Karnataka High Court

Sri P Manjunath vs The Secretary on 13 January, 2021

Author: M.Nagaprasanna

                           1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JANUARY, 2021

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.55978/2016 (S - RES)

BETWEEN

SRI P.MANJUNATH
S/O SRI PALANNA,
AGED ABOUT 38 YEARS,
CLERK-CUM-DATA ENTRY OPERATOR,
MADHAKARI NAYAKARA KOTE
GRAMA PANCHAYATH,
AIMANGALA HOBLI, HIRIYUR TALUK,
CHITRADURGA DISTRICT,
R/AT BABBUR VILLGE, HIRIYUR TALUK,
CHITRADURGA DISTRICT 577 501.
                                              ... PETITIONER

(BY SRI M.P.SRIKANTH, ADVOCATE FOR
 SRI PARTHASARATHI M.S., ADVOCATE
 (VIDEO CONFERENCING))

AND

1.    THE SECRETARY
      GOVERNMENT OF KARNATAKA,
      RURAL DEVELOPMENT AND
      PANCHYATHRAJ,
      M.S.BUILDING,
      DR. B.R.AMBEDKAR VEEDHI,
      BENGALURU - 560 001.
                              2




2.   ZILLA PANCHAYATH
     BY CHIEF EXECUTIVE OFFICER,
     CHITRADURGA DISTRICT,
     CHITRADURGA - 577 501.

3.   THE EXECUTIVE OFFICER
     HIRIYUR TALUK PANCHYATH,
     CHITRADURGA DISTRICT - 577 501.

4.   MADHAKARI NAYAKARA KOTE
     GRAMA PANCHAYATH
     HIRIYUR TALUK,
     CHITRADURGA DISTRICT - 577 501
     BY ITS PDO.
                                               ... RESPONDENTS

(BY SMT.M.C.NAGASHREE, AGA FOR R1 (PHYSICAL HEARING);
  SRI N.PRAVEEN KUMAR, ADVOCATE FOR R2;
  R3 SERVED AND UNREPRESENTED))


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD.8.6.2016 PASSED BY THE R-2 VIDE ANNEX-Q;
DIRECT THE RESPONDENTS TO GRANT ALL SUCH CONSEQUENTIAL
BENEFITS ARISING THERE FROM AND ETC.


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

Petitioner in this writ petition has called in question the

order dated 08.06.2016 passed by the second respondent

whereby the second respondent directs the Gram Panchyath to

dismiss the petitioner from service on certain allegations and

consequently, the petitioner has been dismissed from service.

2. The petitioner joined the service of the fourth

respondent Gram Panchayath on 13.11.2016 as a Computer

Operator and the petitioner was fully qualified to hold the

post. After about 9 years of the petitioner functioning as

Computer Operator in the fourth respondent-Gram

Panchayath, the second respondent - Chief Executive officer

approved the appointment of the petitioner as a computer

Operator in the fourth respondent Gram Panchayath as is

required under law. Thus, the petitioner is a permanent

employee of the fourth respondent-Gram Panchayath.

3. It transpires that on certain allegations, the fourth

respondent - Gram Panchayath had resolved to terminate the

services of the petitioner on 01.09.2016 pursuant to which,

the second respondent Chief Executive Officer issued an order

on 08.06.2016 directing the fourth respondent Gram

Panchayath to dismiss the petitioner from service. It is this

order that is called in question in this petition.

4. Heard Sri.M.P.Srikanth, learned counsel appearing for

Sri.Parthasarathi.M.S., learned counsel for petitioner,

Smt.M.C.Nagashree, learned Additional Government Advocate

for respondent No.1 and Sri.N.Praveen Kumar, learned counsel

for respondent No.2.

5. The facts are not in dispute. The petitioner was

appointed on 13.11.2006 and his appointment was approved

in accordance with law on 30.4.2015 which makes him a

permanent employee of the fourth respondent Gram

Panchayath. The Gram Panchayath appears to have resolved

to dismiss the petitioner from service on account of certain

allegations - complaints received by the residents of the Gram

Panchayath against the petitioner. It is also not in dispute

that the petitioner services came to be terminated on account

of allegations against him which is evident from the order

passed by the Chief Executive officer directing dismissal of

petitioner from service.

6. Learned counsel appearing for Gram Panchayath

would place reliance on sub-section (3) of Section 113 of the

Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and

contends that the power to dismiss an employee is available

with the Gram Panchayath and no fault can be found with the

resolution of the Gram Panchayath to remove the petitioner

and the consequent order of the second respondent - Chief

Executive Officer giving a further direction to dismiss the

petitioner from service.

7. Admittedly, there is no enquiry concluded against the

petitioner prior to his dismissal from service. It is trite law

that a permanent employee of a Gram Panchayath cannot be

dismissed from service without holding an enquiry, but in the

case at hand, admittedly, no enquiry is conducted and on the

basis of a show cause notice that is issued to the petitioner, he

has been dismissed from service.

8. In identical circumstances, this Court in

W.P.No.48068/2018 disposed on 21.10.2020, has held as

follows:

"12. The order of removal is passed invoking Section 113(3) of the said Act, it is germane to consider the purport of the aforesaid Section and is extracted hereunder for ready reference:

"113. Appointment and control of employees.- (1) Subject to the provisions of Sections 111 and 112 the Grama Panchayat may, with the prior approval of the Chief Executive Officer appoint other employees of the Grama Panchayat and pay their salaries from the Grama Panchayat Fund:

Provided that in making appointments the appointing authority shall reserve posts

for the Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes of citizens in the same manner and to the same extent as is applicable for the recruitment to posts in the State Civil Services.

(2) The [Panchayat Development Officer] may, by order, fine [x x x] or withhold, the increment of any employee appointed by the Grama Panchayat.

(3) The Grama Panchayat may reduce in rank, remove or dismiss any employee appointed by it.

(4) An appeal shall lie against an order passed by the [Panchayat Development Officer] under sub-section (2) to the Executive Officer and against an order passed by the Grama Panchayat under sub- section (3) to the Chief Executive Officer [xxx] (5) Any appeal under sub-section (4) pending before the Mandal Panchayat or the Zilla Parishad on the date of commencement of the Karnataka

Panchayat Raj Act, 1993, shall stand transferred respectively to the Executive Officer and the Chief Executive Officer and such appeal shall be decided by them as if it had been filed before them."

13. The afore-extracted provision of law, no doubt empowers the Gram Panchayat to reduce in rank, remove or dismiss any employee appointed by it. But this cannot clothe the Gram Panchayat with the power to remove a permanent employee on grounds of misconduct, without holding an enquiry and giving reasonable opportunity to defend himself as the allegations made would remain allegations until it is substantiated by a process known to law failing which, it would amount to removal of an employee on the basis of suspicion.

14. It is trite law that any amount of suspicion cannot take the place of proof and proof can be arrived at only if a procedure to arrive at is followed. Thus, conduct of a departmental enquiry in the wake of the allegations of misconduct is mandatory and

cannot be obviated or circumvented in any manner.

15. Though the employee of a Gram Panchayat is not a civil servant in its true sense and would not get the protection of Article 311(2) of the Constitution of India nonetheless, a Gram Panchayat being a State under Article 12 of the Constitution of India and is bound by the rigors of Article 14 of the Constitution of India.

16. Therefore, even if a provision bestows power upon the employer to remove an employee for misconduct under any statute without holding an enquiry, natural justice and reasonable opportunity of defence will have to be read into such statutes failing which, the very exercise of such power and the manner of its exercise becomes blatantly arbitrary. More so, when an action under the statute is likely to result in loss of livelihood or cast a stigma on such employee. If the aforesaid interpretation is not given to such statutes, it would be giving absolute, unbridled and unguided power to the employer to dismiss an employee which would

not stand the test of Article 14 of the Constitution of India.

17. An instrumentality, agency or any other authority under Article 12 of the Constitution of India must act fairly, justly and reasonably as fair treatment is an essential inbuilt of principles of natural justice. It is apposite to quote the words of the Apex Court "reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution of India". Therefore, any act of unreasonableness or unfair treatment will fall foul of the rigors of Article 14 of the Constitution of India.

18. In the light of the aforesaid reasons, power being invoked in all cases by the Gram Panchayat against any permanent employee in terms of Sub-section (3) of Section 113 of the said Act to reduce them in rank, remove them or dismiss them from service on grounds of misconduct shall be only after conduct of a regular departmental enquiry."

In the light of the judgment of this Court in

W.P.No.48068/2018 disposed on 21.10.2020, the

following:

ORDER

(i) Writ petition is allowed.

(ii) Order at Annexure 'Q' bearing

No.g.pam/aa(9)/ma.gaa.raa.gra.u.kaa.yo/CR-17/

2016-17 passed by the second respondent dated

08.06.2016 is quashed.

(iii) The petitioner is directed to be reinstated into

service of the fourth respondent Gram Panchayath

and the Gram Panchayath is directed to hold an

enquiry against the petitioner on the allegations

that form the basis of issuance of show cause

notice and conclude the same within a period of six

months from the date of receipt of copy of the

order.