Kerala High Court
Neeraj R.D vs Chenkal Grama Panchayath on 12 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA,
1943
WP(C) NO. 14228 OF 2021
PETITIONER:
NEERAJ R.D.
AGED 29 YEARS
S/O. RAJAN T, ACCREDITED ENGINEER,
(UNDER ORDER OF SUSPENSION),
CHENKAL GRAMA PANCHAYATH, AMARAVILA P.O,
THIRUVANANTHAPURAM,
RESIDING AT ARAMAM, PALAKKADAVU,
NEYYATTINKARA, THIRUVANANTHAPURAM.
BY ADV S.MOHAMMED AL RAFI
RESPONDENTS:
1 CHENKAL GRAMA PANCHAYATH
CHENKAL GRAMA PANCHAYATH,
REPRESENTED BY SECRETARY, CHENKAL ,
AMARAVILA P.O, THIRUVANANTHAPURAM-695 122.
2 THE SECRETARY,
CHENKAL GRAMA PANCHAYATH, CHENKAL,
AMARAVILA P.O, THIRUVANANTHAPURAM-695 122.
3 THE PRESIDENT,
CHENKAL GRAMA PANCHAYATH, CHENKAL,
AMARAVILA P.O, THIRUVANANTHAPURAM-695 122.
4 THE JOINT PROGRAMME CO-ORDINATOR/ JOINT
DEVELOPMENT COMMISSIONER,
MAHATHMA GANDHI NATIONAL RURAL EMPLOYMENT
GUARANTEE SCHEME, THIRUVANANTHAPURAM-695 013.
WPC No.14228 of 2021 (C)
2
5 BLOCK PROGRAMME OFFICER/ BLOCK DEVELOPMENT
OFFICER, BLOCK DEVELOPMENT OFFICER,
PARASSALA BLOCK PANCHAYATH, PARASSALA,
THIRUVANANTHAPURAM-695 502.
6 THE DISTRICT PROGRAMME CO-ORDINATOR/DISTRICT
COLLECTOR,
CIVIL STATION, KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM-695 005.
7 PARASSALA BLOCK PANCHAYATH,
REPRESENTED BY SECRETARY, PARASSALA,
THIRUVANANTHAPURAM-695 502.
BY ADVS.
R.T.PRADEEP
P.N.MOHANAN
M.BINDUDAS
K.C.HARISH
SRI. SUNIL KUMAR KURIAKOSE - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WPC No.14228 of 2021 (C)
3
JUDGMENT
The petitioner, who is stated to be working as an
Accredited Engineer on contract with the 1 st respondent
Chenkal Grama Panchayat, under the aegis of the Mahatma
Gandhi National Rural Employment Guarantee Scheme
("MGNREG Scheme" for short) as per Ext.P1, has approached
this Court impugning Ext.P7 order issued by the President of
the said Panchayat suspending him on the allegation that he
had "continued to do certain works" under the MGNREG
Scheme in violation of an interim order of this Court in W.P.(C)
No.19973/2020.
2. The petitioner asserts that since he has been
engaged by the Panchayat under the terms of the MGNREG
Scheme, the power to suspend the contract or to terminate
the same is vested solely with the 2 nd respondent - Secretary
of the Panchayat and that its President cannot do so. He then
supplemented his submissions by asserting that, in any event
of the matter, Ext.P7 is wholly improper because the
allegation therein is that he had "continued with certain
WPC No.14228 of 2021 (C)
works" in violation of the interim order of this Court in W.P.(C)
No.19973/2020, but that he was never made aware of such an
interim order and that he, in fact, continued the works as
expressly directed by the 4th respondent, through Ext.P6 order
dated 06.07.2021. He added that had he been aware of any
interdiction by this Court, he would have certainly not
continued the work in question; but that since the fourth
respondent issued Ext.P6, he was under the bonafide and
ligitimate impression that he was obligated to comply with the
same, which is especially because the Panchayat had, at no
time, instructed him not to act as per Ext.P6. The petitioner,
therefore, prays that Ext.P7 be set aside and the Panchayat be
directed to reinstate him forthwith.
3. I have heard Sri.S.Mohammed Al Rafi, the learned
counsel for the petitioner; Sri.P.N.Mohanan, the learned
counsel appearing for the 3rd respondent; Sri.R.T.Pradeep, the
learned counsel appearing for respondents 1 and 2 and
Sri.Sunil Kumar Kuriakose, the learned Government Pleader.
4. Sri.P.N.Mohanan, learned counsel appearing for the
WPC No.14228 of 2021 (C)
3rd respondent - President of the Panchayat, strenuously
defended, Ext.P7 order issued by his client, relying on a
counter affidavit filed by him on 30.07.2021. He argued that,
as per Section 156 of the Kerala Panchayat Raj Act, ("the Act"
for short) it is the President of the Panchayat who has the sole
competence to suspend an employee from service and he then
invited my attention to Section 180 thereof to show me that
the officers and employees of the Panchayat, other than
contingent employees, shall be Government Servants, the
control over whom, will be with the Panchayat.
5. Sri.Mohanan then, predicated that, as per Rule 8 of
the Kerala Panchayat Raj (Control Over Officers) Rules, 1997,
(hereinafter referred to as the "Rules" for short) the President
is authorised to suspend an employee of the Panchayat
referred to in the aforementioned Rule 180 and that he was
only, thereafter, enjoined to report it before the Committee
and seek its approval. He concluded his submissions by saying
that his client has acted in terms of the afore statutory
provisions and that he had reported the factum of the
WPC No.14228 of 2021 (C)
suspension of the petitioner to the Committee of the Grama
Panchayat in its next meeting, which led to Ext.R3(b) decision
ratifying Ext.P7 order. Sri.P.N.Mohanan, thus prayed that this
writ petition be dismissed.
6. Sri.R.T.Pradeep, learned Standing Counsel for the
1st respondent, however, opposed every contention of
Sri.P.N.Mohanan above, editing his submissions on the
averments in the statement filed by him on behalf of his client.
He asserted that the order to suspend the petitioner can only
be issued by the Secretary of Grama Panchayat, going by the
terms of the MGNREG Scheme. He then added that the
President of the Panchayat has acted in haste in issuing
Ext.P7, without even verifying whether the petitioner was
aware of the interim order of this Court in W.P.(C)
No.19973/2020; and that, therefore, his client had opposed it
in the meeting of the Panchayat, thus leading to him in having
exercised his powers under Section 182 of the Kerala
Panchayat Raj Act, to refer the matter to the Government. He
asserted that the Government has now issued Ext.R2(d) --
WPC No.14228 of 2021 (C)
which has been produced along with his additional statement
dated 12.08.2021 - unequivocally finding against Ext.R3(b)
resolution of the Panchayat. He submitted that, consequently,
the 4th respondent - Joint Programme Co-ordinator, has now
directed the Panchayat to reinstate the petitioner, as is
evident from Ext.R2(d); and thus, prayed that this writ
petition be allowed.
7. Sri.Sunil Kumar Kuriakose, learned Government
Pleader, appearing on behalf of the official respondents, also
took the clear position that, as per the provisions of the
MGNREG Scheme, the petitioner's engagement could have
been suspended only by the Secretary and not by the
President of the Panchayat. He then submitted that the
petitioner can never be seen to be an "employee" of the
Panchayat, as asserted by Sri.P.N.Mohanan because, as per
Section 180 of the Act, it is limpid that contingent employees
are excluded from his ambit. He further explained that if the
President of the Panchayat takes a view that the petitioner is
not a contingent employee, but a regular one, then obviously
WPC No.14228 of 2021 (C)
he would become entitled to permanency in tenure, as also to
subsistence allowance during the period when he is placed
under suspension. The learned Government Pleader submitted
that this would create deleterious situation in various
Panchayats; and therefore, prayed that Ext.P7 be not
approved by this Court.
8. As a corollary argument, Sri Sunil Kumar Kuriakose
contended that what ever be the legal worth of Ext.P7, it can
obtain force in law only if it had been properly ratified by the
Committee of the Panchayath, as per Rule 180 of the Rules.
He then invited my attention to Ext.R3(b) to show me that no
resolution has been adopted therein, but only the opinion of
the various members, both in favour and against Ext.P7 have
been recorded in it. He thus reiteratingly argued that Ext. P7
is illegal.
9. The rival contentions of the parties being so
recorded, it becomes luculent that three broad aspects are
placed for my consideration herein, namely; a) whether the
President of the Panchayat has the right to suspend the
WPC No.14228 of 2021 (C)
petitioner; and b) If so, whether the action of the President
has been validly ratified by the panchayat; (c) whether such
suspension is necessary at all in the factual circumstances.
10. On the first issue, as had seen above, the singular
claim of the 3rd respondent - President of the Panchayat is
that she has control over all "employees" of that Panchayat
and that it includes the petitioner also. If this contention is to
be accepted, then certainly the petitioner will have to come
within the ambit of section 180 of the Kerala Panchayat Raj
Act. However, pertinently, it is virtually conceded by
Sri.P.N.Mohanan, himself that the petitioner cannot be treated
as anything other than a contingent employee. If that be so, I
fail to understand how the President could have invoked any
power to suspend the petitioner because, at the best, he can
only be construed as a contingent employee, though this
Court has doubts whether he can be even so reckoned,
because his engagement is solely under the MGNREG
Scheme. Going by the said Scheme, there can be little doubt
that the petitioner's engagement has been made on the basis
WPC No.14228 of 2021 (C)
of a decision of the Panchayat, which had been given effect by
its Secretary and as per the resultant contract between the
parties ― which is available on record as Ext.P2 ― it is
extremely unlikely that the President of the Panchayat could
have taken any decision, as has been done in Ext.P7, since the
powers to do so, seems to be vested with the Secretary. In
fact, I record that this has been affirmed by the learned
Government Pleader, who submitted that the respondents 4
and 5 ― who are the competent authorities under the Scheme
― also strongly maintain that the petitioner could not have
been suspended by the President of the Panchayat, but only
by its Secretary, acting under the decisions of the Committee.
11. That said, it is interesting that when the Secretary
of the Panchayat exercised its powers under Section 182 of
the Kerala Panchayat Raj Act and referred Ext.R2(d) decision
of the Committee to the Government, they have now issued
Ext.R2(c) unambigously holding that the petitioner's
suspension by the President of the Panchayat is not in order.
Virtually, this is now led to Ext.R2(c) communication of the 4 th
WPC No.14228 of 2021 (C)
respondent - Joint Programme Co-ordinator, to the Panchayat,
to reinstate the petitioner.
12. When I find as above, the question whether
Ext.P7 has been properly ratified by the Committee of
the Panchayat, through Ext.R2(d), becomes more a matter
of academies than any other. However, since the
issue has been raised by the learned
Government Pleader, I deem it apposite to answer it.
13. There is no contest that Ext.P7 order of the
President can obtain any life only if it is properly ratified by
the Committee of the Panchayat. When one examines
Ext.R2(d), it becomes incontestable that no resolution has
been adopted by the Committee therein and that only the
opinions of the members, both in its favour and against, have
been recorded. Hence, as correctly contended by Sri.Sunil
Kumar Kuriakose, Ext.R2(d) cannot be even construed to be a
"resolution" of the Committee of the Panchayat; and
resultantly this Court holds that no legal ratification has been
obtained to Ext.P7 order of the President, as required under
WPC No.14228 of 2021 (C)
the Act and Rules.
14. Be that as it may, even assuming that this Court is
to find that the 3 rd respondent - President of the Panchayat
has any right to suspend the petitioner, the axiomatic question
is whether such an action was warranted in the facts of this
case. When, I say so, I am fully aware that, in normal
circumstances, this Court would not consider the validity of an
order of suspension and would have left it to the competent
Authority to make such an enquiry as is necessary. However,
in this case, the undisputed facts presented would clearly
demonstrate that an action like Ext.P7 at the hands of the
President of the Panchayat was wholly unnecessary and in
haste, because the allegation therein is that the petitioner had
acted in violation of an interim order of this Court in W.P.(C)
No.19973/2020. However, as is manifest from Ext.R2(b), as
well as Ext.P7, there is not even a whisper that the said
interim order of this Court had been made known to the
petitioner at any point of time and this is pertinent because,
concededly, he was not a party to the writ petition.
WPC No.14228 of 2021 (C)
15. That apart, even going by the interim order of this
Court ― a copy of which has been produced as Ext.R3(a) ― a
learned Judge of this Court only directed the Grama
Panchayat to give effect to one of its decisions, dated
16.09.2020 ― which is available on the files of this case as
Ext.P3. Crucially, in Ext.P3, instructions had been given by
the 4th respondent - Joint Programme Co-ordinator to the 5th
respondent - Block Programme Officer, to stop certain works
under the Scheme; and therefore, this Court, through
Ext.R3(a) interim order, directed the Grama Panchayat to do
so. However, pertinently, the same officer ― who issued
Ext.P3, thereafter issued Ext.P6 order on 06.07.2021,
directing that the said works be taken forward and the
petitioner is admitted to have acted only under its mandate.
The 3rd respondent - President of the Grama Panchayat,
however, issued Ext.P7 on 12.07.2021, alleging that the
petitioner has violated Ext.R3(a) - interim order. The
conceded position, that the Government has subsequently
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issued Ext.R2(d) followed by Ext.R2(c) instruction to the
Grama Panchayat, would lend full credence to the explanation
of the petitioner; and am consequently of the firm view that
the petitioner's suspension was unnecessary and improper by
the 3rd respondent - President of the Grama Panchayat.
16. Before I conclude, I must certainly record an
additional submission of Sri.P.N.Mohanan that, in fact, W.P.(C)
No.19973/2020 has been disposed of by a learned Judge of
this Court finally, through the judgment dated 06.08.2021,
wherein directions have been issued to the District Collector
"to interfere in the matter and take a decision on the
desirability of completing the project work in question", after
hearing the 4th and 5th respondents herein, as also the
Secretary of the Grama Panchayat. He asserts that the earlier
Ext.R3(a) interim order has been directed to continue, until
the District Collector takes a decision as above. This
submission of Sri.P.N.Mohanan, does not in any manner
impact my afore views because, it only means that the work in
question cannot be taken forward until the District Collector
WPC No.14228 of 2021 (C)
takes a decision. The judgment of this Court was delivered
only on 06.08.2021; while Ext.P7 suspension order was issued
on 12.07.2021. Therefore, even if it is accepted that, as per
the final judgment in W.P.(C) No.19973/2020, no further work
can be conducted; it does not justify the suspension of the
petitioner on 12.07.2021, on the ground that he had violated
Ext.R3(a) interim order, especially when the President is
unable to show that the order had been communicated or
known to the petitioner.
17. In the afore circumstances, I find it favour with
the petitioner and consequently, set aside Ext.P7 order.
18. After I dictated this part of the judgment,
Sri.P.N.Mohanan persisted with a fresh argument that Ext.P7
order had been issued by his client, after informing the
petitioner that Ext.R3(a) interim order had been issued by this
Court. However, even when I asked pointedly and repeatedly,
he was unable to show me any document in substantiation,
but he relied solely upon the contents of Ext.P7. When I
examine Ext.P7, it is crystally clear that there is not even so
WPC No.14228 of 2021 (C)
much as a murmur therein that the Panchayat or the 3 rd
respondent had intimated the petitioner about Ext.R3(a)
interim order of this Court or that he was asked not to
continue with the works because of the same. I cannot,
therefore, fathom on what basis Sri.Mohanan argues on behalf
of the 3rd respondent, that Ext.P7 order was issued after
intimating the petitioner that Ext.R3(a) order has been issued
by this Court or that he was directed not to continue the work,
based on the same.
I, therefore, can only find the persistence of the 4 th
respondent to be malafide and without basis; and hence,
consequently became inclined to impose exemplary costs.
However, I refrain from doing so, solely in indulgence.
This writ petition is thus ordered.
Sd/-
Devan Ramachandran, Judge
ww
WPC No.14228 of 2021 (C)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO. A6-730/020
DATED 16.6.2020.
EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED
17.6.2020 EXECUTED BY THE PETITIONER
AND 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.
A3/1395/2020/MGNREGS DATED 16.9.2020
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE DECISION DATED
16.6.2021 ISSUED BY THE PARASSALA
BLOCK PANCHAYATH.
EXHIBIT P5 TRUE COPY OF THE LETTER NO.
BP2/495/2021/PSLA DATED 30.06.2021
ISSUED BY THE SECRETARY, PARASSALA
BLOCK PANCHAYATH.
EXHIBIT P6 TRUE COPY OF THE ORDER NO.
PGC/2019/2020/MGNREGS DATED 6.7.2021
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED
12.7.2021 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN W.A. NO. 2071/2016
DATED 21.10.2016.
RESPONDENTS' EXHIBITS:
EXHIBIT R3(A) A TRUE COPY OF THE INTERIM ORDER DATED
25.09.2020 IN WPC 19973/2020.
EXHIBIT R3(B) A TRUE COPY OF THE RESOLUTION DATED
13.07.2021 OF THE GRAMA PANCHAYATH.
EXHIBIT R3(C) A TRUE COPY OF THE DECISION REPORTED
IN 2001 (2) KLT 286.
WPC No.14228 of 2021 (C)
EXHIBIT R3(D) A TRUE COPY OF THE JUDGMENT AS
REPORTED IN 2008 (3) KLT 800.
ANNEXURE R2(A) TRUE COPY OF THE REQUEST DATED
21.10.2020 TO LIFT THE BAN OF WORK
IMPOSED AND TO ALLOW TO COMPLETE THE
WORK BY PANCHAYAT BEFORE 4TH
RESPONDENT.
ANNEXURE R2(B) TRUE COPY OF THE REQUEST DATED
19.7.2021 TO REVIEW THE RESOLUTIONS
PASSED BY THE COMMITTEE TO STOP THE
WORK AND TO SUSPEND THE PETITIONER
FROM SERVICE.
ANNEXURE R2(C) TRUE COPY OF THE ORDER DATED 10.8.2021
BY THE 4TH RESPONDENT.
ANNEXURE R2(D) TRUE COPY OF THE ORDER DATED 11.8.2021
BY GOVERNMENT ENDORSING THE OBJECTION
OF SECRETARY OF GRAMA PANCHAYAT.
