Heera Lal Pawar vs Department Of Panchayat And ...
2023 Latest Caselaw 7509 MP

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    IN THE HIGH COURT OF MADHYA PRADESH
                       AT I N D O R E
                               BEFORE
         HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                  DHARMADHIKARI
                                 &
   HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA



                 WRIT APPEAL No. 467 of 2022

BETWEEN:-
HEERA LAL PAWAR S/O SHRI CHAMPA LAL PAWAR, AGED ABOUT 66
YEARS, OCCUPATION: RETIRED PANCHAYAT SAMANVAYAK
ADHIKARI, DAWANA V.P.O. DAWANA TEHSIL-THIKRI, DISTRICT-
BARWANI (MADHYA PRADESH)
                                               .....APPELLANT
(SHRI L. C. PATNE, ADVOCATE)


AND
   STATE OF M.P., DEPARTMENT OF PANCHAYAT AND GRAMIN VIKAS
1. THROUGH SECRETARY VALLABH BHAWAN MANTRALAYA,
   BHOPAL (MADHYA PRADESH)
2. COLLECTOR, BARWANI (MADHYA PRADESH)
    CHIEF EXECUTIVE OFFICER JILA PANCHAYAT, BARWNAI
3.
    (MADHYA PRADESH)
   CHIEF EXECUTIVE OFFICER JANPAD PANCHAYAT, THIKRI, TEHSIL
4.
   THIKRI, DISTRICT-BARWANI (MADHYA PRADESH)
   JOINT DIRECTOR TREASURY, ACCOUNTS AND PENSION INDORE
5. DIVISION, MAHARAJA COMPLEX, KOTHARI MARKET, INDORE
   (MADHYA PRADESH)
    ACCOUNTANT GENERAL JHANSI ROAD, GWALIOR (MADHYA
6.
    PRADESH)
                                           .....RESPONDENTS
(SHRI AAKASH SHARMA, GOVERNMENT ADVOCATE)

__________________________________________________________
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       Reserved on                    :        20/02/2023

       Pronounced on                  :        09/05/2023

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       This appeal coming on for order this day, JUSTICE SUSHRUT

ARVIND DHARMADHIKARI passed the following:

                                      ORDER

Heard finally with the consent of both the parties.

2. This writ appeal filed under Section 2(1) of of the Madhya Pradesh Uccha Nyayalaya Ki Nyayapeeth Ko Appeal Adhiniyam, 2005 the appellant has assailed the legality, validity and proprietary of the order dated 07/12/2021 passed in W.P No.2465/2015 and the order dated 21/02/2022 passed in R.P. No.113/2022 whereby the writ petition has been partly allowed.

3. Earlier the appellant, a retired Panchayat Samanvayak Adhikari, Dawana, District-Barwani had filed writ petition under Article 226 of Constitution of India seeking following reliefs :-

"(a) To call for the relevant record of the case from the respondents;

(b) To quash the impugned recovery order dated 15/12/2014 (Annexure-P/4) issued by respondent No.4 and the show-cause notice dated 12/03/2015 (Annexure- P/9) issued by respondent No.2, by a writ of certiorari or any other appropriate writ, order or direction;

(c) To direct the respondents to make payment of retiral dues of the petitioner such as pension, gratuity, G.P.F., G.I.S., F.B.F and the excess amount of

Rs.40,771/- with interest @ 12% per annum, by a writ of Mandamus or any other appropriate writ, order or direction;

(d) To allow this petition with costs;

(e) To pass such other order(s) as may be deemed appropriate in the facts and circumstances of the case, to grant relief to the petitioner."

4. The learned Single Judge vide the impugned order dated 07/12/2021 has decided the writ petition has held as under :-

"12. It is apparent from the aforesaid show-cause notice that the respondent department also proposed an inquiry against the petitioner under Rule 9(1) of the M.P. Civil Services (Conduct) Rules, 1966 which was not the case of Narasimha Sundram's (supra) case.

13. In such facts and circumstances of the case, this Court is of the considered opinion that no illegality has been committed by the respondent No.2 in issuing the show-cause notice dated 12/03/2015 and the same is hereby affirmed.

14. Resultantly, the petition is partly allowed and disposed of in above terms. The respondents are also directed to clear the retiral dues of the petitioner, if any, within a further period of six weeks from the date of receipt of certified copy of this order."

5. Learned counsel for the appellant contended that the learned Single Judge erred in not considering the ratio of judgment rendered by Apex Court in the case of State of Bihar vs. Narasimha Sundram 1994 Supp (3) SCC 705 which has been followed by this Court in the case of Sajjan Singh Parihar vs. State of M.P. & others [W.P. No.5744/2003, decided

on 03/02/2006]. In the present case departmental enquiry has been proposed against the appellant under Rule 9(1) of the M.P. Civil Service (Conduct) Rules, 1966 by issuing a show-cause notice dated 12/03/2015. The appellant had submitted a detailed and exhaustive reply to the aforesaid show-cause notice dated 18/03/2015 denying each and every adverse allegations levelled made against him. Thereafter after considering the reply of the appellant, no enquiry certificate dated 11/05/2015 has been issued by controlling authority i.e. Chief Executive Officer, Janpad Panchayat, Thikri, District-Barwani in favour of the petitioner. The learned Single Judge failed to consider the important documents, therefore, came to the wrong conclusion. Even in review petition this was brought to the notice but the review was met with the same fate.

6. Learned counsel further contended that appellant stood retired on attaining the age of superannuation on 31/12/2013 as per record whereas actually he retired on 16/12/2014, therefore, show-cause notice issued to the appellant by the respondent No.2/Collector dated 12/03/2015 under the provisions of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 is without jurisdiction and not maintainable, since there is no master-servant relationship exists. However, the respondents could have instituted the enquiry with the sanction of His Excellency, the Governor of Madhya Pradesh under Rule 9(2) of the M.P. Civil Services (Pension) Rules, 1976.

7. Per contra, learned Government Advocate for the respondents/State opposed the prayer by supporting the impugned order passed by learned Single Judge and submitted that no interference is called for. He prayed that appeal deserves to be dismissed.

8. Heard the learned counsel for the parties.

9. It is not in dispute that appellant was appointed as Panchayat Secretary in the year 1972 and was subsequently posted as Gram Sahayak in the year 1982. He was also given the benefit of Kramonati in the year 2000, as also two advance increments in the year 1997 on account of family planning operation. Appellant was served with a notice of recovery dated 15/12/2014 issued by respondent No.4 alleging that in addition to the said two advance increments in the year 1997, two further increments have also been given to the appellant, which are liable to be recovered from the appellant. Another show-cause notice dated 12/03/2015 was also served on the appellant by the respondent No.2/Collector, Barwani receiving salary till 30/11/2014, despite the fact that the due date of retirement of appellant was 31/12/2013. Admittedly the appellant had worked on the post without any objection of the respondents and also performed his duties as assigned of election work from time to time, therefore, the amount of salary which was paid to him for the services rendered by appellant cannot be recovered. Admittedly, there is no interpolation in the service book, therefore, the charges appears to be baseless. The appellant worked in the department till 16/12/2014, therefore, in the light of Apex Court's judgment in the case of Narasimha Sundram (Supra) the appellant worked during that period has been held entitled for salary.

10. On perusal of the record, it is seen that the appellant had not misrepresented or played any fraud with the respondents. Admittedly, appellant has attained the superannuation on 31/12/2013 and continued to work upto 16/12/2014, therefore, in the light of Narasimha Sundram (Supra) and also in the light of no recovery certificate dated 11/05/2015, no recovery could have been made from the appellant. Accordingly, the show-cause notice dated 12/03/2015 is hereby set-aside.

11. Learned Single Judge erred in rejecting the claim of the salary of

the appellant for the period which he actually worked. The appellant is entitled for the same. Accordingly, the respondents are directed to implement the order passed by the learned Single Judge and also in addition to pay the difference amount of salary for the period which petitioner had discharged his duties till 16/12/2014.

12. This order be read conjointly with the order of learned Single Judge.

13. This writ appeal stands partly allowed.

No order as to costs.

         (S.A. DHARMADHIKARI)             (PRAKASH CHANDRA GUPTA)
                      JUDGE                         JUDGE
Aiyer*
Digitally signed by
JAGADISHAN AIYER
Date: 2023.05.09
15:12:15 +05'30'