J,^ IN THE HIGH COURT OFCHHATTISGARH AT^jLASPUR W.P.NO. £-3^ I 2003 PETITIONER: - RESPONDENTS: - ^ ^y .<<^^ ^l^y-'"" ^ {,?>"' ^c^- )^?y '•''^'^y 'rakash Chandra Patel, S/o Shri Makradhwaj Patel, Gram Panchayat Chuchumada, Vikas Khand Dabhra, District Janjgir- Champa, (C.G.). V/s ,^—-1.State of Chhattisgarh through the Secretary Panchayat Avem Gramin Vikas Vibhag, D.K.S.Bhawan Raipur, (C.G.). iL-^ 2. The Collector, District Janj'gir-Champa (C.G.). 3. Sub Divisional Officer (Revenue) Dabhra, District Janjgir-Champa, (C.G.). n-c ^ .4. Janpad Panchayat, Dabhra Through the Chief Executive Officer, District Janjgir-Champa , (C.G.). J^ 5. Gram Panchayat Chhuchhubhata, Through The Sarpanch, Janpad Panchayat, Dabhra, District Janjgir-Champa, (C.G.). ^ 6. Gram Sabha Chhuchhubhata, Through the Secretary, Janpad Panchayat, Dabhra, District Janjgir- Champa, (C.G.). i.SS^nBB^^Rg 4^ ^^r^^"-9-^1.' ' ' ^11—f^^^''~ ^:Wsi'^S^ ^i^^:^^%;ih?®H??^ WRITPETITION^ UNDER ARTIC CONSTITUTION OF INDIA FOR ISSUE OF AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS / CERTIORARI ETC. OR DIRECTION / ORDER IN THE LIKE NATURE ETC. itess-: ittN^s H16H CGURT OF JUMCAWRE AT BILASPUR- CHHATTIS6ARH Writ Petition_No.594 of 2003 Prakash Chendra Patel Versus State of Chhatt-isgarh & Others POSTFOR ORDER ON 1^ MARCH. 2004 LC.Bhadoo Judge B •II,! Bililii'i Biffi;:-: lij^' K£ u; Bl Bls i : —ffWiis'.ma., s? HI6H COURT OF JUDICATURE AT BILASPUR tWHATTLSSAKm Sinale Bench*; Hon'bte Shri L.C. Bhadoo J. Writ Petition No.594 of 2003 Prakash Chandra Patet Versus State of Chhattisgarh & Others ^esent: .shri Rajesh Pandey, counsel for the petitioner. Shri Satish Supta, Deputy ©ovt.Advocate for respondents 1 to 3. Shri Ranbir Singh, counsei for respondent No.4. ihri Rajeev Shrivostava, counsei for respondent No.5. OR &ER (Passed on _Z^+_isAarch 2004) undii- TTie petitioner has preferred this writ petition under Article Articles 226/227 of "1+ie Constitution of India challenging the order 29-1-2003 whereby the services of the petitioner were terminated the post of Panchayat Karmi. (2) The petitioner's cxs.se. is that he was appointed as Pcmchcyat Karmi on 15-12-1995 by fne 6ram Ponchayat Chhuchhubhata and since Ihen he is working on the post of Ponchayat Karmi. On 4-11-2002, the Sarpanch of Gram Pcinchayat Chhuchhubhata called his explanation regarding disc.harge of duties. The petitioner submitted his reply on 6-11-2002 which is Annexure-p/3. Thereafter the Sarpanch again called for further expianation vide Annexure-P/4 from the petitioner. on the ground that the explanation offered by him is not ciear and truthful to which the petitioner repiied on 8-11-2002 vide Annexure-P/5. In the meeting dated 8-11-2002 Panch of village Panchayat namely, Vijay Lal snatched the Panchayat Karyawqh^Register t^d^ from the petitioner at the instance of Sarpanch. Against which the petitioner made compiaint to respondent No.4 on 11-11-2002 against Sarpanch ond Panchas as per Annexure-P/6. Again the meeting of the Panchayat was held on 14-11-2002 in which the Sarpanch along with Padmatochan, Vidyadhar, Chcuidan Singh, Bhagwat and Jitram had taken forcibly 6ram Sabha Register aid Sram Sabha Upasthiti Panji from the petitioner, against which the petitioner made comploint on 15-11-2002 to respondent No.2 and to the police Stction Dabhra on 16-11-2002. Copy of the same is Annexure-P/7. (3) On 25-11-2002, the petitioner was served 18-11-2002 issued by respondent No.4 for making an enquiry against fne petitioner regarding complaint in six points. Copy of the notice is Annexure- P/8. But, no charge sheet was served upon the petitioner upon which the enquiry was proposed to be conducted. Respondent No.4 recorded the statement of Sarpanch and Panchayat and thereafter the petitioner was called upon to exptain on 15-1-2003 vide Annexure-P/9 of which the petitioner submitted his rep!y on 23-1-2003. A panchayat meeting was cailed on 27-1-2003 ond the petitioner was cailed witti all the records. Copy of those pa?, Aayat meeting is Annexure-P/ll. On 28-1-2003 to remove the petitioner in the post of Panchayat Karmi a Gram Sabhu meeting was convened against which the petitioner moved the Sub Oivisional Officer ond the 5.t5.0. jranted stay. But, in spite of that the respondents removed the petitioner by meeting dated 28-1-2003. (4) The further case of- the petitioner is that respondents removed the petitioner without following the procedure prescribed in Panchayat Service (Discipline and Appesl) Rules, 1999 (herein after referred to as "the RuSes, 1999). The disciplinary authority was required to fol!ow the Rule-7 of the said Rules for imposing major penalty. But, that was not adopted and the services of the petitioner were terminated in arbitrary and discriminatory monner without following the procedure. ^- — — Bl,;!li>B -ssssSS (5) On the other hand. return has been filed on behalf of respondent No.5, Sarpanch of the village in which respondent No.5 denied the allegations of the petitioner and it is alleged that the petitioner had interpolated the Gram Sabha register ond, therefore, on the basis of the irregutarities committed by the petitioner. a request was made by the iarpanch and all the Panchas of 6ram Panchayat Chhuchhubhata to the Chief Executive Officer, Janpad Ponchayat, Dabra to conduct an enquir^ against the petitioner. Tne said request was submitted to the Chief Executive Officer, Jonpad Panchayat, Dabra on 11-11-2002 vide Annexure-R/5/4. Apart from making interpolation in the minutes of the Gram Pcuichayat record, there were complaints against the petitioner that he was not performing his duties and distributing the pension to the claimcuits. In this regard, a complaint was made by the villagers and in the enquiry the stutements of the villagers were recorded by the Chief Executive Officer, Janpad Panchayat, Dabra and report was submitted vide Annexure-R/5/7. On the basis of that explanation of tiie petitioner was called on 15-1-2003. The copy of the same was received by the petitioner on 17-1-2003. T (6) On 27-1-2003 a meeting of the Gram Panchayat was cailed. In thc sald meeting 6ram Panchayat resolved on the basis of majority to remove the petitioner from the post of Paichayat Karmi which was put to the 6ram Sabha which resolved on 28-1-2003 to remove the petitioner vide Annexure- D /R /< 1 !S/ w?/ i.1. (7) Return has also been filed on behalf of respondents 1 to 3 in which it has been stated thut the petitioner has not filed the appea!, therefore, he has not availed the provislons of Section 91 of the Chhati'isgarh Panchayat Raj Avam &ram Swarsj Adhiniyam, 1993. Therefore, alternative remedy was availuble to the petitioner and he has directly approached to this Court. It is incorrect to say that •the procedure prescribed in the Panchcyat Service (Discipline and Appeal) Rules, 1999 has not been followed and the enquiry was conducted by the petitioner as per the procedure prescribed in the Rules, 1999. i .;a;.^'?^ -.)e»a ^ (8) I have heard the learned counsel for the parties. (9) As far as the question of alternative remedy was available to the petitioner, the petitioner, in this petition, has challenged that the enquiry was not conducted in accordance with the Panchayat 5ervice (Discipline and ^ppeal) Rules, 1999 ond 1+ie petitioner was not given any opportunity'. Moreover, the case of the petitioner is that hte legal right has been vioiated, as the enquiry was not conducted as per the procedure prescribed and the ^sputed facts ars not invoived in this case. Moreover, tiie "u!e of an altemative remedy is •the rule of discretion and not of law. Therefore, In view of the above, I am of the opinion that the writ petition is maintainabie. (10) The first objection raised by the learned eounsel for respondents was that since the petitioner was working as Panchayat Secretary, 1+ierefore, as per the proyiso to sub-rule (3) of Rule-1 "the ru!es of Chhattisgarh Panchayat Service (ISiscipline and Appeal) Rulss, 1999 are not epplicab!e to the petitioner.' The proviso to sub-rule(3) of Rule-1 lay's down that "provided that nothing in these rules shall apply to officers and servants iif the state ssrvice who are posted under the Panchayats under Section 69 a-" are on ione service to the panchayetts under Section 71 of the Act." The ,e''titioner in this petition has categoricatly stated that he was appointed GS Panchayat Karmi on 15-12-95 and since then he is working as Panchayat Karmi. In one of the explanations it has appeared that since the post of Panchayat Secretary was vacant, therefore, the petitioner was directed to !ook after the work of the Panchayat Seeretary. TTierefore, I do not find any substance in the arguments of the Searned counse! for respondents. Even if we rely on the document filed by the counse! for respondents after arguments were over that the petitioner was declared as Panchayat Sachiv as per the Coilector's order dated 10-12-99, even then the proviso cpplies on!y to those officers who are on deputation and only to t}ie officers of the 5tate services who are appointed as Panchayat Secretary under Section 69 and it is notapplicable to the Panchayat Karmis who are working as Panchayat &cretary. Therefore, rules of 1999 were applicabie in the caseof the petitioner. ' @ 1 -.:—-^^-:'i' (11) Rule 5 of the said Rules prescribed the penalties and sub-rule (b) of Rufe-5 prescribed Major Penaities. Sub-rule (1) of Rule-7 tays down that "no order, ifflposing on a member of the Panchayet Service, any of the )ena!ties specified in chuse (iv) to (via) of rule 5 shai! be psssed except after a formal inquiry is he!d as far as may be, in the manner hereinafter provided." Since the major penatty was imposed on the petitioner, tiierefore, the procedure as envisaged in rule 7 ought to have been followed by the rs. (12) If we look into the sub-ruies 2, 3,4, 5, 6, 7, 8, 9, 10. & 11 of the said Ruies, none of these rules were foltowed by the respondents in conducting ths enquiry because the disciplinary authority did not frame de^finite charges on the basis of the statements of atlegations and such charges we.re. not communicated along with the statements of altegations and to require him to submit his written statement of defence nor he was informed as to whether he desires to be heard in person. In this case controdictory stond has been taken by the respondents. In one place they are saying that the Chief Executive Officer of the ©ramPanchayat, Dabra was api.ointed as Enquiry Officer whereas, the enquiry report has been submiti-ed by the Committee consisting of three persons namely, •rfie Chairmars, Dabra, Tehsildar, Dabra and the Chief Executive Officer, Janpad Panchayat Dabra. During the enquiry also it appears from the statsments of the witnesses that no opportunity was given to the petitioner to cross-examine the witnesses, Even after the submission of the report by the Enquiry Committee, the report of the Enquiry Commiftee and ths notice of the proposed penaity were not given to the petitioner nor he was asked as to whether he was wiiling to appoint anyone in his defence as defence nominee. Therefore, the enquiry was conducted totaliy in disregard and contravention of ftule 7 of the Ruies, 1999, therefore, whole enquiry stands vitiated. (13) Learned counsel for respondents while placing reliaice on the judgmentof the Hon'bSe Apex Court in the mstter of State Bank of Patia!a cnd others versus S.K. Sharma reportsd in (1996) 3 Supreme Court Cases •^..-vs- ':f-ySc^s:s&?!^ -1^% !'6:eiSi'sS~ 364 argued fnat the petitioner hiinself participated in the enquiry and even his statement was recorded by the Enquir^ Commiti-ee, therefore, he had waived a!! his rights and now, he cannot challenge the procedure of fne enquir,,' by way of this writ petition. He has not raised ainy objection at tiie time of the enquiry. (14) As has been mentioned above, the enquiry has been conducted in total disregard of the provisions of Rule-7 of the Ruies 1999. No charges y*r'e framed nor the charge sheet and the statements of aliegstions were served on the petitioner nor the other procedure prescribed in the sub rules (6), C7), (8), (9) & (10) was followed in this case. From the perusa! of the stctements of the witnesses it does not appear tiiat the opportunity was )iven to the petitioner to cross-examine the witnesses, but he had not cross- examined the witnesses. The facts of the judgment cited by the lecrned counsel for respondents are of no assistance in this case for the reason that in that case the de!inquent employee raised objection in the writ petition tnat the copies of statements of two witnesses which wsre recorded during the preliminary enquir/ were not given to the employee and the Hon'ble Apex tt..jrt held that;- "the employee was ailowed to inspect the statements of those two witnesses 3 doys prior to the date of the enquiry. l-1e inspected the stotements and at the time of enquiry' he had not asked for copies of those statements, therefore, in ifie circumstanws, he waived his right." the Hon'ble Apex Court further held that: •fs "Object of the ru!e of, is to ensure that there would not be feilure of justice- Where Slate or public interest requires curtailing of the rule,court should balnnce that interest with the requirements of natura! justice." Therefore, the focts o.f the present case are totally different from the above facts of the judgment of the Hon'ble Apex Court. In this case the enquiry was conducted totally in disregard of the rule-7 of the Rules, / -7 ^?^ (15) Therefore, in viewof the above, I am of the opinion that the enquiry wcis conducted totaily in disregard of the rule-7 of the ftules-1999; therefore, the order of termination o-f the petitioner is tiable to be quashed. (16) In the resuit, the writ petition is c!!owed and the order dated 29-1-2003 (Annexure-P/1) terminating the services of the petitioner is quashed. The respondents shall be at liberty to proceed with the matter in accordance with law. - /'^ (17) Looking to the facts and circumstances of the case, cost is made Sd/- t..C. Bhadoo Judge .'G;SV^