 OF 2006 PETITIOMER Himanshu Haldar, aged about 38 years, S'o Late Kashsshwar Haidar, Panchayat Karmi, Koyagaon, Vikaskhand Koyaiibeda, Tahsi! Pankhajur, District Kanker (CG). 2. 3. State of Chhattisgarh, through its Secretary, Department of Panchayat and Gramin Vikas, Mantraiaya, D.K.S. Bhawan, Raipur (CG). Deputy Director, Panchayat Avam Samaj Sewa, Dlstrict North Bastar, Kanker (CG). Chief Executive Officer, Janpad Panchayat Koyalibeda, Tahsii Pankhajur, District North Bastar Kanker (CG). 4. Sarpanch, Gram Panchayat Koyagaon, Vikas Khand Koyalsbeda, Tahsi! Pankhajur, District Kanker (CG). 5. The Director, Panchayat, Raipur (CO). 6. Paritosh Sarkar, S/o Amuiiya Sarkar, R/o P.V.-5, Gram Panchayat, Koyagaon, Vikaskhand Koyaiibeda, Tahsli Pankhajur, DisfrictKaRker(CG). (Writ petition under Article 226/227 of the Constitution of india) Singie Bench : Hon'bte Shri Satish K. Agnihotri, «J. Mr. Raghvenctra Pradhan, counset for the patitioner. Mr. Shashank Thakur, Panel Lawyer for the State. Mr. Ravindra Agrawai, counse! for the respondent No.3. Mr. Parag Kotecha, counsel for the respondent No.4. is71.1ft By this petiiion, the petitioner seeks to chatlenge legality and vaiidity of the order dated 1-9-2004 (Annexure - P/1) passed by the respondent No.2 whereby the petitioner has bsen removed from the post of Panchayat Karmi and the petittoner also seeks to chaiienge the tegaiity and vaiidity of the order dated 16-11-2005 (Annexure - P/2) passed by the Director (Panchayat), whereby the revision fiied by the petitioner has been ciosed hoiding that ^^>s^^s 2. 3. the order dated 1-9-2004 was only interim in nature, therefore. no orders are required. The facts, in nutshell, are that initialiv fhe petitioner was aooointed as Panchayat Secretary by order dated 16-3-2004 by the respondent No.2 and thereafter by order dated 29-3-2004, the order dated 16-3-2004 has been canceited by the respondenf No.2. However, in the meeting of the Gram Panchayat, Koyagaon, resoiution datsd 20-4-2004 was passed in fevour of the petitioner. On the basis of the resolution, the Chief Executive Officer, Janpad Panchayat, Koyaiibeda made a r&commendation dated 30-4-2004 to the respondent No.2. On recommendation of ihe Chief Executive Officer, the respondent No.2 by order dated 22-7-2004 recailed the order datsd 29-3-2004 and restored the order dated 16-3-2004. Even the appointment of the petitioner has aiso been approved by the Gram Panchayat in its meeting. According to the petitioner, all of a sudden by order dated 1-9- 2004 the respondeni No.2 recailed the order dated 22-7-2034, cancelled the appolntment of the petitloner and In place of the petitioner, respondent No.6 was appointed. Being aggrieved by the order dated 1-9-2004, the petitioner preferrsd a revision bsfore the Director (Panchsyat). The Director (Panchayat) by order dated 16-11-2005 closed the revision hoidfng that the order datsd 1-9-2004 passed by the respondent No.2 is only mterim in nature and no final order has been passed, therefore, no orders are required in the revision. Thus, this petition. Learned counse! apDearina for the petitioner submits that without affording any opportunity of hearing or wrthout issuing any show cause notice fo She petitfoner, the impugned order dated 1 -9-2004 (Annexure - P/1) has been psssed by the respondent No.2 and the appointment of the petitionsr was cancelied on the post of Panchayat Secretary in spite of the fact Uiat the appointment of the petitioner has been approved by the Gram Panchayat in Bs meefing. Even the Director (Panchayat) has also passed the order dated 16-11-2005 (Annexure - P/2) without appreclating the facts and circumsfances of the case in its tetter and spirit. The aci of the respondent authorities is conSrary to the provisions of Ruie 7 of the Chhatlisgarh Panchayat Service (Discipiine and Appeal) Rules, 1999, (for short 'the Rules, 1S99'i. ^l^ a, ^s 5. The question of law invoh/ed in this case is asto whether fte petitioner, who was dectared as Panchayat Secretary can be removed from the post without complying proper procedures as laid down in Rute 7 of the Rutes, 1998, as it is not in dispute that the petitioner was removed wthout sSfordmg proper opportunity of hearing and wthout issuing any shew cause notice to him. it is weil settted principie of law as enshrined in Ruie 7 of the Ruies, 1999 that if ttie Gram Panchayat proposes to remove a Panchayat Karmi including Panchayat Secretary, ths same shall be done in accordance witfi the orocedure prescrlbed in Rute 7 of the Rules, 1999. There is no quarrei on the fact that th®Gram Panchayat, before passing the impugned iermination order has not compiied with the provisions of Rula 7 of the Rules, 1^. Th's Court, in Dhaluram Kosaria v. State cf CG and ottiers, observed as under: "19. !t Is further admitted by ati ths parti'ss that the procedure for hoiding an enquiry is prescribed under Ruie 7 of ths Rutes 19SS for Impisition of n'ajor penaity, that has not been foliowed. Hence, the termination is bad and vitiatsd on the ground of non- compliance of the statutory provisions and denia! of the principles of natura' justice. It amounts to infracMon of not oniy the provisions of Rute 7 of ths Rutes 1999 but the provisions of ArtScl® 311(2) of the Constitutionof !ndia also. The order is in fact penai in nature having civi! consequences and as such ttse eiaborate prowsion of Rute 7 of the Rutes 1998 was appiicabie in the case of the petitioner before terminating his servtees." Further, m Beegam Ram v. State of CG geKi oSjer^, this Court observed as under: "7. With regard to exereiss of power by the High Court ander Article 226 and 227 6f the Constitutson of Indi'a, the Hon'bie Supreme Court in catena of decisions have iasd down the principies of law that the High Court has y / '• 2006 (2; 03LJ 186 2 2006 LT (CG$ 41 9. jurisdiction and power to interfere if the Court is safefied that the error is manifest and apparent on the face of the proceedings, ciear ignorance and utter disregard of provisions of iaw and/or a grave injustice or gross violation of justtes has occasioned thersby. In (hs prsssnt case, Revenue Auiftorities/ Tribunais have compteteiy sgnorsd the ^atutory provisions of Rule 7 of the Rules, 19S9 and there is manjfest error of the facte on the face of record, without requlring any investjgation or enquiry. Admittedty, the aiieged show cause notice dated 27.2^000 (Annexure R/3) could not have been served through the Gudi Kotwar on 24.02.2000, three days before the issue of show causs noiice. No nottee ss contempiated under Ruie 7 of the Rutes 1999 was issued to the petitioner. Prior to submission of the enquiry report on 29.6.200) (Annexure R/5), the Gram Panchayat resolved to remove ihe peiitioner from his ssrvice on 18.05.2000 and pursuant ttiereof, order of the removal was passed on 30.05.2ixxi (Annexure P/3}" Subsequently in Raj Kumar Nsnnalkar vs. State of C. G. and others', agajn the sam® issue came up for consfderation before this Court, wherein. it was obsen/ed in frie toilowing y / terms: "2. Learned counset appearing for the petitioner subm'its that the issue asto whether a Panchayrt Karmi/Panchayat Secretary can be removed from servtees without hoiding proper enquiry as contempiated under previsions of Ruie 7 of ths Ruies, 1999 came up for consideratlOR before this Court in Dhaluram Kosana vs. State of G.G. and it was subsequentiy foliowed in cases. This ordsr attainsd as ths same has not chaijenged in any other forum." "3. A Division Bench of thjs Court i Petition No. 1656 of 2004 Naysk vs. The Stefe of Chha sgsrh and Ottiers) has held that removai of a Secretary from the post of Gram Panchyat, initlaSly appointed as Panchayat Karmi would be govemed by the proyteions of the Ru!es,1S99. Withdrawal of charge of the post of ^ WP (S) No. 3494/2CX)8 (15-4-2009) Gowri Secretary from fte patitioner, bsing Panchayat Karmi, tantaraounts to reduction in rank and since 'raduction in rank is a major penalty in terms of Rule 5(b)(iv) of the Rules, 1999, it cannot be imposed without conducting a regular departmentai enquiry as enyisaged under Ruie 7 ofthe Ruies, 1999." 10. Non-compliance of the statutory provisfons and denial of principles of natural justice tantamounts to infraction of not only the provisions of Ruie 7 of the Rules, 1999 but the provisions of Article 311 (2) of the Constitution of india aiso. The order of removal being penai in nature, visiting with eivil (evil) consequences, cannot be passed without holdlng enquiry in accordance wfth the eiaborste provisions, as prescribed in Ruls 7 ofthe Rules, 1999. 11. It is thus ciear that the resocndent authorities have nof followed the statutery provisions of law before passing the impugned order. 12. tn view of the foregoing, the petition is allcwed. The Impugned order dated 1-9-2004 (Annexure - FV1) passed by the respondent No.2 and the order dated 16-11-2005 (Annexure - P/2) passed by the Director (Panchayat), sre quashed. No order asto costs. —- Sd(- S.K. Agnihotn Judge c.Y' / i^s^SWtS^^