-^- ^..^'^^ ...i%^pt^^- ^:5^:::-"""' ('pldH/ y,,s»«---^ ,»i.6- IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH WRIT PETITION (S) N0.74^ BETWEEN OF 2007 0" ,<< /Hem RamPatel S/o Shri Vishwanath Patel, aged about 44 years, resident of Village Konari, degraded Panchayat Secretaiy (Panchayat Karmi) Konari, Tahsil Palari, District Raipur (CG). PETITIONER AND /l. State of Chhattisgarh, through the Chief Secretaiy, Panchayat Department, Mantralay D.K.S. Building, Raipur(CG). (2. The Du-ector, Directorate of Panchayat, Chhattisgarh, Raipur (CG). /3. CoUector, District Raipur (CG). y4. The Chief Executive Officer, Janpad Panchayat Palari, District Raipur (CG). /5. Sub Divisional Officer, Baloda Bazar, Raipur (CG). 6. Smt. Ganga Bai Baghel w/o. Siyaram Baghel, Then Sarpanch, Gram Pan|&chayat Konari, Tahsil Palari, '^y~ N^^ District Raipur (CG). J^ ^^- 7. Gram Panchayat Konari, Tahsil Palari District Raipur ^ / (CG). RESPONDENTS WRIT PETITION UNDER ARTICLE 226 OF CONSTITUTION OF INDIA FQR ISSUANCE OF WRIT/WRITS IN THE NATURE OF MANDAMUS/AND /OR/ CERTIORARI/AND /OR PROHIBITION/AND/OROTHERAPPROPRIATE ORDER/ORDERS HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.7401 OF 2007 PETITIONER HemRamPatel RESPONDENTS Versus State of Chhattisgarh & Others (Writ Petition under Article 226 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Shailendra Dubey, counsel for the petitioner. Shri M.P.S. Bhatia, Dy.,Govt.AdvocatefortheState. None for other respondents, despite service of notice. ORDER (ORAU (Passed on this 15th day of February, 2010) Heard. 1. The present petition, filed under Article 226 of the Constitution of India impugns the order dated 2.9.2002 (Annexure P/2), passed by the Collector, Raipur and the order dated 3.9.2007 (Annexure P/1), passed by the Director, Panchayat, Chhattisgarh, whereby the appeal preferred by the petitioner against the order of removal from service, has been dismissed. 2. Brieffacts, in nutshell, are that by order dated 1.11.1995 (Annexure P/3) the petitioner was appointed as Panchayat Karmi in Village Panchayat - Konari, Tahsil - Palari, District - Raipur. Thereafter, by order dated 15.6.1999 the petitioner was declared as Secretary. On a complaint made by the then Sarpanch Smt. Ganga Bai Baghel against the petitioner in regard to misbehaviour and assault in the meeting Gf the Village Panchayat, a criminal case was registered against the petitioner for the offence under Sections 354, 290, 323 of the Indian Penal Code and under Sections 3 (1)"(x) and 3 (1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short "the Act, 1989") in the Police Station, Balod Bazar. As a result of the registration of the criminal case against the petitioner, by impugned order dated 2.9.2002 (Annexure P/2), passed by the Collector, Raipur, the earlier order < 'IZ' v 1 's:'l ^•s •!.•- dated 15.6.1999, whereby the petitioner was declared Secretary, was cancelled with immediate effect. Being aggrieved by the order dated 2.9.2002 (Annexure P/2) the petitioner had preferred an appeal (Case No. 248/8-121/ 2001-2002) before the Commissioner, Raipur Division on 19.9.2002. After abolition of theoffice of the Commissioner, the matter was transferred to the Director, Panchayat, Chhattisgarh, wherein the matter was registered as Appeal Case No. 494/B- 121/03-04. Itis evident that the criminal case, being Special Sessions Trial No. 226/2002 (State of Chhattisgarh Vs. Hemram Patel) was tried against the petitioner, which resulted into acquittal of the petitioner from the charges for commission of offence under Sections 354, 290, 323 ofthe Indian Penal Code and under Sections 3 (1) (x)and 3(1) (xi) of the Act, 1989, vide judgment and order dated 7.12.2004 (Annexure - P/22) passed by the Special Judge (Atrocities), Raipur and thereafter no appeal was preferred thereagainst and, as such, the same attained finality. The Director, Panchayat, by the impugned order dated 3.9.2007 (Annexure P/1), dismissed the appeal, holding that looking to the allegation of criminal act against the petitioner, it would not be justifiable in law to reinstate the petitioner on the post of Secretary and accordingly, directed for initiation of procedure for appointment of a new Secretary in the Village Panchayat Konari. Thus, the petitioner has filed this petition. Learned counsel appearing forthe petitioner would submitthat the petitioner was removed from the post of Secretary by the impugned order dated 2.9.2002 (Annexure P/2) only for the reason that the criminal case was registered against him on the complaint made by the then Sarpanch. The original post of the petitioner is Panchayat Karmi on which he was appointed by order dated 1.11.1995 (Annexure P/3). 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Rule 10 ofthe Rules, 1999 reads as under: "10. Special procedure in certain cases.—(1)Notwithstanding anything contained in rule 7, 8 and 9.- (i) where a penalty is imposed on a Panchayat Servant on the ground of conduct which has led to his conviction on a criminat charge; or (ii) where the Disciplinary Authority is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to foltow the procedure prescribed in the said rutes, the Disciplinary Authority may consider the circumstances of the case of pass such orders thereon as it deems fit." 15. Bare perusal of the above stated provisions of law, it is apparent that no procedure as specified in Rule 7 of the Rules, 1999 can be dispensed with in case of major penalties i.e. removal from service. There is no dispute that the petitioner was acquitted in the criminal trial from the alleged offence under Sections 354, 290, 323 of the Indian Penal Code and under Sections 3 (1) (x) and 3 (1) (xi) ofthe Act, 1989. Therefore, it was necessary to take recourse to the procedure specified in Rule 7 ofthe Rules, 1999 before passing the order of removal, but nothing has been done in this case. The Appellate Authority has comgletely ignored the legal provisions before upholding the order of removal as proper order. 16. Non-obstante clause as provided under Rul'e 10 has over riding effect on other parts of the provision, but in the case on hand non-obstante clause could not have been invoked, as the petitioner was firstly; not convicted in a criminal charge; and secondly; no reasons were recorded to dispense with compliance of the procedure prescribed in Rule 7 ofthe Rules, 1999. ,4-^ ->v/'..II it'.g- ,-:S:-^B /•/ '• " "te®Basi vi '"8 @S« K .^iS^ft^. ^ --- :^ ^ Gowri 17. It is evident that the impugned removal order was passed without following the statutory and mandatory procedure of law, as prescribed under Rule 7 of the Rules, 1999. The procedure for holding an enquiry is enshrined in Rule 7 of the Rules, 1999 for imposition of major penalty. Hence, after acquittal of the petitioner in criminal case, the petitioner could not be removed from the post of Secretary/Panchayat Karmi without following statutory provisions of law and, as such, the removal is bad and vitiated. It amounts to infraction of not only the provisions of Rule 7 of the Rules, 1999 but also the provisions ofArticle 311(2) ofthe Constitution of India. The order was in fact pengl in nature, having civil consequences and as such compliance of the elaborate provisions, as enshrined in Rule 7 ofthe Rules 1999 was mandatory in the present case. (See Dhaluram Kosaria v. State of C.G. & others , which was referred approvingly in Anjordas v. State of Chhattisgarh & others }. 18. For the reasons mentioned hereinabove, the impugned order dated 2-9-2002 (Annexure - P/2) and the impugnedorder dated 3-9-2007 (Annexure - P/1) are quashed. 19. On the question of back wages, no foundation has been laid to establish the fact that whether the petitioner was gainfully employed elsewhere or not during this period. However, having regard to the fact that the petitioner was removed from the post of Panchayat Secretary on 2-9-2002 without following statutory provisions of law, 30% back wages would be sufficient in the interest ofjustice. 20. In the result, the writ petition is allowed to the extent indicated above. 21. There shall be no order asto costs. — Sd/'- Satish K. Agnifaom Judge 2 {2006(2) C.G.L.J. 186} 3 {2008 (III) MPJR-CG 1 10}