IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17.11.2011 CORAM: THE HON'BLE MR.JUSTICE V.DHANAPALAN W.P.No.3445 of 2008 R.Siva .. Petitioner Versus 1. The District Collector, District Collector, Villupuram District. 2. The President, Suthamalai Panchayat, Rishivandiyam Union, Villupuram District. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari, to call for the records on the file of the first respondent in proceedings No.Na.Ka.A4/6108/2007, dated -10.2007 and quash the same. For Petitioner: Mr.V.Raghavachari For Respondents: Mr.S.V.Durai Solaimalai, AGP for R1 Ms.D.Geetha for R2 O R D E R Heard Mr.V.Raghavachari, learned counsel appearing for the petitioner and Mr.S.V.Durai Solaimalai, learned Addl. Government Pleader appearing for first respondent and Ms.D.Geetha, learned counsel appearing for second respondent. 2. This Writ Petition has been filed, praying for the issuance of a Writ of Certiorari, to call for the records on the file of the first respondent in proceedings No.Na.Ka.A4/6108/2007, dated -10.2007 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner joined Suthamalai Panchayat as temporary Panchayat Clerk (part time) on 1.6.1998. The President of the Panchayat union was the appointing authority and by his proceedings Na.Ka.A1/1/98, he appointed the petitioner as a Clerk fixing the salary at Rs.450/- per month. The nature of work entrusted to the petitioner is to collect property tax, house tax and professional tax from the villagers and to remit the same into the bank. In the month of October, 2006, the services of the petitioner were made permanent and thereafter, he used to mark his presence regularly in the attendance. 3. Be that as it may, all of sudden, without even giving prior notice, the petitioner came to be terminated from service with effect from June 2006 by passing a resolution 6/2006 by the Ex-President. On verification of records, it is found the petitioner was suspended and he was prevented from attending his duties. Thereafter, enquiry was conducted and a report was submitted by the Assistant Block Development Officer, wherein, it is reported that the Ex-President of Suthamalai Panchayat suo motu passed a resolution 6/2006 terminating the services of the petitioner without even conducting the meeting and without getting concurrence of the members of the panchayat. Further, the said Ex-President was involved in misappropriation of funds of the panchayat. The grievance of the petitioner is that despite the above said report, he was not reinstated in service. Aggrieved by the same, the petitioner approached this Court by filing a writ petition in W.P.No.28514 of 2007, which came to be disposed of by this Court on 29.8.2007, directing the first respondent to consider the representation of the petitioner. Pursuant to the orders of this Court, the first respondent passed the impugned order, confirming the termination order. Aggrieved by the same, the petitioner filed the present writ petition. 4. First respondent has filed counter affidavit, wherein, it is stated that the petitioner was formerly Panchayat Assistant and he was dismissed from service by the Panchayat President based on the charges that he had failed to attend duty and he was frequently out of station. Pursuant to the orders of this Court in earlier writ petition filed by the petitioner, the first respondent has considered the representation and passed the impugned orders confirming the termination order and his removal from the post of Panchayat Assistant is appropriate and in his place, another person was appointed and the said termination order is sustainable. As per the file No.A2/2889/07 of Block Development Officer Rishivandiyam, it was found that the then Deputy Block Development Officer had conducted an enquiry in respect of petitioner's termination in the village on 8.11.2006 as per the directions of the Block Development Officer dated 12.9.2006 and submitted his enquiry report after conducting the enquiry. It is stated that failure on the part of the petitioner to discharge his duties and his frequent long absence are the prime https://hcservices.ecourts.gov.in/hcservices/ reasons for his removal from service. There may have been some procedural lapses on the part of the Panchayat administration in the process of the removal of the petitioner, but it is quite apparent from the deposition of the current Panchayat President that he would have also taken the same action against the petitioner and it is sustainable. Therefore, the action taken by the then President in removing the petitioner from service is in the larger interest of the panchayat and therefore, there is no need to interfere with the impugned termination order. With these averments, the respondent sought for dismissal of the writ petition. 5. The learned counsel appearing for the petitioner submitted that the impugned termination order is not legally sustainable since it was passed by the District Collector who is not the competent authority. According to the learned counsel, as per G.O.Ms.No.175, dated 15.12.2006, the competent authority is the Panchayat President who is the original authority and the first appellate authority is the Block Development Officer and the second appellate authority is the Inspector of Panchayats cum District Collector. When that being the position, admittedly, the impugned order of termination was passed by the first respondent/District Collector, who is not the competent authority and therefore, it is liable to be quashed. In support of his submission, the learned counsel for the petitioner relied upon a decision of this Court rendered in W.P.(MD) No.8602 of 2006 by its order, dated 22.4.2010, wherein, under similar circumstances, this Court has held as under in para 10: "10. ....If the power is to be exercised under Section 106 of the Act, G.O.(Ms) No.175 Rural Development and Panchayats (E5) Department dated 05.12.2006 is to be followed. Clauses V and VI of the aforesaid G.O. read as follows: fpuhk Cuhl;rpapd; eph;thfj;jpy; Cuhl;rp cjtpahsh; Jiwapd; tpjpKiwfis kPwy; xGf;f; ftdf; Fiwt/[ jFjpapd;ik flik jtWjy; jtwhd eltof;iffs; nghd;wtw;wpy; NHgl;lhy; me;j Cuhl;rp cjtpahsiu fzld; mguhjk; Cjpa cah;t[ my;yJ gzp cah;it epWj;jp itj;jy; my;yJ Kg;g[g; gl;oaypy; juk; ,wf;Fjy; my;yJ fPH;epiyg;gzpaplj;jpy; itj;jy; my;yJ fhyKiw Cjpaj;jpy; fPH;epiyapy; itj;jy; jw;fhypf gzpePf;fk; bra;jy; gzpapypUe;J ePf;Fjy; my;yJ gzptpyf;fk; bra;ayhk;. ,Ug;gpDk; mjw;F Kd;ghf me;j Cuhl;rp cjtpahsiu neuo tprhuizf;F miHg;gJ cl;gl mth; jdJ tpsf;fj;ij mspf;f mtUf;F nghjpa tha;g;g [ mspf;fg;gl;oUf;f ntz;Lk;. vdnt nky;KiwaPL - Cuhl;rpapd; Kot[f;F vjpuhd nky; KiwaPl;il Cuhl;rpj; jiythpd; Miz fpilf;fg;bgw;w 30 jp;d';fSf;Fs; tl;lhu tsh;r;rp mYtyh; (Cuhl;rp) nlk; gjpt[ bra;J bfhs;syhk;. nkYk; tl;lhu tsh;r;rp mYtyh; https://hcservices.ecourts.gov.in/hcservices/ (Cuhl;rp)-d; Kot[ kPjhd ,uz;lhtJ nky;KiwaPl;il tl;lhu tsh;r;rp mYtyh; (Cuhl;rp)-d; Miz fpilf;fg; bgw;w 60 jpd';fSf;Fs; khtl;l Ml;rpj; jiythplk; gjpt[ bra;J bfhs;syhk/; As per clause V of G.O.(Ms) No.175 Rural Development and Panchayts (E5) Department dated 05.12.2006, the delinquent officer/servant is required to be given a notice and offered an opportunity to defend his case. Even in the absence of the aforesaid G.O., it is fundamental that a person should be heard before his right is infringed in compliance of principles of natural justice." 6. The learned counsel for also relied upon a decision of this Court rendered in W.P.No.25033 of 2010, wherein, this Court, in similar circumstances, has held in para 4 as under: "4. ... As this Court finds that there was, in fact, no proper show cause notice issued and even in the so-called show-cause notice, there was over-writing to suit the convenience of the Panchayat, no importance can be attached to the same. When there was no proper show cause notice issued to the petitioner, the personal enquiry said to have been conducted by the first respondent on 29.08.2010 would in no way advance the case or cause of the respondents. It follows that the petitioner was placed under suspension without recourse to the procedure outlined in G.O.Ms.No.175, dated 05.12.2006 and in utter violation of the principles of natural justice, thereby, the impugned proceedings are rendered invalid in the eye of law." 7. Having regard to the above categoric decisions of this Court and in view of the admitted fact that the impugned order has been passed by the District Collector on –10.2007 that is subsequent to the G.O.Ms.No.175, dated 5.12.2006 wherein, the power has been entrusted to the Panchayat President to deal with the disciplinary matters and the District Collector, who is the appellate authority, cannot usurp the jurisdiction of Panchayat President and proceed with the disciplinary proceedings and impose the punishment of termination. 8. It is true that prior to the decision of the Government in G.O.Ms.No.175, dated 05.12.2006, the power was vested with the authorities and that power had to be exercised by them, as the same was the scheme of the Act. However, later on, the Government took a policy to entrust the said power of disciplinary proceedings and the procedure to be followed before imposing the punishment to the https://hcservices.ecourts.gov.in/hcservices/ President of the Panchayat, who is an elected representative. When such a power is entrusted to the President of the Panchayat, it is not proper on the part of the District Collector to deal with the subject matter in question. Therefore, the punishment imposed by the District Collector, terminating the employee of the Panchayat, namely, the petitioner herein, is totally uncalled for and without authority of law and jurisdiction. By the said act, the District Collector has exceeded his jurisdiction and encroached upon the powers of others, when the said power is not available to him, after the order of the Government in G.O.Ms.No.175. In other words, when an act is vested with a particular authority, the said authority alone can exercise such a power and jurisdiction and not anybody else. In the instant case, the said legal principle is violated and, therefore, the impugned proceedings passed by the District Collector are vitiated. Accordingly, the Writ Petition is allowed and the impugned order of termination passed by the District Collector/first respondent is set aside. However, it is made clear that this order will not preclude the second respondent village panchayat from making any enquiry and take action against the petitioner in respect of the charges alleged against the petitioner, after following the procedures as contemplated in G.O.Ms.No.175, dated 5.12.006. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. Suk To 1. The District Collector, District Collector, Villupuram District. 2. The President, Suthamalai Panchayat, Rishivandiyam Union, Villupuram District. 1 cc To Mr. V.Raghavachari, Advocate Sr 74898 1 cc to Govt. Pleader Sr.75202 W.P.NO.3445 OF 2008 ggk[co] gp/2.2 https://hcservices.ecourts.gov.in/hcservices/