Sikdar Chouhan vs Panchayat And Rural Development ...
2023 Latest Caselaw 2321 MP

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE PRANAY VERMA
                                             ON THE 9 th OF FEBRUARY, 2023
                                             WRIT PETITION No. 9333 of 2020

                           BETWEEN:-
                           SIKDAR CHOUHAN S/O SHRI MALSINGH CHOUHAN,
                           AGED ABOUT 30 YEARS, OCCUPATION: SERVICE, R/O:
                           GRAM    AVALDAMAN       JANPAD    PANCHAYAT
                           GANDHWANI, DISTRICT: DHAR (MADHYA PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI MANOJ MANAV - ADVOCATE)

                           AND
                           1.    PANCHAYAT AND     RURAL DEVELOPMENT
                                 DEPARTMENT DEPUTY ENGINEER VALLABH
                                 BHAWAN BHOPAL M.P. (MADHYA PRADESH)

                           2.    COMMISSIONER DIRECTORATE OF PANCHAYAT
                                 R A J SATPURA BHAWAN, BHOPAL (MADHYA
                                 PRADESH)

                           3.    JILA PANCHAYAT DHAR, THROUGH ITS CHIEF
                                 EXECUTIVE OFFICER, DHAR (MADHYA PRADESH)

                           4.    JANAPAD PANCHAYAT GANDHWANI THROUGH
                                 ITS CHIEF EXECUTIVE OFFICER, GANDHWANI,
                                 DISTRICT: DHAR (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (BY MS. BHARTI LAKKAD - PANEL LAWYER)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                            ORDER

The petitioner before this Court has filed the present petition being aggrieved by order dated 06.09.2018 (Annexure P-2) passed by the Chief Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 15-02-2023 10:45:32

Executive Officer, Jila Panchayat, District Dhar as affirmed by order dated 07.03.2020 (Annexure P-1) passed by the Commissioner Indore, Division Indore, in appeal by which a major punishment has been inflicted upon the petitioner i.e. removal from service.

Learned counsel arguing the matter has argued before this Court that without following the prescribed procedure as provided under the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 the services of the petitioner have been put to an end.

Reply has been filed in the matter and the reply nowhere reveals that any charge-sheet has been issued to the petitioner at any point of time, nor any

enquiry was conducted with the participation of the petitioner. This Court in the case of Ganesh Vs. State of M.P. reported in 2016 SCC OnLine MP 10360 has set aside the punishment order passed in similar circumstances. Paragraph 4 to Paragraph-7 of the aforesaid judgment reads as under:-

“4. The Division Bench of this Court in the case of Lalla Prasad Burman Vs. State of MP and others reported in [2008 (3) MPLJ 394] in paragraphs 6 to 9 has held as under :-

“6. Part III of the Rules,1999 provides for penalties. Rule 5 categorized the minor penalties and the major penalties which can be imposed on a member of the Panchayat Service. Under Clause

(b) major penalties which can be imposed on a member of a Panchayat Service have been enumerated and reduction in rank and removal from service have been categorized as major penalties. When a Secretary of a Gram Panchayat is either reverted to the rank of Panchayat Karmi or removed from the post of Secretary, he suffers a major penalty mentioned under Clause

(b) of Rule 5 of the Rules,1999.

7. Rule 7 of the Rules,1999 provides that no order imposing on a member of the Panchayat Service any of the major penalties shall be passed except after a formal inquiry is held as far as may be in the manner provided therein. Hence, unless the procedure laid down in the Rule 7 of the Rules,1999 is followed, the Secretary of the Gram Panchayat cannot be removed or reverted from the post of Secretary, Gram Panchayat. Therefore, the stand taken by the appellant that he could not have been removed from the post of Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 15-02-2023 10:45:32

Secretary, Gram Panchayat or could not have been reverted to a lower post of Panchayat Karmi without an inquiry appears to be correctâ€​.

8. Nonetheless, Rule 4 of the Rules, 1999 provides that the Appointing Authority or any authority to which it is subordinate or Disciplinary Authority may place a member of Panchayat Service under suspension where a disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence involving moral turpitude is under investigation, inquiry or trial . In the present case , since an inquiry into the charges of misconduct against the appellant has been ordered by the Collector, Shahdol, a disciplinary case is pending against him. That apart a criminal case for violation of the provisions of the Essential Commodities Act is also pending against the appellant. Hence, the Appointing Authority or the Disciplinary Authority or any authority to which the Appointing Authority is subordinate have the power to place the appellant under suspension. But instead of placing the appellant under suspension pending disciplinary proceedings and pending the criminal trial, the Collector, Shahdol has reverted the appellant to the rank of Panchayat Karmi or has removed him from the post of Panchayat Secretary contrary to the provisions of the Rules,1999 as discussed above.

9. In the result, we allow this appeal, set aside the impugned order dated 30.7.2007 passed by the learned Single Judge, quash the order dated 29.9.07 of the Collector Shahdol as well as the order dated 16.7.07 of the Commissioner, Rewa Division and leave it open for the Collector to pass an order of suspension of the appellant in accordance with the Rules, 1999.

5. On the other hand, learned counsel for the respondent Gram Panchayat has argued before this Court that the petitioner was served with Show Cause Notice and thereafter his services have been put to an end.

6. This Court in the light of the judgment delivered by the Division Bench of this Court in the case of Lalla Prasad Burman (supra), is of the considered opinion that mere service of Show Cause Notice will not make the termination order valid as at no point of time any charge sheet was issued and no enquiry was initiated against the petitioner and, therefore, the impugned order has to pave the path of extinction.

7. Resultantly, the impugned order dated 2/12/2015 is hereby quashed. The petitioner shall be entitled for back wages and all consequential benefits. The respondents are directed to pay back wages within a period of 30 days from today.â€​

The aforesaid judgment was subjected to scrutiny before Division Bench and the Division Bench of this Court in Writ Appeal No.338/2016 Gram Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 15-02-2023 10:45:32

Panchayat Vs. Ganesh reported in 2016 SCC Online MP 5820 has affirmed the order passed by this Court. Paragraph 4 and 5 of the aforesaid judgment reads as under:-

“4. Learned counsel for the appellant has drawn our attention to the Resolution No.5 and submitted that he was not a Panchayat employee but it has not been disputed that his salary has been paid from the Panchayat. He has also drawn our attention to Para-34 of the judgment in the case of Secretary, State of Karnataka vs. Umadevi and others reported in AIR 2006 SC 1806 and submitted that the order is contrary to the dictum of the Apex Court.

5. On due consideration of the aforesaid so also the fact that the respondent No.1 was working in Gram Panchayat since 1999 and without issuing any charge-sheet, his service has been terminated.

The ratio laid down by the Apex Court in the case of Umadevi (supra) will not be applicable in the present facts and circumstances of the case. No case to interfere with the impugned order, as prayed is made out. The writ appeal has no merit and is accordingly, dismissed.â€​

In the light of the aforesaid as no charge sheet was issued to the petitioner and the procedure prescribed in the Rules of 1999 was not followed, the impugned order passed by the respondents deserves to be quashed and is accordingly quashed. Respondents are directed to reinstate the petitioner in service, however a liberty is granted to proceed against the petitioner in accordance with law in case if need so arises in future.

Writ petition is accordingly disposed off. C.C. as per rules.

(PRANAY VERMA) JUDGE Shilpa

Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 15-02-2023 10:45:32