Karnataka High Court

Sri M Somu vs State Of Karnataka on 3 December, 2021

Bench: S.G.Pandit

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF DECEMBER, 2021

                       BEFORE

          THE HON'BLE MR.JUSTICE S.G.PANDIT

      WRIT PETITION NO.49275 OF 2016 (S-RES)

BETWEEN:

SRI.M.SOMU,
S/O MADANAYAKA,
AGED ABOUT 42 YEARS,
RESIDENT OF HADYA POST AND VILLAGE,
HULLAHALLI HOBLI,
NANJANGUD TALUK,
MYSORE DISTRICT PIN-571301        ...PETITIONER

(BY SRI.VENUGOPAL.M.S, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       DEPARTMENT OF RURAL DEVELOPMENT
       AND PANCHAYATH RAJ,
       M.S.BUILDING, BENGALURU-01
       REPRESENTED BY ITS
       CHIEF SECRETARY

2.     THE ZILLA PANCHAYATH MYSORE,
       ZILLA PANCHAYATH BUILDING,
       CHAMARAJAPURA,
       MYSORE-570005
       REPRESENTED BY ITS
       CHIEF EXECUTIVE OFFICER,

3.     THE TALUK PANCHAYATH NANJANAGUD,
       TALUK PANCHAYATH OFFICE,
       NANJANAGUD,
                                  2



      MYSORE-571301
      REPRESENTED BY ITS EXECUTIVE OFFICER,

4.    HAADYA GRAMA PACHAYATH,
      HAADYA VILLAGE AND POST,
      HULLAHALLI HOBLI,
      NANJANAGUD TALUK,
      MYSORE DISTRICT-571301
      REPRESENTED BY ITS
      SECRETARY                             .... RESPONDENTS

      (SRI.D.S.SHIVANAND, ADVOCATE FOR R1,
      SRI.B.J.SOMAYAJI, ADVOCATE FOR R2)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE RESOLUTION PASSED BY THE R-4 DTD
26.08.2015 VIDE ANNEXURE-J AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                              ORDER

The petitioner is before this Court under Article 226

of the Constitution of India praying for writ of certiorari to

quash the resolution dated 26.08.2015 (Annexure-J)

passed by 4th respondent-Grama Panchayath dismissing

the petitioner from the post of Bill collector and also to

quash the order dated 09.06.2015 bearing

No.GPE/07/2014-15 passed by the 2nd respondent

(Annexure-H) by which the 2nd respondent has cancelled

the approval of petitioner's appointment.

2. Heard Sri.M.S.Venugopal, learned counsel for

the petitioner and Sri.B.J.Somayaji, learned counsel for

respondent Nos.2 to 4.

3. Learned counsel for the petitioner would

submit that the petitioner was temporarily appointed as

Attender on daily wage basis on 29.06.1994 and

subsequently, on 28.05.2013 the Panchayath resolved to

appoint the petitioner as Bill Collector-cum-Attender. As

could be seen from Annexure-C - resolution and

Annexure-F dated 12.11.2014, the appointment of the

petitioner as Bill Collector was approved by the 2nd

respondent-Zilla Panchayath.

        4.    On      the     complaint          of    one           Mr.Jayaram

proceedings        against    the   Executive              officer    of   Taluk

Panchayath,        Nanjangudu       was         initiated      in     complaint

No.51/2013 before Ombudsman, NREGA. In the said

proceedings, the Ombudsman made certain observations

against the petitioner herein. Based on the said

observations of Ombudsman, 2nd respondent-Zilla

Panchayath under Annexure-H - Official Memorandum

dated 09.06.2015 took a decision to withdraw the approval

of appointment of the petitioner. Thereafter, the 4th

respondent-Grama Panchayath resolved on 26.08.2015 to

dismiss the petitioner by imputing certain allegations of

misappropriations. Challenging both orders, petitioner is

before this Court.

5. Sri.M.S.Venugopal, learned counsel appearing

for the petitioner contends that both the proceedings which

are under challenge are the result of total violation of

principles of natural justice. The learned counsel would

contend that no notice was issued by the Zilla Panchayath

before withdrawing the approval of appointment of the

petitioner. He further contends that when the 2nd

respondent-Zilla Panchayath approved his appointment as

Bill Collector under Official Memorandum dated 12.11.2014

under Annexure-F, the 2nd respondent could not have

withdrawn such approval under impugned Official

Memorandum dated 09.06.2015 - Annexure-H. Moreover,

he submits that the 2nd respondent-Zilla Panchayat has

taken a decision to withdraw the approval of appointment

of the petitioner solely on the ground that the Ombudsman

has suggested to initiate criminal proceedings against the

petitioner; but the petitioner is not party to the

proceedings before the Ombudsman and no criminal case

nor complaint is filed against the petitioner till date.

6. Learned counsel for the petitioner would

further contend that the impugned resolution at

Annexure-J dated 26.08.2015 is passed by the 4th

respondent-Grama Panchayath in utter violation of

principles of natural justice; no notice was issued nor

enquiry was conducted while resolving to dismiss the

petitioner. It is his submission that when allegations are

imputed against a person that too, serious allegations of

misappropriation, unless enquiry is conducted, no order of

dismissal could be passed. Thus, he prays for allowing the

writ petition.

7. Sri.B.J.Somayaji, learned counsel appearing for

respondent Nos.2 to 4 submits that the petitioner was

initially appointed as an Attender without following the due

procedure. Further, the learned counsel for the

respondents-2 to 4 would submit that Annexure-F is a

temporary approval of appointment and if information

submitted by the petitioner was found false, liberty was

reserved to respondents for take action against the

petitioner. Further, he would submit that solely based on

the order of withdrawal of petitioner's appointment,

resolution to dismiss the petitioner was passed under

Annexure-J. It is also his submission that the petitioner is

not qualified and he has not passed SSLC. Thus, he prays

for dismissal of the writ petition.

8. The petitioner was initially appointed as

Attender in the 4th respondent-Grama Panchayath which

is evidenced by Annexure-A - resolution dated 29.06.1994.

Thereafter, under resolution dated 26.01.2001 -

Annexure-B, the 4th respondent- Grama Panchayath

resolved to appoint the petitioner as Attender-Cum-Bill

Collector. The appointment of the petitioner was approved

under Annexure-F dated 12.11.2014 as Bill Collector, as

required under Section 113 of the Karnataka Gram Swaraj

and Panchayat Raj Act, 1993. Once the appointment of the

petitioner is approved under Official Memorandum dated

12.11.2014 (Annexure-F), without issuing any notice to

the petitioner, the 2nd respondent could not have

proceeded under impugned Official Memorandum dated

09.06.2015 (Annexure-H) to withdraw the order of

approval of appointment. It is also to be noted that the

order of approval of appointment of petitioner was

withdrawn solely on the ground that the Ombudsman has

suggested to initiate criminal proceedings against the

petitioner. It is noticed from the order of Ombudsman that

the petitioner is not a party to the said proceedings.

Moreover, no criminal case nor complaint is registered till

this date against the petitioner. In that circumstances, I

am of the considered view that the impugned Official

Memorandum dated 09.06.2015 (Annexure-H) withdrawing

the approval of appointment would not stand to reason.

9. A perusal of resolution dated 26.08.2015 by

which the 4th respondent-Gram Panchayath resolved to

dismiss the petitioner indicates that certain allegations of

misappropriation are alleged against the petitioner. It is

alleged against that the petitioner unilaterally, without

calling for tender and without following the procedure, has

awarded contract. When such serious allegations are

imputed against the petitioner, it is necessary for the

respondent-Panchayath to issue notice to the petitioner

and conduct an enquiry.

10. The Division Bench of this Court, on

consideration of Section 113 of the Karnataka Gram

Swaraj and Panchayat Raj Act, 1993, in the case of

DEVENDRA -vs- STATE OF KARNATAKA,

DEPARTMENT OF PANCHAYATRAJ BY ITS

SECRETARY, BANGALORE AND OTHERS passed in

W.P.NO.200137/2018 at paragraphs 14 and 15 has held

as follows:

"14. Removal from service and also reduction in rank and termination of an

employee are all very serious matters, which will have very serious impact and consequences on the employee particularly, when the serious allegations of misconduct is alleged against the employee which will have a serious adverse effect on the future of the employee and it will definitely cast a stigma on the employee. It is further made clear here itself that if a temporary employee or probationer to whom the particular Rules of KCS are not applicable even then the principles of natural justice have to be applied. However, if an order simpliciter passed before completion of probation or even the employee is a temporary employee without making any allegations of his misconduct or any allegations, which cast stigma on him, in such eventuality, the following of principles of natural justice as noted above need not be necessary. In the above said background, now we come to the order impugned in this petition.

15. It is not the case of the Government, which passed Annexure-H that they have conducted any disciplinary enquiry on the petitioner before passing such an order. The order clearly discloses that some serious

allegations are made against the petitioner that, his conduct was not good and he has misappropriated the amount of the Gram Panchayat and also misbehaved himself with the officials in the Panchayat etc. Therefore, it clearly goes to show that there are serious allegations of misconduct against the petitioner. The Order dated 02.11.2016 which is impugned in this petition also discloses that only on the basis of the recommendation made by the Karnataka Lokayukta, it has been passed. The order does not disclose that after receipt of the recommendation made by the Karnataka Lokayukta, any notice has been issued by the Disciplinary Authority for conducting enquiry against the petitioner in order to pass any order as contemplated under Section 113 of the Gram Panchayat Act.

Therefore, in our opinion the said order is against the general principles of natural justice and as such the same is not in consonance with the principles laid down in various decisions of the Hon'ble Apex Court noted above.

Therefore, the impugned official memoranda being in contravention of the law laid down by

this Court in the afore-extracted judgments and the rules aforesaid is unsustainable."

11. In the case on hand also, as there was no

enquiry while taking a decision to dismiss the petitioner

under resolution dated 26.08.2015, I am of the considered

view that the said resolution requires to be set aside.

12. For the reasons recorded above, I pass the

following:

ORDER

(i) The impugned order bearing No.GPE/07/2014-15 dated 09.06.2015 (Annexure-H) as well as impugned resolution dated 26.08.2015 of 4th respondent resolving to dismiss the petitioner are quashed.

(ii) The respondents-2 to 4 shall reinstate the petitioner as Attender-Bill collector with continuity of service without back wages since the petitioner has not worked.